36-CA-009878 (N.L.R.B. Oct. 23, 2006)

Ferguson Enterprises, Inc.

National Labor Relations Board - Administrative Judge OpinionsOct 23, 2006

36-CA-009878 (N.L.R.B. Oct. 23, 2006)

JD(SF)–54–06 Portland, Oregon UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES SAN FRANCISCO BRANCH OFFICE FERGUSON ENTERPRISES, INC. and Cases 36-CA-9878 36-CA-9894 GENERAL TEAMSTERS LOCAL UNION 36-CA-9935 NO. 162, INTERNATIONAL BROTHERHOOD 36-CA-9952 OF TEAMSTERS 36-CA-9992 Adam D. Morrison, Esq. and Lisa Dunn, Esq. of Portland, Oregon, for the General Counsel. Sara Drescher, Esq. of Beaverton, Oregon, for the Charging Party. Victor J. Kisch, Esq., (Stoel Rives, LLP), Portland, Oregon, for the Respondent. DECISION Statement of the Case JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Portland, Oregon on July 25 and 26, 2006, based upon the third Order consolidating cases, second amended consolidated Complaint and Notice of Hearing issued on July 10, 2006 by the Regional Director for Region 19. The second amended consolidated Complaint alleges that Ferguson Enterprises, Inc., Respondent, violated Section 8(a)(1) (3) and (5) of the Act by promulgating and maintaining a rule prohibiting employees from discussing union activities with customers, by telling employees that they were not eligible for profitability bonuses because they chose to be represented by the General Teamsters Local Union No. 162, International Brotherhood of Teamsters (Union), by rescinding wage increases in retaliation for employees’ union activities and without notice to or affording the Union an opportunity to bargain, by promulgating and maintaining a rule prohibiting employees from taking truck keys and cell phones home without notice to or affording the Union an opportunity to bargain, by implementing a new truck assignment policy without notice to or affording the Union an opportunity to bargain and by failing and refusing to bargain in good faith with the Union. Respondent filed a timely answer to the second amended consolidated Complaint denying any wrongdoing. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 2 Findings of Fact Upon the entire record herein, including the briefs from the General Counsel, the Union and Respondent, I make the following findings of fact. I. Jurisdiction Respondent admitted it is a Virginia corporation, with facilities located in Portland, Oregon, where it is engaged in the operation of wholesale distribution of plumbing and related supplies. During the past twelve months, in the course of its business operations in Portland, Oregon, Respondent purchased and caused to be shipped to its Portland, Oregon facility goods valued in excess of $50,000 directly from firms located outside the State of Oregon. Based upon the above, Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. Labor Organization Respondent admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. The Alleged Unfair Labor Practices Respondent is engaged in the wholesale distribution of plumbing fixtures, heating and air conditioning systems, and waterworks facilities from over 1100 locations throughout the United States where it employs 21,000 employees. Respondent has collective-bargaining agreements with various unions at 45-50 of its facilities. Respondent’s Deputy General Counsel is David Meeker (Meeker). Meeker was Respondent’s chief spokesman throughout bargaining with the Union. Respondent’s Area Logistics Manager is Peter Condon (Condon) who is responsible for operating 27 of Respondent’s warehouses, including the facility in Portland. Douglas Nelson (Nelson) is Respondent’s Warehouse Manager in Portland. Greg Coultas (Coultas) is Respondent’s Warehouse Shipping Manager in Portland. Gregory Burback (Burback) is Respondent’s General Manager, responsible for the operation of 14 facilities in the Portland area. Rob Conner (Conner) was Respondent’s Operations Manager in Portland. Respondent admitted that Meeker, Condon, Nelson, Coultas, Burback, and Conner were agents of Respondent within the meaning of Section 2(13) of the Act. The Union was certified on April 1, 2005, as the exclusive collective-bargaining representative of Respondent’s employees in the following unit: All full-time and regular part-time drivers employed by Respondent at its 2121 N. Columbia Blvd., Portland, Oregon location; but excluding warehouse employees, temporary employees, guards and supervisors as defined in the Act. Philip Muter (Muter) was the Union’s Business Agent and chief spokesman during collective bargaining with Respondent. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 3 A. The Alleged Work Rule Changes 1. The Rule Prohibiting Employees from Discussing Union Activity with Customers a. The Facts After the bargaining unit drivers returned to work following the January 17, 2006 strike, Respondent’s Portland General Manager Burback conducted a meeting on January 20, 2006 for all unit drivers. During the meeting Burback said that he did not want drivers talking to Respondent’s customers about the strike. Before the strike Respondent had no rules prohibiting drivers from talking to its customers about non business subjects. While Portland Warehouse Manager Nelson denied that Burback prohibited drivers from communicating with customers or the media, Burback’s notes prepared for the January 20 driver’s meeting reflect that he discussed with drivers: What our expectations were when site deliveries were made and what we felt was acceptable to be communicated with our customers as they are sure to inquire about the situation. In a nutshell we discussed that during business hours the only comment should be “no comment” and they should ask customers (or anyone else for that matter, i.e. reporters) to contact me for further clarification.1 I find that Burback specifically prohibited bargaining unit drivers from discussing the strike with customers during business hours. b. The Analysis The Board has held that an employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824 (1998). In determining whether a challenged rule is unlawful, the Board must, however, give the rule a reasonable reading and it must not presume improper interference with employee rights. Lutheran Heritage Village-Livonia, 343 NLRB No. 75 (2004). The work rule in this case prohibited employees from discussing protected activity, the strike, with customers during business hours. Such a rule on its face limited employees from discussing protected activity and was chilling of section 7 rights. The rule was not properly limited to working time but extended to employee break and lunch time. Guardsmark LLC, 344 NLRB No. 97 (2005). Moreover, there is evidence that employees were free to discuss other subjects not related to their protected activity with customers during business hours. Teledyne Advanced Materials, 332 NLRB 539 (2000). I find that the rule prohibiting employee discussion of the strike violated Section 8(a)(1) of the Act. 2. The Rule Prohibiting Employees from Taking Home Cell Phones and Truck Keys and the New Truck Assignment Policy a. The Facts For a number of years before the January 17, 2006 strike, bargaining unit drivers were assigned to a specific truck and were allowed to take their truck keys and company cell phones 1 Respondent’s exhibit 57. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 4 home with them. Driver Balogh testified without contradiction that the assignment to and knowledge of a specific truck shortened the amount of time necessary to perform required safety inspections of the truck. Also access to the company cell phones after hours allowed drivers to communicate with customers regarding delivery requirements. After the strike on January 20, 2006, Burback testified that he learned for the first time on January 20, 2006 that unit drivers were taking cell phones and truck keys home. Burback immediately ordered Nelson to cease this practice. Nelson admitted that he immediately wrote a notice to drivers, prohibiting them from taking their cell phones and truck keys home. On January 24, 2006, unit driver Scott Minard (Minard) was issued a written warning for taking a duplicate truck key home between January 20 and 24, 2006.2 After unit drivers returned to work on January 20, 2006, Respondent’s shipping manager Coultas told drivers that they would no longer be assigned to a specific truck but that they would be informed of their truck assignment each morning. According to Respondent’s Warehouse Manager Nelson, the assignment of specific trucks was changed when Respondent heard that driver Meador, who had crossed the picket line, had missing truck keys and paperwork. The daily assignment to a different truck lasted for a few days and Respondent returned to the old policy of assigning drivers a specific truck. The Union was given no notice of the changes to Respondent’s policy regarding cell phones, truck keys or assignment to trucks. b. The Analysis The Board has made clear that in order to constitute a unilateral change that violates the Act, the employer's action must be a material, substantial, and significant change that has a real impact on, or causes a significant detriment to, the employees or their working conditions. Pan American Grain Co., 343 NLRB No. 47 (2004). In Pan American Grain the judge found no violation and the Board affirmed that requiring employees to sign a receipt for an overtime schedule was part of a long standing past practice of instructing employees to acknowledge receipt of documents by signing either the document itself or a separate acknowledgment form. In the instant case, the practice of assigning bargaining unit drivers new trucks each day was a material change that substantially affected the time required for employees to inspect the truck. Requiring employees to turn in their cell phones was also a material change since it affected bargaining unit drivers’ ability to communicate with customers to set up deliveries before and after working hours. By not allowing drivers to take truck keys home, Respondent made it more time consuming for drivers to park their personal cars in the spot vacated by the truck they were using that day. Unlike the facts in Pan American Grain, supra, Respondent’s changes to the practice of allowing drivers to take home cell phones and truck keys and assigning specific trucks was not grounded in a past practice. The new rules affected employees terms and conditions of employment and the failure to bargain over the changes violated Section 8(a)(1) and (5) of the Act. Moreover, the discipline issued to Minard for violating this rule likewise was unlawful under Section 8(a)(1) and (5). Great Western Produce, 299 NLRB 1004 (1990). 2 General Counsel’s exhibit 80. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 5 B. The Profitability/Incentive Bonuses 1. The Facts According to unit driver Balogh, during the meeting with unit drivers on January 20, 2006, Burback told drivers that they would not be eligible for profitability bonuses but would continue to participate in safety bonuses. Nelson denied he heard Burback discuss profitability or safety bonuses, however Burback could not recall if he said drivers could not participate in profitability bonuses and admitted he told drivers they could participate in safety bonuses. I credit Balogh and conclude that Burback told drivers that they could not participate in profitability bonuses. 2. The Analysis The Board has long held that an employer violates Section 8(a)(1) if it advises employees that it will withhold benefits because of union activities. Invista, 346 NLRB No. 107 (2006). In Invista the judge found that a supervisor informed employees that there would be no more bonuses as long as the Union was trying to get in. While the timing of Burback’s statement is suspect as it occurred immediately after employees returned to work after the strike, unlike the facts in Invista, there is no connection between the statement and protected activity as Burback did not state that the bonus was eliminated because of the strike or any other protected concerted activity. I find that Respondent did not violate Section 8(a)(1) of the Act by telling employees they were not eligible for profitability bonuses. C. The Wage Increases 1. The Facts On about September 24, 2005, Respondent gave unit drivers a pay increase.3 In mid October 2005, Burback held a meeting with unit drivers and told them that the pay increase was a mistake and that the wage increase would be rescinded. Burback notified Meeker of the pay error and on October 20, 2005 Meeker sent an email4 to Muter concerning the pay mistake, advising that it would be rescinded over two pay periods. All of the bargaining unit drivers but Ronald Meador, who told Respondent’s supervisors in December 2005 that he did not support the Union, had their September 2005 pay increase rescinded by early November 2006. Meador continued to receive the pay increase until May 2006. According to Burback the error in Meador’s pay occurred because the October 2005 list of drivers he created who should have their pay increases rescinded erroneously omitted Meador. The error was compounded when Burback verified his list of bargaining unit drivers with the Union’s seniority list5 which also excluded Meador. 2. The Analysis Counsel for the General Counsel contends Respondent violated Section 8(a)(1) and (3) of the Act in rescinding wage increases for all bargaining unit drivers but the one driver who did not support the Union. 3 General Counsel’s exhibit 2. 4 Respondent’s exhibits 24, 26; General Counsel’s exhibit 79. 5 General Counsel’s exhibit 4 at page 3. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 6 To establish a violation of Section 8(a)(3) of the Act Counsel for the General Counsel must establish the existence of protected activity, employer knowledge, and discrimination by the employer motivated by the protected activity. Once the General Counsel has established this prima facie case, the burden shifts to Respondent to establish that it would have taken the action even in the absence of the protected activity. Wright Line, 251 NLRB 1083 (1980). It is clear that the Respondent’s driver’s engaged in union activities that led to the certification of the Union as their collective-bargaining representative. There is also evidence of anti union animus in the interrogation of bargaining unit employees during the organizing campaign. However, General Counsel contends that the nature of the alleged discrimination here is not that the drivers received a pay raise but that the raise was rescinded for all those who supported the Union but not for the one individual who opposed the Union. General Counsel’s argument must fail because there is no evidence Respondent had knowledge that Meador did not support the Union until after the pay raises had been rescinded. While the pay raises were rescinded in October 2005, Respondent did not have knowledge Meador did not support the Union until December 2005. Moreover, it is apparent that the both the general pay raise to all drivers as well as the failure to rescind Meador’s raise were the product of clerical errors rather than an intentional effort to discriminate due to union or other protected activity. I will dismiss this portion of the complaint. D. Bargaining for the Initial Contract 1. The Facts a. The Evidence of Anti Union Animus Away from the Bargaining Table Prior to the March 28, 2005 Board conducted election among Respondent’s drivers, Peter Condon, Respondent’s Area Logistics Manager had a meeting with bargaining unit driver Cary Balogh (Balogh). Condon asked Balogh if he knew who brought the Union into the facility, how many people were involved in bringing the Union into Respondent’s facility, if Balogh were one of those who brought the Union into the facility, what Balogh’s position was on the Union and how Balogh was going to vote. Condon denied asking employees about their union activities or sympathies. I credit the testimony of Balogh. Condon admitted that one of the purposes of this meeting was to discover if there was Union activity at Respondent’s Portland facility. Given Condon’s purpose in meeting with bargaining unit drivers, Balogh’s testimony concerning interrogation would be reasonable. Also before the Board conducted election Respondent’s District Manager Al Byrd (Byrd) had a one on one conversation with unit driver Minard. It is uncontradicted that Byrd asked Mindard if he had signed a Union card. During a meeting of bargaining unit drivers before the election it is undisputed that Condon told drivers that they could end up losing their 401(k) enhancement that the company put in and that the Union could not force him to pay the drivers $20.00 an hour. b. The Bargaining Sessions On March 28, 2005, after the Board conducted election but before the Union was certified as the bargaining representative of Respondent’s Portland, Oregon drivers, Respondent’s Deputy General Counsel Meeks contacted Union Business Agent Muter in order to select dates to begin bargaining. After exchanging calls, the initial bargaining session was scheduled for April 26, 2005 in Portland. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 7 At the April 26, 2005 meeting the Union presented its initial proposals.6 The Union’s proposals were based in part on an agreement between Respondent and a Teamsters Local Union representing Respondent’s drivers in the Southern California area, Portland driver’s demands and Respondent’s Portland policies. Respondent commented on the Union’s proposals as the parties went through them. Meeker told Muter that Respondent would be bargaining from scratch in the Portland bargaining unit since it was the first time Respondent was engaging in initial bargaining in a newly certified bargaining unit. In all of Respondent’s other facilities where employees were represented by a union, Respondent had acquired a company with an extant bargaining relationship. Without offering a satisfactory explanation Respondent did not submit its first counterproposal to the Union until the second bargaining session on June 29, 2005.7 Respondent’s June 29, 2005 proposals included a management rights article that stated: ARTICLE 2-MANAGEMENT RIGHTS Section 1. Functions. Except as limited by a specific written provision of this Agreement, the employer retains exclusively the right to manage its business and to direct its associates including, but not limited to the following: to direct, plan and control operations; to change existing methods and performance standards, materials, equipment, facilities and accounting practices and procedures and/or to introduce new or improved ones; to utilize supplies; to determine what products or services shall be distributed, or performed, and to determine their design, marketing, advertising and pricing; to establish and change the hours of work (including overtime work); to select and hire associates, determine their training, assign them to work as needed, (to suspend, discipline and discharge associates for cause); to make and enforce reasonable shop rules not inconsistent with the provisions of this Agreement including the policies of the Employer applicable to all associates as set forth in the Policy Manual, and Safety Manual and other distribution methods; and, to lay off and to relieve associates from duty because of lack of work. The Employer shall [has] the right, during the term of this Agreement, to utilize subcontractors and to select and assign such duties as its deems appropriate to supervisory, casual and temporary personnel and other categories of associates to perform the work when needed.8 Respondent’s June 29, 2005 proposal concerning discharge and discipline stated in pertinent part: ARTICLE 15: DISCHARGE AND DISCIPLINARY LAY-OFF Driver associates shall be subject to discipline, suspension or discharge by the Employer pursuant to the policies established by the Employer and applicable to all driver associates, to the extent not inconsistent with this Agreement.9 6 General Counsel’s exhibit 4. 7 General Counsel’s exhibit 5 and Respondent’s exhibit 4. 8 Respondent’s exhibit 4 at page 2. 9 Id. at page 15. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 8 As reflected in the Union’s fax of July 18, 200510, at the June 29, 2005 bargaining session, the parties reached tentative agreement (TA) on the following subjects: Article 1- Union Security; Article 2-Management Rights, Sections 2 and 3; Article 5-Leave of Absence, Sections 2; Article 8-Hours of Work and Overtime, Sections 7, 10 and 12; Article 12-Grievance and Arbitration-Sections 1, 2 and 3; Article 13-Union Representatives: Article 14-Stewards; Article 17-Jury Duty, Sections 1 and 2; Article 18-No Discrimination; Article 20-Successors and Assigns; Exhibit A-Substance Abuse Policy and; Exhibit B-Attendance Policy. Meeker’s bargaining notes11 reflect that the parties deferred discussions on Article 2, Section 1-Management Rights, Article 3-Vacations, Article 4-Holidays, Seniority, Article 6-Work Protection, Article 7 Wages and Classifications, Article 8-Hours of Work and Overtime, other than Section 7, 10 and 12, Article 9-Tailgating, Article 10-Health and Welfare, Articles 11 and 12-Pension, Article 13-Strikes and/or Picket Lines, Article 14-Grievance and Arbitration other than Sections 1, 2 and 3, Article 17-Discharge and Disciplinary Layoff, Article 18-Funeral Leave, Article 21 Uniforms, Article 22 Transfer, Article 23 Duration. There was no agreement concerning the seniority provisions,12 Respondent’s right to subcontract13 and discharge and discipline.14 The next bargaining session took place on July 19, 2005. The Union made a counterproposal15 to Respondent’s management rights clause. The essential change in the Union’s proposal was to add the following language, “to suspend, discipline, and discharge associates for cause.” Respondent rejected this proposal. In addition the Union proposed that the management’s rights clause be modified to eliminate Respondent’s unlimited right to subcontract unit work and to have bargaining unit work performed by management. The Union’s language states, “The Employer shall have the right, during the term of this Agreement, to utilize subcontractors as long as all bargaining unit members are working or were scheduled to work. Management may perform bargaining unit work in emergencies.”16 This proposal was rejected by Respondent but as reflected in Meeker’s bargaining notes there was TA on the following language, “Management may perform bargaining unit work when bargaining unit associates are not immediately available.”17 In addition there were TA’s on Article 6-Sick Leave, Sections 1 and 2 and Article 8- Work Week, Section 1. The fourth bargaining session took place on August 10, 2005. At this session the Union discussed its counter proposals faxed to Respondent on July 22, 2005 regarding uniforms, management rights, sick leave, physical examinations, and grievance and arbitration.18 Meeker’s notes confirm that the parties agreed on the management rights language dealing with Respondent performing bargaining unit work.19 There was a TA on physical examinations. The parties discussed seniority, overtime and tailgating. Respondent rejected the concept of utilizing seniority and insisted upon merit as the determining factor for layoffs, recalls, 10 General Counsel’s exhibit 8. 11 Respondent’s exhibit 4. 12 General Counsel’s exhibit 4, page 3. 13 General Counsel’s exhibit 5, page 2. 14 Id. at page 15. 15 General Counsel’s exhibit 7. 16 Id. 17 Respondent’s exhibit 9, page 2. 18 Respondent’s exhibit 12. 19 Id. at page 2. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 9 promotions, filling job vacancies and other terms and conditions of employment. The Union demanded overtime after eight hours. Respondent rejected this proposal and insisted upon overtime after 40 hours. Tailgating Union proposal at Article 9, the practice of sending additional employees on delivery trucks to assist in unloading was tentatively agreed upon at this session. On August 18, 2005 Meeker cancelled a session scheduled for August 24, 2005 and he suggested meeting the week of September 12 or 19.20 On September 16, 2005, Meeker proposed meeting on September 29 and October 11 through 14, 2005.21 Muter agreed to October 11 through 14, 2005.22 Bargaining session five took place on October 13, 2005. Union Executive Assistant Denny Whitkopp (Whitkopp) attended this session and during the meeting, according the Meeker’s bargaining notes,23 Whitkopp declared impasse on the subjects of vacation, subcontracting, seniority and discipline. Whitkopp said that without agreement on seniority, a joint conference board for resolution of grievances, and the Union’s proposals for the management rights clause there could be no contract. Meeker’s notes and testimony reflect that he then agreed to the Union’s proposal for a joint conference board and that the subjects left without agreement were leave, strikes, wages, health and welfare, pension and the Teamster’s 401(k).24 Muter did not recall if there was a TA regarding the joint conference board. Both Balogh, a member of the Union bargaining committee and Muter denied that the parties agreed to grievance and arbitration language. I credit Meeker’s testimony over that of Muter and Balogh. Both Muter and Balogh’s memory of bargaining sessions was characterized by lack of recollection and lack of detail regarding specific topics of bargaining. On the contrary Meeker’s testimony concerning bargaining sessions was both explicit and detailed. Moreover, Meeker’s bargaining notes are consistent with his testimony concerning subjects of bargaining and specific agreements reached while the Union’s bargaining notes are sketchy and lack detail. On October 21, 2005 Respondent submitted a counterproposal.25 From Meeker’s October 13, 2005 email26 to Muter, it is clear this counterproposal was not intended to be a final offer. Consistent with Meeker’s bargaining notes of October 13, 2005, the Respondent’s October 21, 2005 counterproposal dealt with the subjects of sick leave, overtime, uniforms, management rights (subcontracting), seniority, discipline, vacations, tailgate, strikes, wages, health and welfare, pensions and 401(k). On November 15, 2005 Muter requested additional dates for bargaining.27 Again on November 21, 2005 Muter said the Union was available for bargaining on December 6, 8, and 13 through 15.28 20 General Counsel’s exhibit 32. 21 General Counsel’s exhibit 33. 22 Id. 23 Respondent’s exhibit 20. 24 Id. at page 2. 25 General Counsel’s exhibit 10. 26 General Counsel’s exhibit 39. 27 General Counsel’s exhibit 44. 28 General Counsel’s exhibit 45. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 10 A sixth bargaining meeting was held on December 8, 2005. The Union made counterproposals regarding sick leave, hours of work and overtime, uniforms, management rights, seniority, strikes, health and welfare, wages, pension and 401(k). The Union amended its opening wage proposal of $18.00, $18.75 and $19.50 per hour in the first, second and third years of the contract to $18.50, $19.00 and $19.50 per hour. The Union’s proposed management rights language amended the last sentence of Article 2, Section 1 to read, “The Employer shall have the right, during the term of this Agreement, to utilize subcontractors to the same extent as permitted prior to the effective date of this Agreement and management and other associates of the Employer may perform bargaining unit work when bargaining unit associates are not immediately available.”29 Meeker’s bargaining notes reflect that he added to the Union’s management rights proposal language that granted Respondent the “absolute and unlimited” right to subcontract to the same extent permitted before “the commencement of any union activity.”30 There was no agreement on the subcontracting language. However, it is clear from Meeker’s bargaining notes that a TA was reached sick leave, uniforms, vacations and tailgate delivery.31 On December 9, 2005 Respondent proposed its last, best and final offer.32 Respondent’s final offer reflected all TAs that had been reached to date together with those items where there was no mutual agreement. Respondent’s offer regarding wages reflected that CDL drivers would earn from $15.00 to $17.50 per hour and non CDL drivers would earn from $12.50 to $15.00 per hour. At this time Respondent’s bargaining unit drivers, with the exception of Meador who made $17.50 an hour, earned from 15.26 to 16.60 per hour.33 The Union struck Respondent on January 17 and 18, 2006. All employees returned to work on January 20, 2006. On January 31, 2006, Muter advised Meeker that the Union requested further dates for bargaining and that he would not be available February 5 through 10, 2006.34 On February 15, 2006 Meeker responded that Respondent would not be available for bargaining until the week of March 20, 2006.35 The seventh bargaining session took place on March 22, 2006. At this bargaining meeting Muter said that he did not understand the form of Respondent’s final offer of December 9, 2005 as it made reference to many other documents. Accordingly, Respondent redrafted it final offer in contract form.36 On March 23, 2006 Muter requested bargaining take place April 3, 4, 7, and 17 through 21, 2006.37 The eighth bargaining meeting took place on April 18, 2006, where the Union made a presentation concerning its pension plans and explained the differences between the Western 29 General Counsel’s exhibit 11. 30 Respondent’s exhibit 42. 31 Id.. 32 General Counsel’s exhibit 12. 33 General Counsel’s exhibit 2. 34 General Counsel’s exhibit 57. 35 General Counsel’s exhibit 58. 36 General Counsel’s exhibits 13 and 14. 37 General Counsel’s exhibit 62. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 11 Conference of Teamsters Pension and the Central States Pension plans. Respondent was concerned about its liability if it agreed to participate in under funded Teamsters Pension plans. The Union admitted that both Teamsters Pension Plans were under funded. There was no agreement on pension language. The parties met for bargaining a ninth time on April 19, 2006. At this session the parties discussed seniority. There were proposals and counter proposals made regarding this subject.38 At the tenth bargaining session on May 24, 2006, the parties discussed health and welfare and pension language with no agreement. The next day at the final bargaining session pension was again discussed and according to Muter there were no agreements. However Meeker’s bargaining notes reflect that the parties had TAs on grievance and arbitration, joint conference board, discharge, funeral leave, transfer and work protection.39 As of July 25, 2006, the parties had TAs with respect to numerous provisions of the proposed collective-bargaining agreement.40 The outstanding issues were subcontracting, seniority, wages, health and welfare, pension, no strike, no lockout and picket line. 2. The Analysis Section 8(d) of the Act defines the duty to bargain collectively as “the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession.” Good-faith bargaining “presupposes a desire to reach ultimate agreement, to enter into a collective-bargaining contract.” NLRB v. Insurance Agent’s Union, 361 U.S. 477, 485 (1960. “The Board's task in cases alleging bad-faith bargaining is the often difficult one of determining a party's intent from the aggregate of its conduct.” Reichhold Chemicals, 288 NLRB 69 (1988); Flying Foods, 345 NLRB No. 10, slip op. at 7 (2005). “From the context of an employer's total conduct, it must be decided whether the employer is engaging in hard but lawful bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of reaching agreement.” Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001). The Board has held that while insisting on a bargaining position is not itself evidence of a refusal to bargain in good faith, other conduct may be indicative of a lack of good faith including delaying tactics, unreasonable bargaining demands, unilateral changes in mandatory subjects of bargaining, efforts to bypass the union, failure to designate an agent with sufficient bargaining authority, withdrawal of already agreed-upon provisions, and arbitrary scheduling of meetings. Atlanta Hilton and Tower, 271 NLRB 1600 (1984). Counsel for the General Counsel contends that Respondent has engaged in surface bargaining by insisting on a broad management rights proposal that grants Respondent unlimited right to subcontract unit work, by engaging in regressive bargaining with respect to the subcontracting clause, by insisting on a discharge article with no just cause provision, by 38 General Counsel’s exhibit 16. 39 Respondent’s exhibit 93. 40 Respondent’s exhibit 96. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 12 requiring a no strike clause without arbitration, by proposing regressive wage provisions and by failing to meet at reasonable times all supported by Respondent’s anti union animus. It is not unlawful for an employer to propose and bargain for a broad management-rights clause. St. George Warehouse, Inc., 341 NLRB 904 2004; Commercial Candy Vending Division, 294 NLRB 908 (1989). In those cases where the Board found surface bargaining broad management rights clauses were accompanied by regressive bargaining, no strike provisions, absence of meaningful arbitration, discharge provisions giving the employer unfettered ability to discipline without regard to just cause, essentially leaving employees less than they would enjoy by simply relying on the certification without a contract. Public Service Co. of Oklahoma, 334 NLRB 487 (2001); Target Rock, 324 NLRB 373 (1997); Western Summit Flexible Packaging, 310 NLRB 45 (1993). Contrary to Counsel for the General Counsel’s assertion, I find no evidence of regressive bargaining. With respect to the subcontracting language Meeker added that Respondent’s right to subcontract would be “absolute and unlimited” this language was only a clarification of what Respondent had already proposed, i.e. subcontracting of bargaining unit work without limitation. Moreover, Respondent’s wage offer was not regressive. It represented an increase in pay over extant wages earned by bargaining unit drivers. As noted above, the pay increase granted drivers in September 2005, a unilateral change during the course of bargaining, was remedied immediately by restoring the status quo. Respondent’s broad management rights clause was not without limitation. Respondent’s right to discharge and discipline was limited by a just cause provision contained in the management rights clause. Further, contrary to Counsel for the General Counsel’s contention, I find that Respondent agreed to neutral arbitration as well as submission of grievances to a joint conference board. Last while there were only 11 bargaining sessions over a 15 month period, Respondent never refused to meet after the Union proposed dates for bargaining sessions. Over the course of 15 months of bargaining there were cancellations of meeting by both sides, there were delays in bargaining caused by a strike, by an initial delay in submission of Respondent’s counter proposals and by the Union’s failure to respond to Respondent’s last, best and final offer. I find no pattern by Respondent in delaying bargaining or refusing to meet at reasonable times. While it is clear that Respondent engaged in hard bargaining, there was no evidence that Respondent engaged in a plan to avoid reaching agreement. There was give and take by both parties during the course of negotiations Thus, there were agreements reached by the parties on many items including sick leave, uniforms, vacations and tailgate delivery, sections 2 and 3 of the management rights clause, section 2 of the leave of absence provision, sections 7, 10 and 12 regarding hours of work and overtime, grievance and arbitration union representatives, stewards, jury duty, no discrimination, successors and assigns, substance abuse policy, attendance policy, discharge, funeral leave, transfer and work protection. Significant concessions were made by Respondent with respect to union security and arbitration, including submission of disputes to a joint conference board. The record reflects that there was give and take on the issue of subcontracting with a TA on management’s right to perform bargaining unit work. There were proposals and counter proposals on the issue of subcontracting with the Union proposing that Respondent could subcontract to the same extent it did prior to the certification. While Respondent insisted upon its own pension program, it provided a reasoned basis for refusing to joint the Teamster’s JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 13 Western Conference Pension Plan. It was admitted by the Union that the Western Conference Pension Plan was under funded which could result in unfunded liability for Respondent. Respondent took the position that it did not want to participate in an unfunded pension plan. With respect to conduct by Respondent away from the bargaining table, I have found above that Respondent interrogated its employees concerning their Union activities before the election on March 28, 2005, that Respondent implemented an overly broad no solicitation rule and that Respondent engaged in unilateral conduct in implementing new work rules regarding truck assignments, truck keys and cell phones. Conduct away from the bargaining table is a factor the Board considers in determining if there has been a refusal to bargain. In those cases where the Board has found a refusal to bargain, the conduct away from the bargaining table is much more egregious that that found here. Significantly the Board has found surface bargaining where there have been “smoking gun” statements made by managers including statements that the employer had no intent of reaching an agreement, U.S. Ecology Corp., 331 NLRB 223 (2000); Western Summit Flexible Packaging, 310 NLRB 45 (1993). In this case Respondent’s conduct away from the bargaining table, while unlawful and chilling of employee Section 7 rights, does not evidence intent to engage in surface bargaining. Further, Respondent’s statements before the election that the drivers could lose the employer contribution to their 401(k) plan and that the Union could not force Respondent to pay drivers $20.00 an hour were only factual statements that did not suggest an intent by Respondent to avoid their obligation to bargain in good faith. St George Warehouse, Inc., supra. I find that Respondent did not violate Section 8(a)(5) of the Act by refusing to bargain in good faith with the Union by engaging in surface bargaining. I will recommend that this portion of the complaint be dismissed. Conclusions of Law Ferguson Enterprises, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. General Teamsters Local Union No. 162, International Brotherhood of Teamsters is a labor organization within the meaning of Section 2(5) of the Act. Respondent has engaged in conduct in violation of Section 8(a)(1) and (5) of the Act by unilaterally changing work rules that prohibited employees from taking home cell phones, truck keys and assigning designated trucks, by disciplining employee Scott Minard for taking home truck keys and by promulgating a rule prohibiting employees from discussing protected activities with customers during business hours. Respondent has not violated the Act in any other respect and the remaining complaint allegations are dismissed. The above are unfair labor practices affecting commerce within the meaning of Sections 2(6), (7) and (8) of the Act. Remedy Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist and to take certain affirmative action designed to effectuate the purposes of the Act. I shall order the Respondent to bargain with the Union as the exclusive collective-bargaining representative of its employees in the following described unit and on request by the Union meet and bargain in good faith: JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 14 All full-time and regular part-time drivers employed by Respondent at its 2121 N. Columbia Blvd., Portland, Oregon location; but excluding warehouse employees, temporary employees, guards and supervisors as defined in the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended41 ORDER The Respondent, Ferguson Enterprises, Inc., its officers, agents, successors and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain in good faith with General Teamsters Local Union No. 162, International Brotherhood of Teamsters as the exclusive collective- bargaining representative of its employees in the appropriate unit: All full-time and regular part-time drivers employed by Respondent at its 2121 N. Columbia Blvd., Portland, Oregon location; but excluding warehouse employees, temporary employees, guards and supervisors as defined in the Act. (b) Unilaterally implementing work rules prohibiting employees from taking home cell phones and truck keys and assigning designated trucks. (c) Disciplining employees for violating the above work rules. (d) Promulgating rules prohibiting employees from discussing protected activity with customers during business hours. (e) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, meet and bargain in good faith with the Union as the collective- bargaining representative of its employees in the described appropriate unit concerning terms and conditions of employment and, if agreements are reached, embody the agreements in a signed collective-bargaining agreement. (b) On request of the Union, rescind the work rules prohibiting employees from taking home cell phones, truck keys and assigning designated trucks. 41 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 purposes. JD(SF)–54–06 5 10 15 20 25 30 35 40 45 50 15 (c) Within 14 days from the date of the Order, rescind the discipline issued to Scott Minard on January 24, 2006. (d) Within 14 days after the date of this Order, remove from its files any reference to the unlawful discipline of Scott Minard and within 3 days thereafter notify Scott Minard in writing that it has done so and that the discipline will not be used against him in any way. (e) Within 14 days after service by the Region, post at its facilities in Portland, Oregon, copies of the attached notice marked “Appendix.” 42 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Company’s authorized representative, shall be posted by the Company immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company 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 Company has gone out of business or closed a facility involved in theses proceedings, the Company shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Company at any time since January 20, 2006. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C., October 23, 2006. _______________________ John J. McCarrick Administrative Law Judge 42 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted Pursuant to an Order of the National 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.” JD(SF)–54–06 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives or bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities WE WILL NOT refuse to bargain collectively with General Teamsters Local Union No. 162, International Brotherhood of Teamsters as the exclusive collective-bargaining representative of its employees in the appropriate unit: All full-time and regular part-time drivers employed by Respondent at its 2121 N. Columbia Blvd., Portland, Oregon location; but excluding warehouse employees, temporary employees, guards and supervisors as defined in the Act. WE WILL NOT unilaterally implement work rules prohibiting employees from taking home cell phones and truck keys and assigning designated trucks. WE WILL NOT discipline employees for violating the above work rules. WE WILL NOT promulgate rules prohibiting employees from discussing protected activity with customers during business hours. 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, on request, bargain with General Teamsters Local Union No. 162, International Brotherhood of Teamsters as the exclusive collective-bargaining representative of its employees in the appropriate unit: All full-time and regular part-time drivers employed by Respondent at its 2121 N. Columbia Blvd., Portland, Oregon location; but excluding warehouse employees, temporary employees, guards and supervisors as defined in the Act. WE WILL upon request of the Union, rescind the January 20, 2006 work rules prohibiting employees from taking home cell phones, truck keys, assigning designated trucks and prohibiting employees from discussing protected activities with customers during business hours. WE WILL rescind the discipline issued to Scott Minard on January 24, 2006. JD(SF)–54–06 WE WILL remove from its files any reference to the unlawful discipline of Scott Minard and within 3 days thereafter notify Scott Minard in writing that it has done so and that the discipline will not be used against him in any way. FERGUSON ENTERPRISES, INC. (Employer) Dated By (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Portland Subregional office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 601 SW 2nd Avenue, Suite 1910, Portland, OR 97204-1936 (503) 326-3085, Hours: 8:00 a.m. to 4:30 p.m. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE RESIDENT OFFICE’S COMPLIANCE OFFICER, (206) 220-6284. THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS Any interested individual who wishes to request a copy of this Notice or a complete copy of the Decision of which this Notice is a part may do so by contacting the Board’s Offices at the address and telephone number appearing immediately above.