Remgrit Corp.Download PDFNational Labor Relations Board - Board DecisionsFeb 28, 1990297 N.L.R.B. 803 (N.L.R.B. 1990) Copy Citation REMGRIT CORP 803 RemGrit Corporation and Retail, Wholesale and De- partment Store Union, United Retail and Indus- trial Union, Local 282, AFL-CIO and Industri- al Machine and Office Workers Union. Cases 39-CA-3630 and 39-CA-3646 February 28, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 16, 1989, Administrative Law Judge Joel P Biblowitz issued the attached decision The General Counsel filed exceptions and a supporting brief, the Respondent filed cross-exceptions and a bnef in support of its cross-exceptions and in reply to the General Counsel's exceptions, and the Gen- eral Counsel filed a bnef in response to the Re- spondent's cross-exceptions ' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions as modified 3 and to adopt the recom- mended Order as modified AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 5(a) and reletter the subsequent paragraphs "(a) Unilaterally modifying its collective-bargain- ing agreement during the term of the agreement by 1 The General Counsel filed a motion to partially strike the Respond- ent's brief in support of cross-exceptions, on the basis that the Respond- ent refers to certain facts not in evidence in support of its arguments We grant the General Counsel s motion, and thus strike fn 2 and that portion of p 12 that refers to fn 2 from the Respondent s brief 2 The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for re- versing the findings The judge failed to Include in the Jurisdiction' section of his decision commerce facts establishing the Board's jurisdiction over the Respondent Accordingly, we add the following undisputed commerce facts The Respondent, a South Carolina corporation with an office and place of business in Bridgeport, Connecticut, has been engaged in the production and nonretail sale and distribution of abrasive matenals During the 12-month period ending October 31, 1987, the Respondent purchased and received at its Bridgeport facility products, goods, and matenals valued in excess of $50,000 directly from points outside the State of Connecticut The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act 3 The judge, although finding that the Respondent engaged in direct dealing with its employees and modified its collective-bargaining agree- ment during the term of the agreement, failed to include these violations in his "Conclusions of Law" section, and failed to Include cease-and- desist provisions pertaining to these violations in his recommended Order Accordingly, we amend Ins Conclusions of Law and modify his recom- mended Order to Include such provisions granting wage increases to its bargaining unit em- ployees "(b) Bypassing the IMOWU and dealing directly with bargaining unit .employees concerning the granting of wage increases" ORDER • The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, RemGnt Corporation, Bridgeport, Con- necticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Substitute the following for paragraph 1(a) and reletter the subsequent paragraphs "(a) Unilaterally modifying its collective-bargain- ing agreement during the term of the agreement by granting wage increases to its bargaining unit em- ployees, provided, however, that nothing contained here shall be construed as authorizing or requiring the Respondent to order a return of the additional compensation "(b) Bypassing the IMOWU and dealing directly with bargaining unit employees concerning the granting of wage increase's" 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The -National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT unilaterally modify our collective- bargaining agreement with Industrial Machine and Office Workers Union by granting wage increases, provided, however, that nothing contained here shall be construed as authorizing or requiring us to order a return of the additional compensation WE WILL NOT bypass the Union and deal direct- ly with our bargaining unit einployees concerning the granting of wage increases, WE WILL NOT discontinue the deduction of union dues from the salary of our employees who authorized such deductions and the transmittal of those dues to the Union WE WILL NOT refuse to recognize or bargain with the Union, which is the collective-bargaining representative of our employees in the following appropriate unit 297 NLRB No 135 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All production, maintenance, shipping and office employees of the plant, excluding watchmen, guards, executive, administrative and professional employees, confidential secre- taries, all other employees handling confiden tial information and supervisory employees as defined in the Act WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL deduct dues from the pay of employ- ees who have executed dues-checkoff authonzation forms for the Union and transmit these funds to the Union WE WILL reimburse the Union for the dues we failed to transmit since about August 1, 1987 WE WILL, on request, bargain with the Union as the exclusive representative of our employees in the appropriate unit described above REMGRIT CORPORATION Michael A Marcionese Esq , for the General Counsel William H Smith Esq for the Respondent Charles Vizvarry President, for Industrial Machine and Office Workers Union DECISION ployees with reprisals if they engaged in union activities and that it threatened to reduce employees Christmas bonuses because they filed charges with the Board This complaint also alleges that smce about April 23, 1986, IMOWU has been the exclusive collective bargaining representative of Respondent s production and mamte nance employees and that such recognition is embodied in a collective bargaining agreement effective June 30, 1986 through July 1 1989 The complaint further alleges that on about July 1 Respondent bypassed the Union and engaged in direct dealing with the employees con cernmg wages and failed to continue in full force and effect the above descnbed contract by failing to deduct and remit union dues to IMOWU, by increasing the wages of certain of its maintenance employees and by failing to post job openings for existing positions m the unit Finally, the complaint alleges that on about July 1 Respondent withdrew its recognition of IMOWU, all in violation of Section 8(a)(1) and (5) of the Act On the entire record, mcludmg my observation of the witness herein and the bnefs received I make the fol lowing FINDINGS OF FACT I JURISDICTION There being no dispute, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act II LABOR ORGANIZATION STATUS STATEMENT OF THE CASE JOEL P BIBLOWITZ Administrative Law Judge This case was heard by me on October 17 and 18, 1988 in Hartford Connecticut The complaint in Case 39-CA- 3630 issued on November 6 1987, 1 and was based on an unfair labor practice charge filed on September 23 by Retail Wholesale and Department Store Union United Retail and Industrial Union Local 282 AFL-CIO (Local 282) The complaint in Case 39-CA-3646 Issued on January 21 1988, and was based on an unfair labor practice charge and an amended charge filed October 14 and November 23 by Industrial Machine and Office Workers Union (IMOWU) On January 21 1988 an order consolidating cases issued consolidating the above two cases Case 39-CA-3630 alleges that on about August 12 Respondent interrogated its employees regard mg their protected concerted activities, on about August 12 transferred employees James Schlenk and Joseph Aranjo to different shifts and harassed, suspended, and subsequently discharged Schlenk on September 20 be cause he and others acted in a concerted manner in com plammg to governmental agenices regarding the wages hours, and working conditions of Respondent s employ ees in violation of Section 8(a)(1) of the Act Case 39- CA-3646 alleges that on about June 30, Respondent cre ated an impression among its employees that their union activities were under surveillance and threatened em 'Unless Indicated otherwise all dates referred to herein relate to 1987 Respodent admits that at the time it entered into a col lective bargaining agreement with IMOWU effective July 1 1986, it was a labor organization within the mean mg of the Act but because of its defense that, subse quently IMOWU became defunct, it denies that it is presently a labor organization within the meaning of Sec tion 2(5) of the Act Respondent also denies that Local 282 is a labor organization within the meaning of the Act no evidence was adduced at the hearing in this regard On the basis of the evidence adduced at the hear mg I find that IMOWU was, and continues to be, a labor organization within the meaning of Section 2(5) of the Act III BACKGROUND The facility presently operated by Respondent was previously owned and operated for many years by the Remington Arms Company (Remington) Respondent s operation is extremely limited (in size and scope) com pared to that of Remington Respondent commenced op erations at the site on July 1, 1986 Respondent conducts manufacturing principally in two areas a rim fire depart ment where It manufactures and stores empty shells and lead slugs under orders of Remington and an abrasives department where it manufactures cutting tools such as jigsaw blades Since about 1942 IMOWU has represent ed certain of Remington s employees (and those of no REMGRIT CORP 805 other employer) 2 After Respondent purchased certain of Remington's operations, the employees in the purchased areas had the choice of remaining with Remington or being employed by Respondent In about March, Re- spondent recognized IMOWU as the exclusive collec- tive-bargaining representative of the production, mainte- nance, shipping, and office employees employed at its fa- cility in Bridgeport, the majority of whom had previous- ly been employed at the same facility by Remington On April 23, 1986, Respondent and IMOWU executed a col- lective-bargaining agreement covering these employees, to be effective June 30, 1986, when the sale of the facili- ty was completed Because the allegation of each of the complaints herein, are basically distinct and are not dependent upon the other for enlightenment, they will_be discussed spara- tely First discussed will be the allegations of Case 39- CA-3646 I IV FACTS AND ANALYSIS On June 28, IMOWU (an independent union) conduct- ed an affiliation vote among its members on the question of affiliating with Local 282 By letter dated July 2, counsel for Local 282 wrote to Respondent This letter will serve as formal noification. to RemGnt that the membership of IMOWU has over- whelmingly voted to affiliate with United Retail and Industrial Union, Local 282, Retail Wholesale and Department Store Union, AFL-CIO The affili- ation with Local 282 took-effect on July 1, 1987 As a result the payment for dues being checked off should be made payable to Local . 282 The Union realizes that it will require some time to adjust the data processing and in the interim checks still pay- able to IMOWU are perfectly satisfactory . No change in the makeup of stewards will take place as a result of this affiliation Charles Vizvary and Angela Fucm are now members of Local 282 who will also join the other noted individuals in union- management meetings.. r Local 282's headquarters are at 60 North Main Street, Wallingford, Connecticut 06452, phone 265- 6707, the IMOWU's ,Bridgeport office is now closed If you have any questions, please feel free to call me By letter dated July 17, Raymond Anderson, vice president of Respondent, wrote to counsel for Local 282 Receipt is acknowledged of your letter dated July 2, 1987 It was delayed in receipt, pdssibly be- cause of the erroneous zip, which which should be 06608 As you know, in June of last year the RemGnt Corporation purchased the plant 'site at Barnum Avenue and then became a separate employing 2 The IMOWU bylaws reitnct . membership to Remington employees On December 7, 1986, the union membership rejected an attempt to amend these bylaws to cover the Bridgeport area (which would include Respondent s employees) entity from the seller Upon purchase, the RemGrit employees became, in fact, a separate collective bar- gaining unit from that which had existed with the seller Also, while the sale negotiations were in progress, RemGnt and the IMOWU negotiated a collective bargaining contract which applied exclu- sively to the RemGrit employees Your letter, therefore, prompts a primary ques- tion Was the membership vote referred to in your letter confined to IMOWU members employed at RemGnt, or did that membership vote include per- sons employed by some other employer' Your letter suggest other questions, but the one above seems paramount for answer Counsel for Local 282 responded by letter dated July Thank you for your letter of July 17 To answer your question You well know that as a result of the divestiture by Remington to Rem- Grit, the IMOWU was party to two contracts The union' still consists of both units Other than on issues germane to just one unit,. all members vote to- gether Thus, all members were given an opportuni- ty to vote and did, as one unit It was clear that the affilialion- was supported across-the-board since there was a large turnout for the vote and the vote in favor of affiliation was virtually unanimous Anderson's reply is dated August 5 . r We have received your letter of July 21, 1987 It was our information that a single vote was conducted involving employees of the separate bar- gaining units indistinguishably, and we thank you for confirming it A number of matters continue to bother us 1 The disparity in size between the bargaining unit at the Remington Arms plant and the unit at RemGnt, thus assuring an "overwhelming vote to affiliate" by the Remington Arms employees, even if all RemGnt employees were opposed . 2 Our belief that the majority of the very few RemGnt employees who attended the meeting did so oppose 3 Whether employees of one bargaining unit can determine and control the representational rights of the employees of another bargaining unit, 4 Our information and belief that the By-Laws of the IMOWU make no provision for such affili- ation questions 5 Our information and belief that the By-Laws of the IMOWU continue to restrict membership to employees of the gemmgton Arms Co, Inc , Your prior letter indicates that Mr Phil Peeler, President of Local 282, and on behalf of Local 282, expects to undertake as collective bargaining repre- sentative of RemGnt's employees, and that the offi- cers of the IMOWU no longer have any function as such officers 21 of e 806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Your prior letter states that dues collected pursu- ant to RemGrit's current contract with the IMOWU are to be paid over to Local 282, that the IMOWU office is now closed, and that the applica- ble office is now that of Local 282 in Wallingford. Under all of these circumstances we feel it is ap- propriate, and necessary, that Local 282, United Retail, Wholesale and Department Store Union, AFL-CIO, make appropriate petition to the NLRB for a determination of the representational rights of Local 282 as to RemGrit's employees. Until appropriate NLRB determination is made, RemGrit must decline to recognize Local 282 as collective bargaining representative of the employ- ees of RemGrit. Pursuant to RemGrit's continuing contract with the IMOWU, RemGrit shall continue to deduct dues from those employees who authorized dues to be deducted and paid to the IMOWU, however, such collected dues will be deposited in an interest bearing escrow account for such subsequent distri- bution as lawful authority determines appropriate. On or about August 10, Respondent distributed the following notice to its employees: TO ALL EMPLOYEES We were recently advised by the IMOWU attor- ney that the IMOWU membership has voted to af- filiate with the United Retail and Industrial Union, Local 282, Retail, Wholesale and Department Store Union The IMOWU attorney also advised: 1. That the affiliation was effective on July 1, 1987. 2. That deducted dues should be sent to Local 282 3 That the IMOWU office is now closed. 4. That the Local 282 office is in Wallingford, Ct. We subsequently received information that Rem- Grit employees were not given the chance to vote separately on the affiliation question, even though our RemGrit employees comprise a separate collec- tive bargaining unit, and are far outnumbered by the Remington Arms employees. RemGnt has accordingly: 1. Advised the Union to petition the NLRB for an appropriate determination of the rights of Local 282, and YOUR RIGHTS. 2. Advised that RemGrit will not recognize Local 282 unless and until the NLRB makes such a determination 3. Advised that pursuant to our continuing con- tract with the IMOWU, RemGnt will continue to deduct dues as the individual employee has author- ized, but instead of paying those dues to Local 282, RemGrit will deposit the dues money into an inter- est bearing escrow account pending determination by lawful proper authority. As RemGrit sees it, the dues, with accumulated interest, will ultimately be paid, either. 1. To the IMOWU, if still existant, or 2 To Local 282 if the affiliation vote was proper and effectively binds RemGnt's employees, or 3. Returned to the individual contributing em- ployee. We will keep everyone advised as this matter de- velops. A copy of our letter to the IMOWU attorney is in Frank Bisogno's office and you are free to see it in its entirety at reasonable times. On August 28, Local 282 filed an unfair labor practice charge alleging that Respondent's refusal to recognize or bargain with it violated Section 8(a)(1)and (5) of the Act. This charge was dismissed by the officer in charge of the Subregional Office on October 1 on the ground that the result of the attempted affiliation was that IMOWU would cease to exist as a distinct and separate entity and therefore the purported affiliation was a complete change in the employees' bargaining representative. By letter dated October 8, Respondent informed its employees of the dismissal of the unfair labor practice charge and fur- ther stated that in view of this decision and prior notices to employees, IMOWU dues, being held in escrow, with interest, would be returned to its employees By letter dated October 15, Respondent informed its employees that, because the Subregional Office found that IMOWU no longer exists and that Respondent is not obligated to recognize Local 282, dues will no longer be deducted from their pay. On October 11, IMOWU held another membership meeting at which the members voted to affiliate with RWDSU and seek a separate local charter (presumably as Local 283) By letter dated October 13, Counsel for Local 282 informed Respondent that at the meeting, 54 of the 116 IMOWU members were present and with "near unanimity" voted to keep its existing officers in office and to seek a separate charter from RWDSU. That the vote on affiliation was conducted in secret by plant, and the employees of Respondent voted 12 to nothing in favor of affiliation, and that they expect Respondent to recognize the result. Respondent did not live up to the Union's expectations and, on December 11, Local 283 filed an unfair labor practice charge, alleging that Re- spondent violated Section 8(a)(1) and (5) of the Act by refusing to recognize and bargain with it. By letter dated January 20, 1988, the Subregional Office dismissed the charge on the ground that the organizational changes in the attempted affiliation were substantial enough to create a different entity, and therefore a question con- cerning representation arose; a Board-conducted election is mandated in such a situation. The appeal of this dismis- sal was denied by the General Counsel by letter dated September 29, 1988. Employees Joseph Pascucci and Richard Gabriel testi- fied to a meeting held at the facility for certain of Re- spondent's maintenance employees; about three other employees attended. Anderson spoke on behalf of Re- spondent, Frank Bisogno, Respondent's human resources manager (and formerly the president of IMOWU), was present as well. This meeting occurred a day or two after Respondent's October 8 letter to the employees, supra, which stated: "We also expressed doubt as to the e REMGRIT CORP 807 very existence of the IMOWU after the affiliation" Pas- cucci testified that Anderson read from the October 8 letter and then said: "Now, there's no more union here at Remgrit." He then spoke of the Schlenk discharge, infra. When he completed his talk, Pascucci asked, if there were no union, who would represent them. Bisogno said that if they got fired or had any grievances, they could go to the Board. Somebody then asked about the existing contract and benefits; Anderson said that the contract would be followed. "nothing would change, when raises came due in July, we would get the raises." Gabriel testi- fied that at this meeting Anderson said that Respondent did not agree with the Local 282 affiliation and the Board ruled in their favor. He also said "that there would no longer be a union at Remgnt and that dues would be returned to us in our next pay" He also said that he would abide by the contract Anderson testified on behalf of Respondent about the October 9 meetings, one of which was with the mainte- nance department, including Pascucci, Gabriel, and others. However, Anderson never testified regarding what he told the employees at these meetings. Rather, Respondent introduced into evidence an outline Ander- son prepared a few days after these meetings as a sum- mary of what took place generally at these meetings. In- cluded were the following "concerns . . . voiced by em- ployees regarding the prospect of a non-union environ- ment": (1) What becomes of the Contract? (2) Who will represent us? (3) Will seniority be honored? (4) Will job posting continue? (5) If you decide to honor the Contract, as you've said, what happens when it runs out? (6) How about raises? Typical answers to the above: (1) Most of it would become part of our operat- ing policy (except for the parts which require Union participation such as grievance, procedure, arbitration, etc.) (2) Your Supervisor, Human Resources Manager, Vice President would handle progression of legiti- mate problems (3) Yes, in exactly the same way as it is now. (4) Yes (5) The only parts that would "run out" are the increase specifics. Increases would be based on busi- ness conditions, local pay considerations, profitabil- ity, etc The incentive basis system would have a better chance to work as intended. (6) As above. At a later point, this outline states "NLRB rules IMOWU no longer exists" and "There is no Union at RemGrit as of now." Pascucci testified that at this meeting Anderson re- ferred to Schlenk's discharge and the unfair labor prac- tice charge that was filed with the Board. He said that Respondent would fight it— "all the money or any cost that it took would come out of our Christmas bonus at the end of the year" Gabriel, who was present at and testified about this meeting did not testify that such a statement was made. Anderson testified that he made no such statement. In its October 8 letter to employees, supra, Anderson informed the employees of the unfair labor practice charge filed regarding Schlenk's discharge (to be discussed infra). The letter states: "We have denied the charge but must nonetheless spend the time and financial resources required to justify our position If Respondent's principal defense regarding this allega- tion is that it did not violate Section 8(a)(5) of the Act because since about July IMOWU has ceased to exist. The Union's office has been closed, "the officers and Ex- ecutive Board of the Union have been substantially dis- banded," the IMOWU has failed to maintain stewards at the plant or to present and process grievances, and has failed to amend its bylaws to permit other than employ- ees of Remington to become members of IMOWU. Prior to Respondent taking over some of Remington's oper- ation in July, Frank Bisogno was the president of IMOWU and Charles Vizvary (who is employed by Remington) was financial secretary and treasurer. Bi- sogno was offered, and accepted, the position of human resource manager for Respondent and, shortly thereafter, Vizvary was elected president of IMOWU By letter dated July 25, 1986, to Respondent, IMOWU listed its five officers and four departmental stewards. Of these five officers, only Vizvary remains, there is presently a replacement secretary and a treasurer, 3 but no vice presi- dent or financial secretary, although the bylaws call for such positions. Three of the four stewards listed in the letter continue to occupy that position Vizvary testified that during the first year of the con- tract's terms, he had a number of meetings with repre- sentatives of Respondent regarding enforcement of the contract. One was to represent an employee who was about to be terminated by Respondent Additionally, in about August 1986, he complained to Bisogno about management performing cleanup work—pulling up and cutting grass and painting—which he felt was bargaining unit work. Bisogno reassured him that it was a one-time- only situation where the work was being performed by salaried employees to cut down expenses, and that it would expedite the opening of the cafeteria. The Union did not file a grievance on the matter. On one occasion, Vizvary requested of Respondent an organizational chart, a seniority list and job descriptions. The Union eventually received all this information except for job descriptions in the Rimfire division. In about mid-Sep- tember, Vizvary was informed by Pascucci that Re- spondent was terminating employee Donald St. John. Vizvary called Anderson and asked him if it was true and he said that it was. Vizvary asked if he could come to the facility to represent St John and Anderson said that he could as long as it was under IMOWU When he got to the facility, he met with St. John, Bisogno, and 3 By letter to Respondent dated August 25, Vizvary notified Anderson that he had appointed Pascucci and James Lynch to these positions Pas- cucci was hired by Respondent on July 5, 1986, and became a member of IMOWU on December 12, 1986 IMOWU bylaws require that a person be a member of the Union in good standing for 1 year prior to becoming eligible to be an officer of the Union 1 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Supervisor Larry Grillo. He then spoke privately with St. John and then, Bisogno and Grillo. When this at- tempt to settle the matter was unsuccessful, he informed Bisogno that he was going to file a grievance on the matter, Bisogno said that was acceptable as long as it was on a IMOWU form. On September 16 and 18, Viz- vary gave Grub twot grievances on IMOWU forms; the first alleged a violation of the contract by the failure of Respondent to notify the Union of its intention to dis- charge St. John. The second alleged that the Respondent did not have reasonable cause to discharge St. John. By letter dated September 18, Respondent returned the first grievance to Vizvary (the second grievance alleging no reasonable cause to discharge is not referred to), giving as reasons the fact that Vizvary is not an employee of Respondent, so he is not an "appropriate representative" and repeating that the Union's attorney had informed them in the July 2 letter that IMOWU had affiliated with Local 282 and that "IMOWU was closed." The next em- ployee whom Respondent fired was James Schlenk, dis- cussed infra In August, Vizvary called Bisogno and told him that he was sending him dues-authorization forms; Bisogno said that as long as they were on IMOWU forms, they would be accepted. Ten dues-checkoff authorization forms of IMOWU, signed by employees on August 14 were delivered to Respondent on about that day. By letter to Vizvary dated September 1, Anderson states, inter aim: Again, we must question your status as President of the IMOWU, and, frankly, question the current ex- istence of the IMOWU. We have an obligation to the employees of RemGrit that their money, which they have authorized to be deducted as dues, goes to their legal collective bargaining representative, and we do not know who that representative is, if any. Presumably, Respondent never remitted the dues of these 10 employees to IMOWU. Vizvary initially testi- fied that he believes Respondent did remit the dues to IMOWU, but then testified that in about June or July, Respondent stopped remitting dues deducted to IMOWU. The complaint also alleges that on about July 1, Re- spondent bypassed the Union and dealt directly with its unit employees concerning wages and failed to continue in full force and effect the contractual terms of its agree- ment with IMOWU by increasing the wages of certain maintenance employees and failing to post job openings for existing unit positions. The contract states that "new jobs or other job vacancies . . will be posted on desig- nated bulletin boards in each department for a period of two working days" This allegation is supported by the testimony of employee James Lynch, which is somewhat confusing. Q. Now, during that time, after July of 1987, did the company post job openings in your area? A. Well, with my department, job posting were [sic] not up, not until, I would say, no more than around in May Q. May of what year? A Well, I know of '87 there was no jobs posted on the board. I didn't see any. Q. Do you know— A Most of the jobs that I know that were posted were always over in abrasive area. A lot of times there were jobs or such things to be posted were never posted up on our boards. Q But they were posted on other boards? A. (No verbal response.) Q. Was that a yes? A. Pardon me? He eventually answered in the affirmative In addition, employee Joseph Aranjo testified that after Schlenk was terminated (mid-September) Respondent did not post his position until about December. Anderson testified that Schlenk's position was posted in about mid-November and was filled by an employee from the abrasives depart- ment who assumed the position in December. Anderson testified that Respondent has never failed to post a job opening at the facility. Lynch was also the General Counsel's sole witness re- garding the alleged unilateral change regarding the in- crease in the wages of certain maintenance employees; although he never specifically testified when this oc- curred, the complaint alleges that it was on about July 1, and that appears to conform to the evidence. Lynch tes- tified that at a certain point, four of their machines were not working at a time when no repair people were em- ployed. When he informed Grillo, his supervisor, of this, Grillo said: "Fix them." Lynch said that they do not get paid to repair machines. Grillo told him that he and the other employees would receive 50 cents an hour addi- tional pay for repairing the machines. The following day Grillo called a meeting of the four employees in the de- partment (including Lynch) and told them that they would alternate for 2-week periods repairing machines and the employee whose period it was would receive the additional 50 cents an hour regardless of whether ma- chines were down. This procedure continued until about August Grillo testified that this situation began in about early 1987 and continued for about 3 months. It began because he had problems getting minor repair work per- formed. Because he considered his toolsetters to be "ca- pable and willing and cooperative people" who could perform this work without the delay Inherent in obtain- ing outside repair people, he told Lynch ("who was my union representative for that area"—he was a steward) about the problem and asked if there was anything wrong with the toolsetters doing the repair work Lynch told him that it would be acceptable if they were paid an additional 50 cents an hour for doing it Grillo agreed and they decided to discuss it with the other toolsetters. At this meeting, Grillo told them of the problem, that the temporary solution was to have them perform the repair work, and for that they would receive an addition- al 50 cents an hour. The complaint also alleges that on about June 30, Re- spondent, by Bisogno, created an impression among its employees that their union activities were under surveil- lance and threatened employees with unspecified repris- e REMGRIT CORP 809 als if they engaged in union activities This allegation also involves Lynch, who testified that a few days after the IMOWU membership voted to affiliate with Local 282 (June 28) he was called into the office of Mark Hun- yadi, Respondent's manager of business services; Grillo and Blsogno were also present. Bisogno told him that he had been receiving complaints from employees that they were being bothered by the Union and he wanted to know what was going on. Lynch said that the Union had just changed from an independent union to the AFL- CIO Bisogno said that Respondent did not recognize the Union because they were following what the contract said. Bisogno then said that he had not seen him lately in the cafeteria, that he was using the inspection office. Lynch denied using the inspection office and Bisogno said that he was engaged in union activities on Respond- ent's time. Lynch denied this, saying that he engaged in union activities only during lunch and coffeebreaks. Bi- sogno showed him the contract and said: "You're not supposed to do union activities during company time and on company premises." Lynch said that he knew that and Bisogno said that he just wanted to be sure that Lynch did not encounter any problems. Bisogno did not testify to any such incident with Lynch; he testified to a warning he gave to Pascucci for being abusive. On that occasion, he told Pascucci to watch himself, to calm down. The collective-bargaining agreement sets forth the wage rate for toolsetters; it does not require any case ci- tation to state that any change in this rate must be nego- tiated by, and agreed to, by the Respondent and the Union prior to implementation. This requirement is not satisfied by the fact that Grillo discussed the 50-cent in- crease with Lynch, who was the steward, and the affect- ed employees San Antonio Portland Cement Co., 277 NLRB 309 (1985); TLI, Inc., 271 NLRB 798 (1984). See Taft Broadcasting Co., 264 NLRB 185 (1982). Nor is Gnllo's action excused by the fact that Vizvary is not physically at the facility. Changes in contractual terms must first be negotiated with the union. This was not done here so it violates Section 8(a)(1) and (5) of the Act. I also find that Respondent violated Section 8(a)(1) and (5) of the Act by discontinuing the deduction of dues and remittance to IMOWU. The contract between the parties provides for the form to be executed by Re- spondent's employees in order for the IMOWU dues to be deducted from their pay and that these dues are to be submitted to the IMOWU within 10 days of the end of that month. Beginning in August, Respondent ceased transmitting these deducted dues to IMOWU, and in Oc- tober, Respondent returned all the previously deducted but not transmitted dues to the employees, all without previously discussing it with IMOWU. In its answer Re- spondent alleges that IMOWU is "defunct" and a "sham"; as this allegation is unsupported by the evidence (as discussed more fully, supra), I find that the discon- tinuance of the dues deduction violates Section 8(a)(1) and (5) of the Act. The General Counsel next alleges that Bisogno's state- ments to Lynch on about June 30 created an impression of surveillance of his union activities and constituted a threat of reprisals if he engaged in union activities. I dis- agree with the statement in the General Counsel's brief that "the clear import of tbese statements was that Re- spondent was watching Lynch, and in particular, his union activities during breaks and lunches." Rather, I find that another interpretation of these statements (and one that is just as reasonable) is that Bisogno's remarks to Lynch were a warning or reminder to follow the terms of the contract in conducting his union activities, something he was entitled to do. I would therefore rec- ommend that this allegation be dismissed. The allegation that on about October 9 Respondent, by Anderson, threatened to reduce employees' Christmas bonuses because they filed charges with the Board, in violation of Section 8(a)(1) of the Act, is a difficult one. On the one hand, I found persuasive the argument in General Counsel's brief that Pascucci's testimony that Anderson said that whatever legal expenses Respondent incurred in contesting the unfair labor practice charge would come out of their Christmas bonus was consistent with Respondent's letter to employees the prior day that said that Respondent would "spend the time and finan- cial resources" to justify its position on the charge. On the other hand, I found Anderson to be a witness who answered questions in a direct and credible manner. Be- cause of this, and the fact that Gabriel's testimony did not support that of Pascucci, I would dismiss this allega- tion. As regards the allegation that Respondent violated Section 8(a)(5) of the Act by failing to post job openings for existing unit positions, I discount Lynch's testimony on the subject as too confusing to be helpful Aranjo tes- tified that Schlenk's position was posted in about Decem- ber; Anderson testified that it was posted in about mid- November and filled by an employee from the abrasive department in December. Although (as stated supra) I found Anderson to be a credible witness, I fail to see any violation even if I were to credit Aranjo's testimony. I would therefore dismiss this allegation. The final allegation is that on about July 1, Respond- ent withdrew its recognition of the IMOWU Both Pas- cucci and Gabriel testified that at the October meeting Anderson said that there was no longer a union repre- senting Respondent's employees; Anderson's notes of the meetings he held with the employees that day confirms that. This conforms to Anderson's earlier communica- tions with counsel for the Unions and the employees. The Respondent's defense to this withdrawal of recogni- tion is: "The IMOWU very clearly no longer exists. It is nothing more than a name being used in subterfuge by Local 282 and/or Local 283 to accomplish in fact what Subregion 39 and General Counsel said they could not do under the law." This allegation is supported neither in fact or law During the period in question, IMOWU had officers, as well as stewards, present at the facility IMOWU represented (or attempted to do so) two em- ployees (St. John and Schlenk) in protesting their termi- nations during this period and transmitted 10 IMOWU dues-checkoff authorization forms to Respondent. These are not actions of a nonexisting union Respondent's case appears to depend upon the statement in the July 2 letter that the IMOWU office was then closed That statement must be read in context with the remainder of that letter 810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which informed Anderson of the IMOWU vote to affili ate with Local 282 and requests that dues payments be made to Local 282 and it gives the Local 282 address At that point, the letter stated that the IMOWU office was closed In Steelworkers (L&S Products Inc ), 253 NLRB 961 at 967 (1980) the administrative law judge stated In the case of a void affiliation election, it is even more obvious that the void election and any denva tive actions did not dissolve the preexisting labor organization or its collective bargaining contract with the employer This language is right on point in this matter The June 28 vote of affiliation admittedly was ineffective that alone, however did not give Respondent the right to cease recognizing the IMOWU as the representative of its employees Respondent is also incorrect on its application of the law herein A bargaining representative is considered defunct and its contract is not a bar only if it is unable or unwilling to represent the employees Yates Industries 264 NLRB 1237 1249 (1982) See also Pioneer Inn Assoc: ates, 228 NLRB 1263 (1977) Respondent relies on the fact that the IMOWU bylaws limit membership to Rem mgton employees and that under the IMOWU By laws Pascucci was not eligible to be an officer of the IMOWU at the time he was appointed to that position However these are internal union procedures that Respondent cannot seize upon to defend his actions herem North Country Motors 146 NLRB 671 (1964) M & M Oldsmo bile Inc 156 NLRB 903 (1966) I therefore fmd that by ceasing to recognize IMOWU as the representative of its employees in October the Respondent violated Section 8(a)(5) of the Act The other complaint (39-CA-3630) alleges (in addition to an interrogation by Supervisor Anthony Sockolosky on about August 12) that Respondent transferred Schlenk and Aranjo from the day shift to the evening and night shifts, and subsequently harassed Schlenk (from about August 1 until September 18) suspended Schlenk for 5 days (on about September 20), and dis charged Schlenk (also on September 20) all because Schlenk and Aranjo acting in concert complained to Respondent, the Department of Labor and OSHA re gardmg their wages hours and working conditions all in violation of Section 8(a)(1) of the Act This allegation involves the powerhouse employees (also called boiler tenders or engineers)—Schlenk, Aranjo, and Bill Haines (who at the time was actually an independent contractor) The powerhouse provides steam compressed air and during cold weather, heat to the buildings at Respondent s facility Schlenk had been employed in the powerhouse as a boiler tender for Rem ington and accepted the same position with Respondent when it commenced operations at the facility on July 1, 1986 From that time until May the powerhouse ran on a three shift 24 hour a day basis Haines began at about 5 a m, while Schlenk and Aranjo alternated on the second and third shift Beginning in May all three worked the day shift with Haines arnvmg about 5 a m to turn on the boiler In about early August while Schlenk Aranjo and Pascucci were performing maintenance work in the pow erhouse they noticed that some insulation around pipes4 was torn and asbestos was falling from the insulation They discussed the situation and were concerned about working in the area with asbestos in the air While they were working in the area, their supervisor, Sockolosky, came into the powerhouse and Schlenk told him of the problem and their fears about it Sockolosky told them not to worry about it and to perform the work He also told them to wear respirators over their mouth and nose and that he would see what he could do about it Schlenk testified that Sockolosky said that he would con tact James Ackerman Respondent s supervisor of safety, security and environmental health Shortly thereafter he observed that Ackerman had installed an air monitor system in the powerhouse Schlenk testified that he con sidered this totally inadequate because it was about 8 feet above the exposed asbestos rather than below it which would have provided correct readings of the amount of asbestos he s got the system above everything I mean, it s above the highest piece of asbestos or pipe covering within the building there s nothing running on top of it Schlenk then discussed the situation with Pascucci and Aranjo and they decided that Respondent s response was inadequate Schlenk told Pascucci and Aranjo that he was going to call OSHA (this was about the second week in August) and while they were in the power house Schlenk called OSHA from the office in the pow erhouse The person whom he spoke to at OSHA told him that because of a backlog it would take them about 3 months to investigate the situation but that he would mail him a book of their regulations, which he did Schlenk later showed this book to Aranjo and Pascucci Gabriel testified at about this time he was concerned about removing pipmg that was covered by exposed as bestos he discussed it with Schlenk who showed him a folder about asbestos that he had received although he is not sure from where Schlenk received it ( It might have been the City of Bridgeport I'm not sure ) Gabriel in formed Sockolosky of his fears and Sockolosky told him that Respondent would supply him with any safety equipment that was needed Sockolosky testified that in about August Schlenk showed him a situation where a pipe had rusted causing a leak with resulting exposure of asbestos Sockolosky told him that he would notify Respondent s Safety De partment to investigate the matter and attempt to correct the problem if there was one He also told Schlenk to wear his respirator while performing the work Socko losky then told Ackerman of Schlenk s complaint about asbestos Several weeks later Schlenk told him I guess you heard that I called OSHA I told them that you did what you had to do about it Ackerman testified that in about the latter part of August, Sockolosky told him that Schlenk had corn 4 Aranjo testified that the problem was the asbestos insulation covering the pipes Schlenk and Pascucci testified that the problem was the asbes tos covering on the hot water tanks REMGRIT CORP 811 plamed to him about the asbestos level in the power- house Ackerman then placed a monitor on what would be the third level of the powerhouse—about 30 feet from the floor He chose this spot because this is where Schlenk would have been working to repair the tank When he retneved that monitor, he saw that it had been tampered with in that somebody had crumpled insulation over the cassette Several days later, he repeated the test at four locations, two up a few levels and the other two at ground level These cassettes were sent to an inde- pendent laboratory which, by letter dated September 24 (about a week after he sent the cassettes for analysis), in- formed Respondent of the result of its analysis Each one was below OSHA standards for permissible levels of as- bestos 5 Anderson testified that on September 18, Henry Gross from the Connecticut State Department of Health Serv- ices, came to the facility and said that he had received a complaint from Phil Peeler, president of Local 282, re- garding unsafe working conditions in the powerhouse due to asbestos Anderson arranged for Gross to be taken to the powerhouse where he did some testing Ap- proximately 2 weeks later, Respondent received the re- sults of this test which stated that no asbestos was found As stated, supra, from about July 1, 1986, to May, Schlenk, Aranjo, and Haines worked three shifts, begin- ning in May, Respondent switched to a single-shift oper- ation in the powerhouse with Haynes reporting at about 5 a m to start up the boilers and Schlenk and Aranjo re- porting shortly thereafter Aranjo testified that about 2 weeks after Schlenk called OSHA, Sockolosky came into the powerhouse and told Schlenk that it was a mistake to call OSHA and he should have checked with supervision first He then told Schlenk and Aranjo that he was going to put them on the night shift, he would be 3 to 11 p m and Schlenk would be 11 p m to 7 a m He testified "Well, I don't know if he was joking or what, but he made a statement so far as saying that he was putting us on the night shift to get us- out of the way for a while until things cool off" Schlenk testified that about a week after he re- ceived the OSHA material, Sockolosky called the pow- erhouse and said that he wanted to speak to Schlenk and Sockolosky He arrived and asked Schlenk if he had called OSHA and he said that he had, Schlenk told him "I'm sitting here in a dust bowl and nobody's really doing anything about it" That was why he called OSHA Aranjo told Sockolosky that he agreed with Schlenk Sockolosky told him that he went too far and had no right to call OSHA, and "he told Joe and myself we were going to go on nights That's what they did that following Monday" (He places this in about mid- August ) When Schlenk asked him for a reason, Socko- losky said, "that he was putting us on nights because we were making too much trouble" Sockolosky testified in a substantially different manner, he testified that Schlenk first mentioned OSHA to him, not the other way around In addition, he never said that it was a mistake for him to call OSHA, or that he had no 5 Anderson testified that the OSHA standard for asbestos is below 0 5, the four test results were 006, 0003, 0 002 and 0 002 right to do so, nor did he say that he was transferring them to the night shift because he was making too much trouble He testified that they were put on the evening and night shift at that time because production increases necessitated more steam and compressed air from the powerhouse Anderson testified that he made the deci- sion to return to three shifts in 'the powerhouse in August after consulting with Gnllo, the supervisor in the rim fire department and the person who prepares the work schedules based upon the periodic orders received from Remington This is Respondent's defense on the transfer allegation, that the large increase of work in the rim fire department necessitated additional steam from the powerhouse, which resulted in a return to three-shift operation As stated, supra, the powerhouse produces steam for the rim fire department production, as well as seasonally to heat the buildings at the facility To sup- port its defense, Respondent introduced a number of documents into evidence One was the monthly schedule for the rim fire department for the entire year with the exception of February which Respondent could not locate These schedules show the number of shells Rem- ington notified Respondent that it wanted in each of these months together with the daily production figures provided by Respondent They are 6 Monthly Schedule Daily Schedule January 42,720,000 2,670,000 March 56,070,000 2,670,000 Apnl 61,600,000 2,800,000 May 64,000,000 3,000,000 June 67,200,000 3,000,000 July 70,400,000 3,000,000 August7 44,000,000 3,800,000 September 84,000,000 3,800,000 October 84,000,000 3,800,000 November 80,000,000 3,800,000 December 80,000,000 3,800,000 Anderson testified that in his experience when the daily production reaches about three million, the powerhouse must provide steam to support this production on a mul- tishift basis Also proferred by Respondent and received in evidence was a labor summary for the production em- ployees in the rim fire department for the months of July through September The total number of hours worked, per month, increased from 1392 in July to 1790 in Sep- tember, the month of August is not helpful because of the 2-week shutdown These timecards show that from the conclusion of the shutdown through September the rim fire production employees worked no earlier than 5 a m and no later than 5 30 p in Sockolosky testified that he prepares the weekly work schedule for the power- house based upon production requirements provided to him by Anderson and Grillo Additionally, he testified 6 Discrepancies between monthly and daily figures are explained by the fact that Respondent establishes a number of scheduled workdays for the month 7 The facility was shut down for the first 2 weeks of August 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that in a heating season, it would be a three shift rota lion Respondent operated three shifts in the power house until the week ending May 3 beginning the fol lowing week all three employees worked the day shift Three shifts were resumed the week ending August 30 Between Schlenk s termination and Johnson s employ ment as his replacement, the powerhouse was operated with Haines and Aranjo each working about 10 hours with the powerhouse unattended for the period of about midnight to 3 a m at which time Haines arrived Grillo testified that pnor to the shutdown during the first 2 weeks of August he had a conversation with the Remington representative who did the planning and scheduling for the rim fire product He told Grillo to prepare for higher schedules for the rest of the year He informed Anderson of this conversation Schlenk testified that when the three shifts were re sumed in late August, he and Aranjo agreed that Aranjo would work 3 to 11 p m and he would work from 11 pm to 7 a m (Haines worked the day shift) Between that time and his termination he worked that shift with little to do ( listen to the air compressors running ) except that he started up the boilers early in the morning so they would be generating enough steam by the time that production began in the rim fire department (it takes about 2 to 3 hours for a head of steam to be built up) Schlenk testified these boilers ran only during the pro duction period at this time although the boilers would run during the heating season 24 hours a day from ap proximately October until April Anderson was asked why Respondent maintained three employees on the day shift in the powerhouse from May through August with so little to do He testified basically to two reasons engi neers of the type Respondent needs (the boilers at the fa Wit), are quite old) are difficult to locate so once you have them you attempt to keep them and they attempt ed to keep them busy with routine maintenance work It is next alleged that Respondent suspended and dis charged Schlenk on about September 20 because of his protected concerted activities referred to supra in viola tion of Section 8(a)(1) of the Act Respondent did termi nate him but alleges that it was not m retaliation for his OSHA complaints but rather was due to Schlenk s har assment of its secunty guard Bruce Vanak To under stand this defense it is necessary to further describe the powerhouse and more particularly the annunciator board which is located there The powerhouse is located in an isolated area at the facility with often only one or no employees present In addition, at nighttime there are few, if any other employees present at the facility except for the guard in the guardhouse This situation necessi tates some type of communication system between the powerhouse and the guardhouse Aranjo testified that the annunciator board in the powerhouse is an alarm that rings every 45 minutes (only when an employee is phys wally in the powerhouse) The engineer then resets the board failure to do so within a few minutes results in a telephone call from the guard m the guardhouse to see if everything is all right He testified that the guard calls only if the board is not reset Schlenk testified that the annunciator board (which he called the dead man s alarm) rings every 45 to 60 minutes in the powerhouse the engineer then has 2 minutes to reset the alarm Only if he does not do so within that time does the guard in the guardhouse call the powerhouse to see if there is any problem Ackerman testified that for several years the procedure has been for the guard in the guardhouse to call the powerhouse every hour (but only after 6 p m) even if the engineer had reset the board after the alarm went off Stanley Wuchek a security officer for Re spondent who had previously occupied that position with Remington for 15 years testified about this proce dure he initially testified The employee at the powerhouse has to reset the boiler alarms and if he doesn t reset them we have an alarm that rings in the patrol office and then we have to make contact with the employee to make sure that everything is okay On cross examination, counsel for the General Counsel asked only one question on the subject Q So Mr Wuchek the procedure that the guard follows is he would make a telephone contact to the employee in the powerhouse if the alarm isn t reset is that correct? A Right To clear up what I considered somewhat ambiguous answers on an important subject I questioned Wuchek about this procedure and he answered Even if the alarm was reset I would ring the phone back Ander son testified that there are two distinct phases to the se cunty policy involving the powerhouse the first is the alarm that rings m the powerhouse periodically If the engineer fails to reset the board after the alarm goes off, the guard calls him The second phase is an hourly com munications check for everybody working the afternoon or evening shift m remote areas or by themselves An demon testified that this system existed at Remington for the 18 years he was employed there and has been at the facility for the entire period of his employ by Respond ent Sockolosky testified that in addition to the annum ator board the guard is supposed to call the powerhouse on an hourly basis during off hours and he mformed Schlenk and Aranjo of this in 1986 This testimony is important in the determination of these final allegations During this period Schlenk was annoyed because Vanak was calling him regularly which he felt was a form of harassment another result of his OSHA activities Respondent alleges that Vanak was just doing his job and following the usual procedures and that Schlenk s actions toward Vanak constituted harass ment and were grounds for his (planned) suspension, which instead, became a termination when he did not appear to receive his suspension Schlenk testified that prior to returning to the night shift in August he had never been called by a guard after he reset the alarm A few days after returning to the night shift Vanak began calling him every hour even after he reset the alarm When Schlenk questioned him about it he said that he was told to call him every hour Schlenk explained the annunciator system to him REMGRIT CORP 813 and Vanak stopped calling him for the rest of the week The following week Vanak resumed calling him on an hourly basis (even after he reset the alarm), when Schlenk asked him why he was doing it, he said that his boss told him to do it When Schlenk questioned Socko- losky about why Vanak was calling him hourly, he said that it was because he worked alone Schlenk said that they had the annunciator board alarm for that purpose and Sockolosky said that the call was an additional safe- guard Schlenk asked him why they didn't call Aranjo and Haines, but he did not answer Vanak continued to ring the telephone or call the powerhouse hourly while Schlenk was there until his termination The situation came to a head on the night/morning of ' September 15/16 Schlenk was working the 11 p m to 7 a m shift that night and, clearly, by then, Schlenk and Vanak were getting on each other's nerves Schlenk testified that Vanak would ring his phone regularly and, sometimes, hang up before he picked it up When he picked up' the phone, he (Schlenk) would answer "good morning Bozo" or "good morning stupid" After Vanak called and hung up before he answered, Schlenk started switch-' mg the annunciator back and forth which, presumably; caused the alarm to ring on a regular basis in the guard- house At about 2 a m that night Sockolosky and Acker- man came to the guardhouse and asked him if there was any problem Schlenk said that there was not "There's no problem, the problem's your guard" and he told them of Vanak's calls Schlenk then asked Ackerman about the asbestos testing he had done Ackerman said that he would have to redo the test because somebody tampered with it Schlenk said that OSHA requires a company to notify its employees within 15 days of a safety-related test Shortly thereafter, Ackerman and Sockolosky left and Schlenk finished his shift Ackerman testified that on the evening in question (counsel for Respondent places the incident on the evening of September 16/17) he received a telephone call at home from Vanak8 who said that Schlenk was re- peatedly switching the annunciator monitor from power- house to security, which caused a light to go on and an alarm to go off He called Schlenk and told him to stop doing it, but he refused Ackerman then called Socko- losky and arranged to meet him at the facility They first went to the guardhouse and from there went to the pow- erhouse When they walked in, they saw Schlenk sitting in a chair with his feet on a second chair turning the monitor switch on and off, he stopped when he saw them Sockolosky asked him if he was switching it on and off and he said that he was, he asked him why he was doing it and he said that he was being harassed by telephone calls from Vanak and he was doing it to bother him Sockolosky told Schlenk that he would have to stop and he agreed to do so Other things may have been said, as well, but Ackerman could not relate what they were Sockolosky testified that he received a telephone call from Ackerman at about 1 a m that morning and ar- ranged to meet him at the facility When he got to the 8 Vanak, who left Respondent s employ at about this time, did not tes- tify guardhouse, he saw and heard the "bogus" signals that Schlenk was sending When Ackerman arrived, the two went to the powerhouse and observed Schlenk sitting in a chair, with his feet propped up on another chair, his right hand turning the selector switch on and off He asked Schlenk if he was sending the signals to the patrol house and he said that he was Schlenk then asked if he had any vacation days left and Sockolosky told him that since he started his shift he should complete it There does not appear to be significant credibility questions regarding Schlenk's termination The day after the incident referred to, supra, Sockolosky informed An- derson of the incident and recommended that Schlenk be written up for the incident and be given a suspension "for a enod of time" Anderson agreed and it was de- cided that when Schlenk arrived for work that evening, he would be informed of the suspension Sockolosky pre- pared the Corrective Action Report, dated September 17, set forth the events of the prior evening, as well as other complaints about Schlenk, and stated that he would be suspended for 5 days and would be allowed to report for work again on September 24 Sockolosky, Bisogno, and Ackerman stayed at the fa- cility after regular work hours on September 17 to await Schlenk's arrival at the guardhouse at 11 p m At about 9 30 p m, Aranjo told Sockolosky that Schlenk had called him a half hour earlier and said that he would not be coming in that night, that he was taking a vacation day and Arany) would cover his shift Sockolosky in- formed Aranjo that he did, not have the authority to grant vacation days, a supervisor must first be contacted, which Schlenk did not do Sockolosky then arranged for Aranjo to work overtime and for Haines to come in early to cover for Schlenk's hours Then, at about 11 p m, he called Schlenk at his home He asked him why he was not at work that night and he said that he was taking a vacation day Sockolosky told him to come to the facility because he wanted to give him a formal inter- view with disciplinary action Schlenk asked what was in the report and Sockolosky said that he would have to come to the facility to find out, Schlenk said that he would be late, but he would be there Schlenk called back a few minutes later and asked if he would be paid if he came to the facility, Sockolosky told him that he would be paid for the period of time that he was at the interview At this point, there is a conflict between the testimony of Sockolosky and Schlenk Sockolosky testi- fied that Schlenk said he would come in, Schlenk testi- fied that he lives 30 miles from the facility and would have to drive 60 miles round trip at about midnight to come to the facility for a brief interview He told Socko- losky that he was not going to drive to the facility for a 15-minute interview Sockolosky told him that they, would wait there for him, and he told him "he can wait as long as he wants They're going to be there a long time" Sockolosky and Bisogno waited for him until 7 15 a m, but he never appeared Sockolosky considered this gross insubordination When Schlenk next reported for work on about Satur- day night, September 19, he was not allowed into the fa- cility, but was handed a series of documents outlining his 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD suspension (the Corrective Action Report which Socko- losky was prepared to give him the prior evening) as well as a letter from Anderson dated September 18, the letter recites his failure to appear at the facility the prior evening, and ends by stating "We are left with no option but to terminate your employment with the com- pany, effective immediately" He has not been employed there since In Wright Line, 251 , NLRB 1083, 1089 (1980), the Board set forth the Rule to be applied in discrimination cases such as the instant matter First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct There can be no question that the General Counsel has sustained its burden herein, a few weeks prior to the transfer to the night shift, and about a month before Schlenk's discharge, he initiated the asbestos complaints with Aranjo and other employees, and shortly thereafter called OSHA after receiving no response he considered satisfactory This certainly qualifies as protected concert- ed activities and Respondent was aware of these activi- ties prior to the transfer of Aranjo and Schlenk to the evening and night shifts If Schlenk and Aranjo are cred- ited over Sockolosky the final determination here is simple, Respondent did not satisfy its burden under Wright Line and the transfer of Schlenk and Aranjo, as well as the termination of Schlenk (and the alleged inter- rogation) violated the Act This is because Schlenk and Aranjo testified that after informing them of the transfer at the end of August, Sockolosky told them that the transfer was due to Schlenk's OSHA complaint No credibility determination is easy, unfortunately judges do not have any greater power than others in de- termining what testimony is truthful and what is not Presiding over the hearing, and observing the witnesses and the manner in which they answer questions certainly helps in making this determination At the hearing I was impressed by Respondent's witnesses, generally, and es- pecially by Sockolosky, who I found testified in a precise and direct manner and appeared to be testifying truthful- ly That is not to say that I found Schlenk and Aranjo to be incredible witnesses, they were not However, when there is a clear conflict in the testimony, as there is here, regarding the transfer of Schlenk and Aranjo to the evening and night shift (and on other areas, infra), a de- termination must be made on who was more credible, and I find it to be Sockolosky and credit his testimony that he did not tell Schlenk and Aranjo that they were being transferred to the evening and night shift because of Schlenk's OSHA complaint That, together with the testimony of Anderson, Sockolosky, and Grillo, and the supporting exhibits regarding the increased production requirements at that time, convince inc that the three shifts were resumed in August for production, rather than discriminatory reasons I therefore find that Re- spondent has sustained its burden under Wright Line and I would therefore dismiss this allegation, as well as the allegation that on about August 12, Sockolosky unlawful- ly interrogated employees regarding their protected con- certed activities Remaining for consideration is the allegation that sub- sequently Schlenk was harassed, suspended, and dis- charged in retaliation for his protected concerted activi- ties, in violation of Section 8(a)(1) of the Act As stated, supra, I found Anderson and Sockolosky credible wit- nesses, although not totally free from doubt, I would credit their testimony, as well as that of Ackerman and Wuchek, who also testified in a direct and credible manner, that the guards are instructed to call the power- house (and other isolated areas) on the late shifts on an hourly basis, even if the engineer resets the alarm There- fore, Vanak was acting properly in calling Schlenk on an hourly basis, while Schlenk was not in harassing Vanak by repeatedly setting the switch back and forth Re- spondent has therefore sustained its burden under Wright Line that Schlenk was neither harassed nor suspended due to his protected activities As Schlenk did not report for work on the evening of September 17/18 to be given his suspension even though he told Sockolosky he would be there (Sockolosky's testimony, which I credit), I like- wise find that the discharge, in lieu of the suspension, did not violate the Act I would therefore recommend that this final 8(a)(1) allegation be dismissed as well CONCLUSIONS OF LAW 1 Respondent RemGnt Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Industrial Machine and Office Workers Union is a labor organization within the meaning of Section 2(5) of the Act 3 The following employees of Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act All production, maintenance, shipping and office employees of the plant, excluding watchmen, guards, executive, administrative and professional employees, confidential secretaries, all other em- ployees handling confidential information and su- pervisory employees as defined in the Act 4 Since on about July 1, 1986, and continuing to date, IMOWU has represented the employees of Respondent in the above-described unit 5 Respondent violated Section 8(a)(1) and (5) of the Act by engaging in the following conduct (a) Granting wage increases to its employees without previously bargaining with IMOWU about the subject (b) Discontinuing the deduction of dues from the pay of its employees who authorized the deductions, and dis- continuing the transmittal of these dues to IMOWU, without previously bargaining with IMOWU about the subject (c) Withdrawing its recognition of IMOWU as the col- lective-bargaining representative of its employees in the unit described above, on about October 10, 1987 REMGRIT CORP 815 6 The Respondent did not further violate the Act as alleged in the consolidated complaint THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, it will be rec- ommended that it cease and desist therefrom and take certain affirmative 'action designed to effectuate the poli- cies of the Act As regards the unilateral granting of the wage increase, that was effective for certain penods Ob- viously, the employees who received this additional com- pensation will not be ordered to return it, all that is needed to remedy this violation is the usual cease-and- desist order As regards Respondent's unlawful unilateral discontinuance of the deduction and transmittal of IMOWU dues, Respondent will be ordered to begin de- ducting dues from the salary of its employees who have executed dues-checkoff authorization forms for IMOWU and to transmit this amount to IMOWU, pursuant to the terms of its collective-bargaining agreement Additional- ly, because Respondent unlawfully failed to transmit dues to IMOWU since about August 1, even though it had valid signed dues-checkoff authorization forms exe- cuted by employees, Respondent shall be ordered to remit to IMOWU the dues it should have checked of pursuant to its collective-bargaining agreement with IMOWU These dues payments, for the penod beginning when Respondent first ceased transmitting the dues to IMOWU (about August 1) shall be paid directly by Re- spondent, rather than being first deducted from the em- ployees' pay, but may be offset by the amount of dues voluntarily paid to IMOWU by the employees during this period Ogle Protection Service, 183 NLRB 682 (1970), Shen-Mar Food Products, 221 NLRB 1329 (1976), Fashion Furniture Mfg, 279 NLRB 705 (1986) Finally, Respondent will be ordered to bargain with IMOWU as the collective-bargaining representative of its employees in the above-descnbed unit The evidence establishes that at the October meetings with employees Respondent in- dicated that it would continue to follow the terms of the collective-bargaining agreement until its conclusion, June 1989 There is no evidence that any employee has suf- fered any loss of pay or benefits due to Respondent's withdrawal of recognition, if such a loss has occurred, the amount of reimbursement by Respondent can be de- termined at a supplemental proceeding in this matter On the foregoing findings of fact, conclusions of law, and the entire record, I issue the following recommend- ed° ORDER The Respondent, RemGnt Corporation, Bndgeport, Connecticut, its officers, agents, successors, and assigns, shall 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 1 Cease and desist from (a) Unilaterally granting wage increases to its employ- ees without first bargaining with IMOWU, the collec- tive-bargaining representative of its employees (b) Discontinuing the deduction of dues from the pay of its employees who authorized such deduction by the execution of a dues-checkoff authonzation form for IMOWU, and the transmittal of the dues to IMOWU (c) Refusing to recognize and bargain with IMOWU as the collective- bargaining representative of its employ- ees in the following appropriate unit All production, maintenance, shipping and office employees of the plant, excluding watchmen, guards, executive, administrative and professional employees, confidential secretaries, all other em- ployees handling confidential information and su- pervisory employees as defined in the Act (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the guaranteed them by rights under Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Immediately notify IMOWU, in wnting, that it rec- ognizes IMOWU as the collective-bargaining representa- tive of its employees in the above-descnbed unit, and that it will bargain with IMOWU regarding the imple- mentation of the existing collective-bargaining agree- ment, as well as the terms of a subsequent agreement when the existing agreement expires (b) Reimburse IMOWU for all dues that it unlawfully failed and refused to remit to IMOWU from the period of about August 1 to the present, as more fully described above in the remedy section (c) Post at its Bndgeport, Connecticut location copies of the attached notice marked "Appendix " 10 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by Any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER ORDERED that the consolidated com- plaint herein be dismissed Insofar as it alleges violations not specifically found " If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board shall read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" Copy with citationCopy as parenthetical citation