Bebley Enterprises, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 328 Bebley Enterprises, Inc. and International Union of Painters and Allied Trades, AFL–CIO, Local Union No. 7 a/w International Union of Painters and Allied Trades. Case 8–CA–38181 December 29, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE On December 11, 2009, Administrative Law Judge Ar- thur J. Amchan issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel 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,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2 AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violat- ed Section 8(a)(3) and (1) by reducing Bobby Hill’s work hours, by changing his job classification from la- borer to clerk, by issuing him written discipline, and by discharging him, we shall order the Respondent to offer Hill full reinstatement to his former laborer job, or, if that job no longer exists, to a substantially equivalent posi- tion, restoring his working hours to that which he worked prior to the unlawful reduction of work hours, without prejudice to his seniority or any other rights or privileges 1 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. 2 We find merit in the General Counsel’s cross-exceptions to the judge’s inadvertent omission of standard remedial language for some of the violations found. Accordingly, we have amended the judge’s reme- dy, modified his recommended Order and substituted a new notice. Additionally, we shall modify the judge’s recommended remedy in accordance with our decision in Kentucky River Medical Center, 356 NLRB 6 (2010), by requiring that backpay and other monetary awards shall be paid with interest compounded on a daily basis. We shall modify the judge’s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). previously enjoyed, and to make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), plus daily compound interest as prescribed in Kentucky River Medical Center, supra. The Respond- ent shall also be required to expunge from its files and records any and all references to the unlawful reduction of Hill’s work hours, the unlawful change in job classifi- cation, the unlawful written discipline and the unlawful discharge, and to notify him in writing that this has been done and that the reduction of work hours, change in job classification, written discipline and discharge will not be used against him in any way. Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by repudiating the provisions of its automatically renewed 2004–2006 collective- bargaining agreement, we shall order the Respondent to honor the terms and conditions of that agreement, and any automatic renewal or extension of it.3 The Respond- ent shall also be ordered, if requested by the Union, to rescind changes in employment terms made on and after its repudiation of the collective-bargaining agreement. To the extent that any unlawful unilateral changes have improved the terms and conditions of employment of unit employees, the Order set forth below shall not be construed as requiring or authorizing the Respondent to rescind such improvements unless requested to do so by the Union. We shall order the Respondent to make all contractual- ly-required contributions to fringe benefit funds that it has failed to make since January 2009, including any additional amounts due the funds on behalf of the unit employees in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). Further, the Respondent shall reimburse unit employees for any ex- penses ensuing from its failure to make the required con- tributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in- terest as prescribed in New Horizons for the Retarded, supra, plus daily compound interest as prescribed in Ken- tucky River Medical Center, supra.4 In order to remedy 3 We shall leave to compliance the issue of whether the contract re- newed again in October 2009. 4 To the extent that an employee has made personal contributions to a benefit fund that have been accepted by the fund in lieu of the Re- spondent's delinquent contributions during the period of the delinquen- 356 NLRB No. 64 BEBLEY ENTERPRISES 329 the Respondent’s failure to deduct employee union dues as required by the agreement, we shall order the Re- spondent to deduct and remit union dues pursuant to val- id checkoff authorizations that have not been deducted since January 2009, with interest as prescribed in New Horizons for the Retarded, supra, plus daily compound interest as prescribed in Kentucky River Medical Center, supra. Finally, having found that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with information that is necessary and relevant to its role as the limited exclusive bargaining representative of the unit employees, we shall order the Respondent to furnish the Union with the information that it requested on De- cember 10, 2008 and January 29, 2009. ORDER The National Labor Relations Board orders that the Respondent, Bebley Enterprises, Inc., Toledo, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Implicitly threatening employees with loss of em- ployment if they continued to support and remain mem- bers of the Union. (b) Reducing the working hours, changing the job clas- sification, issuing written discipline, discharging, or oth- erwise discriminating against employees, because they support International Union of Painters and Allied Trades, AFL–CIO, Local Union No. 7 a/w International Union of Painters and Allied Trades, or any other labor organization. (c) Repudiating and/or terminating its collective- bargaining agreement with the Union, and any automatic renewal or extension of it. (d) Failing and refusing to make all contractually- required contributions to fringe benefit funds and failing to deduct and remit employee union dues pursuant to valid checkoff authorizations. (e) Failing to furnish the Union with information that is necessary and relevant to its role as the limited exclu- sive collective-bargaining representative of the unit em- ployees in the following appropriate bargaining unit: All specialized service workers, trainees, and helpers employed at the Employer’s Toledo, Ohio facility, but excluding office clerical employees, professional em- ployees, and all guards and supervisors as defined in the Act. cy, the Respondent will reimburse the employee, but the amount of such reimbursement will constitute a setoff to any amount that the Respondent otherwise owes the fund. (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) Within 14 days from the date of the Board’s Order, offer Bobby Hill full reinstatement to his former laborer job or, if that job no longer exists, to a substantially equivalent position, restoring his working hours to those that he worked prior to the unlawful reduction of his working hours, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Bobby Hill whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, with interest, in the manner set forth in the amended remedy section of the decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful reduction of working hours, the unlawful change in job classification, the unlawful written discipline, and the unlawful dis- charge, and within 3 days thereafter notify Bobby Hill in writing that this has been done and that the unlawful re- duction of working hours, unlawful change in job classi- fication, unlawful written discipline, and unlawful dis- charge will not be used against him in any way. (d) Honor the collective-bargaining agreement with the Union, and any automatic renewal or extension of it, including making contractually-required contributions to fringe benefit funds, deducting dues pursuant to valid checkoff authorizations and remitting amounts deducted to the Union, and complying with all other terms for all employees in the bargaining unit. (e) On request of the Union, rescind all changes in terms and conditions of employment for bargaining unit employees made during and after December 2008, and make whole all employees, the Union, and fringe benefit funds, with interest, for any losses that they may have suffered as a result of the failure to honor the collective- bargaining agreement, and any automatic renewal or ex- tension of it, in the manner prescribed in the amended remedy section of this decision. However, nothing in this Order shall be construed as requiring or authorizing the Respondent to rescind any benefit previously granted unless requested to do so by the Union. (f) Furnish the Union with the information that it re- quested on December 10, 2008 and January 29, 2009. (g) 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 agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 330 tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (h) Within 14 days after service by the Region, post at its Toledo, Ohio facility copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable 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 proceedings, the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate 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 December 10, 2008. (i) 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. 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 vio- lated 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 bene- fit and protection 5 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.” Choose not to engage in any of these protected activities. WE WILL NOT implicitly threaten you with loss of em- ployment for continuing to support and remain members of the Union. WE WILL NOT reduce your working hours, change your job classification, issue you written discipline, discharge, or otherwise discriminate against you, because you sup- port International Union of Painters and Allied Trades, AFL–CIO, Local Union No. 7 a/w International Union of Painters and Allied Trades, or any other labor organiza- tion. WE WILL NOT repudiate and/or terminate our collective- bargaining agreement with the Union, and any automatic renewal or extension of it. WE WILL NOT fail and refuse to make all contractually- required contributions to fringe benefit funds and fail to deduct and remit employee union dues pursuant to a val- id checkoff authorization. WE WILL NOT fail to furnish the Union with infor- mation that is necessary and relevant to its role as the limited exclusive collective-bargaining representative of the unit employees in the following appropriate bargain- ing unit: All specialized service workers, trainees, and helpers employed at the Employer’s Toledo, Ohio facility, but excluding office clerical employees, professional em- ployees, and all guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board's Order, offer Bobby Hill full reinstatement to his former laborer job or, if that job no longer exists, to a substan- tially equivalent position, restoring his working hours to those that he worked prior to the unlawful reduction of his working hours, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Bobby Hill whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against him, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful reduction of working hours, the unlawful change in job classification, the unlawful written discipline, and the unlawful discharge, and WE WILL, within 3 days thereaf- ter, notify Bobby Hill in writing that this has been done and that the unlawful reduction of working hours, unlaw- ful change in job classification, unlawful written disci- BEBLEY ENTERPRISES 331 pline, and unlawful discharge will not be used against him in any way. WE WILL honor the collective-bargaining agreement with the Union, and any automatic renewal or extension of it, including making contractually-required contribu- tions to fringe benefit funds, making dues deductions pursuant to checkoff authorizations and remitting amounts deducted to the Union, and complying with all other terms. WE WILL on request of the Union, rescind all changes in your terms and conditions of employment made during and after December 2008, and make whole all bargaining unit employees, the Union, and fringe benefit funds, with interest, for any losses that they may have suffered as a result of our failure to honor the collective-bargaining agreement, and any automatic renewal or extension of it. WE WILL furnish the Union with the information that it requested on December 10, 2008 and January 29, 2009. BEBLEY ENTERPRISES, INC. Thomas M. Randazzo, Esq., for the General Counsel. Joseph J. Solomon, Esq., Toledo, Ohio, for the Respondent. Thomas P. Timmers, Esq. (D’Angelo & Szollosi, LPA), of To- ledo, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Toledo, Ohio, on September 21 and 22, 2009. The International Union of Painters and Allied Trades, AFL–CIO, Local Union No. 7 associated with The International Union of Painters and Allied Trades (the Union) filed the initial charge in this matter on February 17, 2009. It filed amended charges on April 20, and May 27, 2009. The General Counsel issued a complaint on May 29, 2009. The General Counsel alleges that Respondent, Bebley Enter- prises, Inc., an industrial cleaning contractor, violated Section 8(a)(5) and (1) by repudiating and/or terminating its collective- bargaining agreement with the Union in December 2008, ceas- ing to make contributions to the Union’s fringe benefit funds, ceasing to deduct and remit union dues, and failing to furnish the Union with information it requested that is necessary for and relevant to the Union’s duties as collective-bargaining rep- resentative of Respondent’s employees. The General Counsel alleges that Respondent violated Sec- tion 8(a)(1) of the Act in December 2008, when its president, Thomas Bebley, told employees about his termination of Re- spondent’s contract with the Union. The General Counsel al- leges that Bebley’s remarks implied a threat of loss of employ- ment if the employees continued to support and remain mem- bers of the Union. The General Counsel also alleges that Respondent violated Section 8(a)(3) and (1) by reducing the hours of work for em- ployee Bobby Hill, changing his job classification from laborer to clerk, refusing to reinstate Hill to his laborer’s position when he was released from light duty, issuing Hill written discipline, and then discharging Hill on or about January 30, 2009. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Respondent, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, Bebley Enterprises, Inc., is a corporation en- gaged in industrial cleaning, including the cleaning of sewers, sewer manholes, and chemical tanks. Respondent’s office is in Toledo, Ohio. Respondent performs services valued in excess of $50,000 for entities which are directly engaged in interstate commerce. 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 is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Respondent’s Repudiation of its Collective- Bargaining Agreement The parties’ contractual relationship Respondent has been in business since 1989. In October 2000, it signed a collective-bargaining agreement with the Un- ion for a term of 3 years which covered its laborers/industrial cleaners. The agreement was entered into pursuant to Section 8(f) of the Act. Respondent also entered into a separate agree- ment with the Union covering the Company’s painters. Re- spondent has not repudiated the agreement covering the paint- ers and that contract is not at issue in this matter. The parties signed an extension of the agreement covering the laborers/cleaners in February 2004, which expired on Octo- ber 1, 2006. However, under the terms of the extension, this agreement continued year to year unless one party notified the other of a desire to change the agreement 60 days prior to Oc- tober 1, 2006, or the anniversary date of the extension. Neither party so notified the other between 2006 and December 2008. Thus, the General Counsel and Charging Party contend that the parties were bound to this agreement until October 1, 2009. However, since, as discussed herein, the Agreement was not legally terminated in 2009, it is effective under articles XXI and XXII, until at least October 1, 2010. Article XXII of the extension provides that if either party fails to comply with the terms of the agreement, it may be can- celled with 30 days notice. Respondent relies on this provision for its contention that it was privileged to terminate the collec- tive-bargaining agreement in December 2008. Events leading to Respondent’s repudiation of its relationship with the Union James Peppers became the business representative of the Un- ion in February 2006. In 2007, Peppers began to question whether Respondent was complying with Ohio’s prevailing wage law on projects subject to that statute. The Union filed a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 332 complaint with the State of Ohio alleging failure to comply with the prevailing wage law. Then it withdrew its complaint and filed a lawsuit against Respondent in February 2008. On November 26, 2008, Respondent’s president, Thomas Bebley, came to Peppers’ office with Eric Johnson, a consultant to Respondent. Bebley and Peppers discussed the Union’s concerns as to whether Respondent was paying its employees properly for overtime work. On December 9, 2008, the Union’s counsel made a public records request, via email, to the City of Toledo for all certified payroll reports submitted by Bebley Enterprises pertaining to sewer work on the Consaul Street project in East Toledo since July 1, 2008. City officials made inquires to Jason Tansey, an engineer with the Arcadis company, which acted as the city’s representa- tive on the Consaul project. Tansey responded to city officials on December 10, and sent a copy of his email to Gena White, Respondent’s office manager (GC Exh. 8). Repudiation/Refusal to Comply with the Union’s Information Request and Alleged Implied Threat of Loss of Employment On December 10, Thomas Bebley called Peppers and in- formed him that Respondent was terminating its Allied Trades (Laborer’s/cleaners) collective-bargaining agreement with the Union. Peppers asked Bebley for a list of Respondent’s current employees. Bebley refused to provide this to the Union on the grounds that it already had this information. Either on December 10, or soon afterwards, Bebley ad- dressed a number of his employees. He told them “that we were not going forward with our agreement, that they needed to con- tact their BA as to whether or not they want to stay with us or go forward with the Union” (Tr. 131).1 In January 2009, Bebley reiterated in writing his decision to terminate this collective-bargaining agreement (GC Exh. 10). Also, in January, Respondent unilaterally ceased making con- tributions to the Union’s Health and Welfare Fund that were required pursuant to the Allied Trades Agreement. It also ceased deducting union dues and remitting such payments to the Union. Respondent takes the position that it was entitled to repudiate the Allied Trades Agreement under article XXII of the contract because the Union failed to comply with the agreement when it sought information from the City of Toledo and other contrac- tors regarding its compliance with the Ohio prevailing wage law. Article XXII states that “if either party fails to comply with the terms of this Agreement, this Agreement may be can- celed with a 30-day written notice” (GC Exh. 6, p. 25). Bebley contends that the Union failed to comply with the collective-bargaining agreement in seeking redress outside of the dispute grievance procedure set for in article XIX and arti- 1 Employee accounts of Bebley’s remarks do not differ materially from Bebley’s testimony. Current employee Colen Williams testified that Bebley said that employees could stay with Respondent or stay with the Union; the Union didn’t find employees their jobs; Bebley did so. Former employee Leon Barnett testified that Bebley stated that if employees stayed with the Union, they should be looking for Jamie Peppers to find them a job. cle III, section 4, article III, section 4 provides: It is further understood that the employee on each job, will not interfere in any way with the affiliations of the employees of the Employer’s customers, or of the owner, or with the em- ployees of other contractors, provided such contractors are not performing work within the jurisdiction of this Agreement. The Union submits that this provision has nothing to do with this case. It contends that the clause merely prohibits the Union and its members from trying to organize the employees of cus- tomers who retain Bebley to do industrial cleaning work. Written information request: Respondent’s refusal to comply On January 29, 2009, the Union by counsel requested infor- mation about Respondent’s employees in writing. This request included: the names of all current employees; the identity of all former employees who had worked for Bebley in the prior 24 months; current wage rates; current fringe benefits; any chang- es to the terms and conditions of employment of Bebley’s em- ployees since its repudiation of the collective-bargaining agreement; the identity of all Respondent’s contracts and con- tracts on which it anticipated bidding and the identity of all projects on which Respondent was then working. On February 4, 2009, Respondent, by counsel, declined to provide this in- formation on the grounds that it no longer had a collective- bargaining relationship with the Union. Alleged discrimination against Bobby Hill Bobby Hill was hired by Respondent as an industrial cleaner in 2004. In 2005 or 2006, he left Respondent’s employment for a period of 8 or 9 months. When he returned, Hill often drove a truck which was used to vacuum debris out of sewers and man- holes. Hill was often, or at least sometimes, a crewleader on cleaning projects. In September 2008, Hill complained to Respondent’s presi- dent, Thomas Bebley, about the fact that employee Charlie Taylor was making several dollars more per hour than was Hill. Tr. 146.2 Hill told Bebley that he was taking his complaint to Union Business Representative James Peppers. In his meeting with Thomas Bebley on November 26, 2008, Peppers specifi- cally mentioned Bobby Hill’s concerns that he was not being paid everything that Respondent owed him (Tr. 82). Hill threatened to take his disputes with Respondent to the Union on a least several occasions (Tr. 524). Alleged discriminatory reduction in hours The General Counsel alleges in paragraph 8(a) of the com- plaint that on or about December 15, 2008, Respondent dis- criminatorily reduced Hill’s hours of work. Hill worked 133.50 hours in October 2008; 213.5 hours in November and 131 hours in December. 2 Much of Bebley’s testimony is qualified by statements that he “may have” said certain things, e.g., Tr. 145. However at Tr. 146, Bebley confirmed that Hill complained to him about his pay relative to Charlie Taylor’s and at Tr. 147, he confirms that in a meeting with Peppers in late November 2008, Peppers mentioned that Hill had brought his complaints to the Union. Therefore, I credit Hill’s testimo- ny that he told Bebley in September that he was going to the Union with his complaint about his wages. BEBLEY ENTERPRISES 333 Comparable figures for other laborers are as follows: Leon Barnett worked 160.65 hours in October; 196 in November and 210 in December. Charlie Taylor worked 160.15 hours in Oc- tober, 224.75 in December and 191 in December. Colen Wil- liams worked 128.25 hours in October, 226.25 in November and 180.75 in December (Exh. R-B-1). In early December 2008, Respondent hired Lamar Hogue to drive a second vacuum truck. Hill at this time regularly drove a vacuum truck. In the pay period ending December 13, Hogue worked 22 hours; Hill worked 35.75. In the pay period ending December 20, Hogue worked 54.50 hours and Hill worked 46.50. In the pay period ending December 27, Hogue worked 36.25 hours and Hill worked only 10.75. Hill’s hours in De- cember 2008 may have reduced in part due to the inability of a subcontractor to work in inclement weather. Comparisons of Hill’s hours with those of other employees for the month of January 2009 are difficult in as much as Hill was physically unable to perform his laborer’s duties from Jan- uary 21–29, 2009. Alleged Discriminatory Reclassification of Bobby Hill to a Clerical Position, Alleged Discriminatory Discipline and Termination Hill’s disciplinary record Respondent concedes that Bobby Hill was generally coop- erative with its customers. However, in the last year of his employment, prior to his termination on February 2, 2009, Re- spondent issued Bobby Hill a number of disciplinary notic- es/reprimands, which are mentioned in his termination letter. They are as follows: February 25, 2008, Hill was given an oral warning for not properly cleaning his respirator. Hill refused to sign the written documentation regarding this warning and testified that he was written up because he was the crew leader and another crew member failed to clean his respirator. June 4, 2008, Hill was given a verbal warning for failure to wear personal protective equipment. He admits that he did not wear his protective coveralls while inside his truck and appears to concede that he was required to do so. September 13, 2008: Respondent gave Hill an oral warning for failing to notify it that he was unavailable for weekend emergencies. Hill refused to sign the document. He contends that he advised Respondent a week prior to the incident that he would be attending a wedding. September 19, 2008: Respondent presented Hill with a no- tice admonishing him for failing to turn in employee timesheets on a Friday. Hill didn’t sign this notice either. He contends that he turned in his crew’s timesheets the following morning because on Friday he would have had to slide them under the door of Respondent’s office and was afraid they might be blown away. November 15, 2008: Bebley apparently suspended Hill for one day for failing to report to work and failing to notify Re- spondent that he was not coming in. Hill submits he did report to work in the morning, was sent home and was unable to come to back at Respondent’s request because he was at the hospital with his mother. Hill signed Respondent’s disciplinary form on this occasion. December 2, 2008: Respondent gave Hill a written repri- mand for failing to prepare for a job. Hill refused to sign the document. He contends it was not his fault that other employ- ees failed to properly load his truck. Bebley also apparently reprimanded Hill the same day for again failing to wear his protective coveralls inside his truck.3 December 16, 2008: Respondent presented Hill with a writ- ten reprimand for improperly pouring water out of his truck in violation of Respondent’s safety and environmental policies. The record does not indicate the nature of Hill’s alleged con- duct or whether or not he agreed with the reprimand. January 30, 2009: Respondent issued Hill a written warning for insubordination. It alleges that he refused to return all his company uniforms to the company for an inventory count. The motor vehicle accident of January 20, 2009 On January 20, 2009, Hill was involved in a motor vehicle accident while driving Respondent’s vacuum truck after work- ing at a Johns Manville plant. Before the accident occurred Hill notified Thomas Bebley that the truck’s steering was not working properly. Bebley claims he told Hill not to move the truck. Hill claims that Bebley told him to take it to the Compa- ny that serviced Respondent’s equipment. While turning a corner near the service facility, Hill collided with another vehicle, injuring the other driver sufficiently for the driver to be transported to the hospital by ambulance. This was the second vehicle accident Hill had been involved in while driving a truck for Bebley. The police cited Hill for the January 20, accident. Respondent presented Hill a reprimand for being at fault in this accident. It appears Respondent con- sidered using the accident as a basis for terminating Hill but did not do so on the advice of its consultant Bobbie Mancillas. Written warning for failure to notify Respondent of medical treatment; reclassification Within a day or two of the accident, Hill sought treatment at the Toledo Hospital. Afterwards, he sought treatment at Occu- pational Care Consultants (OCC), which was the health care provider to which Respondent’s employees were required to go after job-related injuries. OCC diagnosed a left shoulder strain and put Hill on light duty until January 26, 2009. Respondent issued Hill a written warning for failure to notify it before seeking medical treat- ment. Hill refused to sign this warning. On Friday, January 23, 2009, Hill reported to work. He testi- fied that he was sent home that day and returned to Respond- ent’s office on Monday, January 26. On Tuesday, January 27, Bebley informed Hill that his job was being reclassified from laborer to clerk. Hill was on light duty until January 29, when all the physician’s restrictions on his work activities were re- moved. Respondent was aware that Hill’s restrictions were removed as of January 29. Respondent’s termination of Bobby Hill On January 27, Respondent told Hill to bring all his uniforms 3 This reprimand is mentioned in Respondent’s February 2, 2009 termination letter to Hill. No documentation for this incident is in the record, although Hill concedes it occurred. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 334 into the office. Hill testified that Gena White told him that since he was being reclassified as a clerk, he didn’t need the uniforms. He testified further that when he objected, White told him he had to turn the uniforms in for “a count.” Respondent contends that all laborers were asked to turn in their uniforms and that Hill was terminated, at least in part, due to his insubordinate refusal to comply with this directive. As discussed in more detail, later, I find that the General Counsel made a prima facie case that Respondent discriminatorily disci- plined and terminated Bobby Hill and that Respondent has not met its burden that it would have fired him in the absence of his protected activity. First of all, I discredit Respondent’s testimony that the di- rective to Hill was a nondiscriminatory directive to all field employees.4 To the contrary, I find that at least initially only Hill was ordered to bring his uniforms into the office because Respondent did not intend to let him work in the field again. General’s Counsel Exhibit 37, a January 23, 2009 email from Gena White to Labor Cnsultant Bobbie Mancillas, establishes that as of that date Thomas Bebley was looking for an excuse to fire Hill and that the reclassification and directive regarding the uniforms was part of this plan to find a pretextual reason to discharge Hill. I rely in part of the following testimony in concluding that Respondent did not tell Hill to bring in his uniforms as part of a nondiscriminatory effort to count the uniforms of all employ- ees. There is no evidence, other than Respondent’s self-serving testimony, that the uniform directive was given to all employ- ees at or about the same time it was given to Hill. I conclude to the contrary that it was part of the plan to create a pretextual reason to discharge him. At Tr. 198 the General Counsel asked Bebley, “Now, as part of the—of the reclassification, you instructed Mr. Hill to bring in his uniforms; is that correct?” Bebley answered, “No, that had nothing at all to do with anything with reclassification. It had to do—it’s strictly a business decision that affected every- one. It was part of the uniform policy.” At Tr. 208–209, the General Counsel asked Bebley, “[I]sn’t it true that you told Bobby to bring those uniforms in because he was—he no longer needed them because he was a clerk?” Bebley responded, “I don’t recall that, but I may have said that, or that he wouldn’t be in the field. I think I probably would have said something like that.” The testimony of Gena White, Respondent’s office manager, is also conflicting as to the reasons for which Hill was told to bring in his uniforms. The General Counsel asked White if she told Respondent’s labor relations consultant, Bobbie Mancillas, that Hill was being required to return his uniforms because he didn’t need them as a clerk. She responded: 4 Gena White testified that all employees received notices with their check that they were required to bring their uniforms into the office. There is no documentary evidence of this in the record. Another reason that I decline to credit White and Bebley on this is- sue is the inconsistency of the reasons they gave for counting employ- ees’ uniforms. Bebley testified this was done because Respondent was deciding whether or not to retain its current uniform contractor (Tr. 232). White testified the inventory was made because Respondent was losing a lot of uniforms, Tr. 518–519. No. She had me reclassify him as a clerk for the week that he was in there [the office]. And I said, well he won’t be using his uniforms this week, so I’ll have him bring them in. That was based on what she told me . . . And everybody was bringing them in as well . . . Q. . . . . Is it not true that you informed Ms. Mancillas on January 26 that you were changing his classification to office clerical, is that true? A. Yes, that’s what I told her. Q. Okay. And that you asked for the return of the uni- forms because they were not needed any more? A. Right. That’s correct. [Tr. 548.] White also testified that when Hill asked her if other em- ployees were being required to bring in their uniforms, her response was, “I’m talking to you. We’re not dealing with everyone else. I want yours,” (Tr. 519). This response is in- consistent with a general directive. An employer acting in a nondiscriminatory manner would have likely demonstrated to Hill that the directive was not discriminatory, for example, by showing him the notice that was included in other employees paychecks. On January 29 or 30, White gave Hill a reprimand for failing to turn in his uniforms. On January 30, Bebley asked Hill where his uniforms were located. Hill responded that some were at home and some were in the back of his truck. Hill went to the shop in the rear of the facility. Soon thereaf- ter, Bebley entered the shop with two police officers. The po- lice asked Hill why he was trespassing. Hill responded that he worked there. Then Bebley said, “no you don’t, you’re fired,” (Tr. 215–220).5 Later on January 30, Hill returned to Respondent’s facility with 8 uniform pants and 6 shirts belonging to Respondent. Bebley contends that Hill was given until February 2, to bring in the rest of his uniforms. Further, he contends that he fired Hill for a culmination of misdeeds, the final of which was Hill’s insubordination in failing to bring in the rest of his uni- forms. On February 2, 2009, Respondent sent Hill a letter stating that he was being terminated due to “accessive (sic) prohibitive violations from February 25, 2008 up to and including Jan. 30 2009.” The letter listed the disciplinary incidents mentioned earlier in this decision. Only two of these, the alleged Decem- ber 16 incident regarding pouring water out of his truck and the January 30 alleged insubordination occurred after Respondent repudiated its contract with the Union. The termination letter also stated: In addition to these violations you have had two (2) at fault accidents with company vehicles, equipment has 5 Bebley’s testimony at this point is very contradictory. I find that Bebley told Hill he was fired in the shop area on January 30. Bebley’s testimony at Tr. 216 appears to corroborate Hill’s testimony that he told Hill that he was fired in the shop; a few pages later Bebley recanted this testimony. BEBLEY ENTERPRISES 335 been misplaced and your attitude has become extremely confrontational. Finally, you were instructed to bring in your uniforms for count-that directive also has not been met as of 2:45 PM on Feb. 2, 2009, which is the final reason for this ter- mination. I credit Hill’s testimony that he was fired in the shop area and discredit Respondent’s testimony that he was given an additional opportunity to turn in the rest of his uniforms.6 In- deed, Thomas Bebley testified that he may have decided to fire Hill on January 30 (Tr. 222), a concession totally inconsistent with Respondent’s contention that it discharged Hill for failure to return the balance of his uniforms by February 2. Respondent’s reasons for many of the actions it took regard- ing Hill are generally inconsistent. In a submission to the Ohio Office of Unemployment Compensation, Respondent stated that the final event leading to Hill’s termination was insubordi- nation, i.e. failure to follow a management directive on January 29, 2009, to bring in his uniforms for an inventory count. Re- spondent then stated that Hill was uncooperative and belliger- ent concerning this directive on January 30, and then never returned to Respondent’s facility after January 30. In further communication with the unemployment office on March 11, 2009, Respondent stated that Hill was asked to bring his uniforms in on January 27, and that Hill refused to comply. Respondent then stated that Hill returned with the police and 8 pants and 6 shirts. Further, Respondent stated that Hill was given until February 2 to return the remainder of the uniforms or he would he charged for them. The company also stated that Hill refused to sign a disciplinary form and never contacted Bebley Enterprises after January 30. Thus, Respondent con- cluded this fax communication with the assertion that Hill’s employment ended because he was a “no call; no show- voluntary quit” (GC Exh. 34). Analysis Alleged Discrimination Against Bobby Hill In order to establish a violation of Section 8(a)(3) and (1), the Board generally requires the General Counsel to make an initial showing sufficient to support an inference that the al- leged discriminatee’s protected conduct was a ‘motivating fac- tor’ in the employer’s decision. Then the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (lst Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans- portation Management Corp., 462 U.S. 393, 399–403 (1983); American Gardens Management Co., 338 NLRB 644 (2002). Unlawful motivation and antiunion animus are often estab- lished by indirect or circumstantial evidence. The Board has held that when, as here, an employer offers inconsistent or shifting reasons for its actions, a reasonable inference may be drawn that the reasons being offered are pre- texts designed to mask an unlawful motive. Inter-Disciplinary 6 On February 2, 2009, Respondent also sent Hill a letter charging him $358 for missing uniform pants, shirts, and jackets. Advantage, Inc., 349 NLRB 480, 506 (2007), citing Mt. Clem- ens General Hospital, 344 NLRB 450, 458 (2005); Holsum De Puerto Rico, Inc., 344 NLRB 694, 714 (2005); and GATX Lo- gistics, Inc., 323 NLRB 328, 335 (1997). Shifting and incon- sistent justifications for an adverse personnel action often pro- vide a basis for concluding that such actions were discriminato- ry, Pacific Design Center, 339 NLRB 415 (2003). In this matter, I conclude that the General Counsel has made a sufficient initial showing to shift the burden to Respondent to prove that it would have discharged Bobby Hill in the absence of his union activity, or that his hours would have been reduced in December 2008, or that he would have been reclassified from laborer to clerk. I conclude further that Respondent had not met its burden. Reduction in hours Respondent knew that Hill was complaining to the Union about his pay in the fall of 2008. Respondent also harbored a great deal of animus towards the Union as the result of its in- quiries on December 9, 2008, regarding prevailing wage com- pensation and towards those of its employees it suspected of complaining to the Union. Almost simultaneously with Re- spondent becoming aware of the Union’s inquiries, Lamar Hogue began driving a vacuum truck for Respondent (GC Exh. 11, p. 14, GC Exh. 18, p. 23; GC 19, p. 9, Tr. 158–160).7 As a result, Bobby Hill’s hours declined as compared with his hours in November and as compared with other employees. It may well be that Respondent had a nondiscriminatory rea- son for hiring Hogue and assigning him work that could have been performed by Hill. However, since the General Counsel made a prima facie case of discrimination, it is Respondent’s burden to prove that it would have hired Hogue to perform this work in the absence of its antiunion animus. It has failed to do so. I would note that if Respondent needed to hire Hogue to drive a vacuum truck in December, there should be evidence that it hired another vacuum truck driver to replace Hill in Jan- uary, or evidence as to why it was unnecessary to do so. Reclassification of Hill to a Clerical Position and Failure to Restore Hill to his Laborer’s Position Gena White’s January 23, 2009 fax to Bobbie Mancillas is a veritable smoking gun as to the motivation for Respondent’s classification of Hill from laborer to clerk. The fax makes it quite clear that the Respondent reclassified Hill in order to create a pretext to fire him. There is no evidence that Hill was qualified to be a clerk or that this assignment was made with a view towards making him a safer driver or training him to per- form clerical duties. Respondent was also aware that Hill’s physical restrictions were of limited duration. The record establishes that Respond- ent did not contemplate returning Hill to his duties as a laborer when his restrictions expired. To the contrary, it intended to keep him in a job he was not qualified to perform. In fact, it 7 Thomas Bebley testified that he hired Hogue in October. The doc- umentary evidence in this record indicates that Hogue was hired in December, almost immediately upon Bebley’s verbal repudiation of his relationship with the Union. I discredit his testimony that Hogue was hired prior to December 10, 2008. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336 did so after it was informed that he was no longer under any physical restrictions from a physician. Written warning and discharge I find that the nondiscriminatory explanation Respondent has advanced for giving Hill a written warning on January 30, 2009, and then discharging him is pretextual. For one thing, Respondent was unable to give a consistent account of its con- duct. At Tr. 177–178, the General Counsel asked Thomas Bebley at what point in time did he determine that he wanted to fire Bobby Hill. Bebley responded that it was “[I] think in Febru- ary when, you know, the insubordination took place, that’s where these issues became, you know, sort of grave.” Bebley then confirmed that he was talking about Hill’s alleged failure to bring his uniforms in for an inventory count. At Tr. 223–234, Bebley testified that Hill was fired for a number of misdeeds, including becoming an increased safety risk. However, he stated that if Hill had returned his uniforms as requested, he might not have been fired. The February 2, 2009 termination letter that Respondent sent to Hill told him that he was being fired for all the disciplinary items that had occurred since February 2008, two at fault acci- dents with company vehicles, misplaced equipment, and his confrontational attitude. The letter concluded that Hill’s failure to bring his uniforms in for a count by February 2 was the final reason for Hill’s termination. Respondent’s office manager, Gena White informed the Ohio Unemployment office that Hill was terminated as no call/no show—voluntary quit for failing to return the balance of his uniforms (GC Exh. 34). (At Tr. 544.) White also testified that Hill was terminated for not showing up and not calling in on February 2. However, a January 23 email from White to Labor Consult- ant Bobbie Mancillas establishes that Thomas Bebley was look- ing for a reason to fire Hill even before Hill was asked to bring in his company uniforms (GC Exh. 37). Thus, the record as a whole establishes that Respondent’s assertion that it fired Hill for insubordination with regard to the uniforms and/or that he was terminated for failing to show up for work or calling in on February 2, is a pretext. Finally, Respondent’s discriminatory motive is established by its disparate treatment of Hill compared to other employees. I do not credit Respondent’s assertion that other employees were required to bring in all their uniforms at the same time that Hill was ordered to do so. However, even assuming that were the case, there is no evidence that anyone other than Hill was terminated or given a written warning for failure to account for all the uniforms issued to them. Other employees, at the worst, may have been charged for missing uniforms. Termination of the collective-bargaining agreement Respondent admittedly terminated its collective bargaining agreement with the Union before its expiration. It argues, without citing any authority that it was entitled to do so because of the Union’s inquiries to customers regarding its payment of the prevailing wage. This is not a valid reason for terminating an otherwise valid agreement. First of all, among employees’ Section 7 rights is the right to file concerted complaint about wages, B & M Excavating, Inc., 155 NLRB 1152 (1965), enfd. 368 F.2d 624 (9th Cir. 1966). Thus, Respondent could not terminate an employee for filing such a Complaint if it were concerted. Since the Union was acting on behalf of unit em- ployees in making inquiries regarding Respondent’s payment of prevailing wages, it is equally illegal for an employer to termi- nate a collective bargaining agreement for this reason. It is well established that Section 7 protects employee ef- forts, “to improve terms and conditions of employment or oth- erwise improve their lot as employees through channels utside the immediate employee-employer relationship.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978), Five Star Transportation, Inc., 349 NLRB 42 (2007). A Union and/or its members may communicate with third parties to advance such legitimate in- terests when the communication is not so disloyal, reckless or maliciously untrue to lose the Act’s protection, Arlington Elec- tric, 332 NLRB 845 (2000). Certainly, the Union herein was well within in rights in inquiring as to Respondent’s compli- ance with the Ohio prevailing wage statute. Moreover, there is no evidence that its communications were reckless or mali- ciously untrue. Moreover, I reject Respondent’s tortured interpretation of the collective-bargaining agreement. However, it is unnecessary to interpret the contractual provisions on which Respondent relies, because it clearly did not provide 30 days written notice of its cancellation of the agreement as required by Article XXII. Respondent informed the Union of its repudiation of the agreement in writing on January 20, 2009 (GC Exh. 10), after it verbally repudiated and ceased compliance with its terms.8 Thus, even as a contractual matter, Respondent illegally termi- nated its contract with the Union. As Respondent failed to present any legitimate reason for terminating its collective bargaining relationship with the Un- ion, I conclude that it violated Section 8(a)(5) and (1) in doing so and unilaterally changing the terms and conditions of em- ployees of its employees. Thus, for example, Respondent’s failure to continue its contributions to the Union’s fringe bene- fit funds and to deduct and remit union dues violates Section 8(a)(5). Failure to provide information requested by the Union Upon request, an employer has the legal duty to furnish its employees’ bargaining agent with information relevant and necessary to the performance of its statutory duties. NLRB v. Acme Industrial. Co., 385 U.S. 432. (1967). The law deems information about the wages, hours, and other terms and condi- tions of employment of unit employees to be presumptively relevant. Timken Roller Bearing Co., 138 NLRB 15 (1962). An employer’s statutory obligation to furnish the union rele- vant information, on request, absent special circumstances, is not relieved merely because the union may have access to the requested information from other sources, Postal Service, 276 NLRB 1282, 1288 (1985); New York Times, Co., 265 NLRB 353 (1982); Kroger Co., 226 NLRB 512 (1976). It necessarily follows from my conclusion that Respondent 8 Although the written notification is dated January 9, 2009, it was not mailed until January 20, Tr. 115, 369. BEBLEY ENTERPRISES 337 illegally repudiated its collective-bargaining relationship with the Union, that it violated Section 8(a)(5) and (1) in failing to comply with the Union’s information requests. Moreover, its factual defenses, i.e., that the Union already had the infor- mation and the information was available from other sources are completely specious with regard to much of the information requested. There is no evidence, for example, that in December 2008 and January 2009 that the Union had, or could obtain the in- formation it requested that pertained to Lamar Hogue, who Respondent hired in the fall of 2008 or any information as to the jobs Respondent was working at, or planned to bid in Janu- ary 2009. Respondent, by Thomas Bebley, violated Section 8(a)(1) by telling employees on December 10, 2009, that they should con- tact their business agent as to whether or not they wanted to remain employees of Respondent or “go forward with the Un- ion.” It is well settled that an employer violates Section 8(a)(1) by making statements that would reasonably tend to interfere with, restrain, or coerce employees in the exercise of their section 7 rights, regardless of whether employees are in fact intimidated by the remarks, Helena Laboratories Corp., 228 NLRB, 294, 295 (1977); Palagonia Bakery Co., 339 NLRB 515 (2003). A finding of restraint or coercion depends on the objective stand- ard as to whether such conduct reasonably tends to interfere with the free exercise of employee rights. I conclude that Bebley in suggesting that continued union membership was inconsistent with continued employment by Respondent re- strained and coerced its employees in the exercise of their Sec- tion 7 rights. CONCLUSIONS OF LAW 1. Respondent Bebley Enterprises, Inc., violated Section 8(a)(5) and (1) by repudiating and/or terminating its collective- bargaining agreement with the Union in December 2008, uni- laterally ceasing to make contributions to the Union’s fringe benefit funds, unilaterally ceasing the deduction and remittance of union dues and failing to furnish the Union with information it requested that is necessary for and relevant to the Union’s duties as collective-bargaining representative of Respondent’s employees. 2. Respondent violated Section 8(a)(1) of the Act in Decem- ber 2008, when its president, Thomas Bebley, in speaking to employees, implied a threat of loss of employment if they con- tinued to support and remain members of the Union. 3. Respondent violated Section 8(a)(3) and (1) by reducing the hours of work for employee Bobby Hill, changing his job classification from laborer to clerk, refusing to reinstate Hill to his laborer’s position when he was released from light duty, issuing Hill written discipline on January 30, 2009, and then discharging him. 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. The Respondent having discriminatorily discharged Bobby Hill, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of rein- statement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as comput- ed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Respondent must also remit to the Union all dues it was re- quired to withhold and transmit pursuant to the collective bar- gaining agreement, with interest, see Forest Hills Family Foods, 353 NLRB 411, 413 (2008); Merryweather Optical Co., 240 NLRB 1213, 1216 (1979). [Recommeded Order omitted from publication.]