W. H. Froh, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1993

310 N.L.R.B. 384 (N.L.R.B. 1993)

384
310 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Chairman Stephens finds that the basis for his partial dissent in
Redd-I, Inc., 290 NLRB 1115 (1988), is not present here and agrees
that the amended complaint allegation of unlawful discrimination is
closely related to the original charge allegations and is, therefore, not
barred by Sec. 10(b) of the Act.
1 Unless otherwise stated, all dates are in 1991.
2 The General Counsel’s posthearing motion to substitute corrected
Tr. 480–502 for the corresponding pages in the original incorrect
version of the transcript is granted. Also granted is the General
Counsel’s motion to amend the transcript at Tr. 480–481 and 483–
485 to reflect correctly the identity of the speakers.
W. H. Froh, Inc. and Local 299, International
Brotherhood of Teamsters, AFL–CIO.1 Case 7–
CA–31438
February 8, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 24, 1992, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a brief and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, W. H. Froh, Inc., New
Haven, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Linda Hammell, Esq., for the General Counsel.
Terence K. Jolly and Marta D. Remeniuk, Esqs. (Matheson,
Parr, Schuler, Ewald, Ester & Cooke), of Troy, Michigan,
for the Respondent.
Ms. Sharon Davie, Recording Secretary and Business Agent,
Local 299, International Brotherhood of Teamsters, AFL–
CIO, of Detroit, Michigan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried at Detroit, Michigan, on January 27 and 28
and February 24, 1992.1 On an unfair labor practice charge,
filed on January 25 by the Charging Party, Local 299, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers, AFL–CIO (the Union), in Case 7–CA–
31438, the Regional Director for Region 7 issued a com-
plaint and notice of hearing on March 6, alleging that Re-
spondent, W. H. Froh, Inc., had violated Section 8(a)(5) and
(1) of the National Labor Relations Act, 29 U.S.C. § 151 et
seq. (the Act), by terminating a unit of employees and uti-
lizing other means to perform the work previously done by
the unit employees, without having given the Union, which
was the employees’ exclusive bargaining representative, a
meaningful opportunity to bargain collectively about the de-
cisions to terminate the employees and use other means to
perform their work.
On an amended charge filed by the Union on September
12, in Case 7–CA–31438, the Regional Director issued an
amended complaint and notice of hearing on December 27,
realleging the violations of Section 8(a)(5) and (1) of the Act
set forth in the original complaint, and further alleging that
by this same conduct Respondent had discriminated against
the unit employees in violation of Section 8(a)(3) and (1) of
the Act. Respondent has denied committing the alleged un-
fair labor practices.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Michigan corporation, with its principal of-
fice and place of business in the city of New Haven, Michi-
gan, transports freight and commodities in interstate com-
merce. During the year ending December 31, 1990, a rep-
resentative period, Respondent in the course and conduct of
its business, derived gross revenues in excess of $50,000
from the transportation of freight and commodities in inter-
state commerce. By virtue of its business operations, as de-
scribed above, Respondent functions as an essential link in
the transportation of freight and commodities in interstate
commerce. The amended complaint alleges, the Respondent
admits, and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The amended complaint alleges, Respondent admits, and I
find that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
On November 1, 1987, Respondent and the Union exe-
cuted a 3-year collective-bargaining agreement covering a
unit of Respondent’s employees, appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act, consisting of the over-the-road drivers at Respond-
385W. H. FROH, INC.
3 I find from Union Business Agent Sharon Davie’s testimony that
at all times material to this case, the Union’s bargaining unit at Re-
spondent’s New Haven facility included only Michael Robertson and
James Beversdorf.
4 I based my findings regarding Krueger’s job titles on his testi-
mony. Respondent’s witness, Vice President Michael Gene Neely,
testified that Krueger had been its comptroller. However, Krueger’s
assertion that he ultimately became a vice president remained
uncontradicted.
ent’s New Haven facility, which is described in the contract
as ‘‘the New Haven Foundry Division.’’ The contract’s expi-
ration date was October 31, 1990. This was the last of sev-
eral agreements marking a collective-bargaining relationship
dating back more than 11 years.
At all times material to this case, Respondent has aug-
mented its employee complement with 180 to 200 inde-
pendent contractors and their tractors. Respondent has uti-
lized its employees and the independent contractors to haul
freight in interstate commerce, within Michigan and between
the United States and Canada. In addition to the New Haven
facility, Respondent maintains terminals at Laredo and El
Paso, Texas.
Until 1987, Respondent utilized the bargaining unit em-
ployees mostly to service a single customer, New Haven
Foundry, hauling automotive castings. From 1987 until 1990,
the volume of Respondent’s business attributable to New
Haven Foundry decreased drastically. As this decrease con-
tinued, Respondent provided other work for the unit employ-
ees, without any reduction in working hours.
In 1987 or 1988, Respondent transferred driver Doube
from its Port Huron facility to the New Haven facility. The
record shows that he was a member of Local 339 and was
not included in the Union’s bargaining unit.3
The record is silent as to the details of any instance of
conflict between Respondent and the Union during the life
of their final collective-bargaining agreement. However, I
find from the testimony of Thomas Krueger, who Respond-
ent employed from June 1984 until September 1990, first as
comptroller and ultimately as vice president of finance and
operations,4 that Respondent and its president and owner,
William Neely, ‘‘[had] a history of kind of like battling with
the union over the course of [Krueger’s] employment [at
Froh], it was always a struggle.’’ I also find from Krueger’s
testimony that in 1989 and 1990, William Neely, repeatedly
voiced hostility toward the Union, and stated his desire to rid
his New Haven terminal of the Union. According to Krueger:
It was always [William Neely’s] opinion that all he
had to do was sell the equipment, get rid of the equip-
ment and by doing that, it would alleviate the necessity
to have union employees.
Krueger’s testimony also shows that President Neely’s ex-
press object in getting rid of the equipment was ‘‘basically
to break the [U]nion.’’
In August 1990, the Union notified Respondent, the
Michigan Employment Relations Commission, and the Fed-
eral Mediation and Conciliation Service that the 1987 collec-
tive-bargaining agreement would expire on October 31, 1990,
and that the Union wished to renew the agreement, but want-
ed to negotiate changes and revisions. In early October 1990,
the Union again notified Respondent of their contract’s ap-
proaching expiration and requested the scheduling of negotia-
tions. Receiving no response, the Union, on October 22,
1990, addressed another request to Respondent, seeking ne-
gotiations for a new contract. Respondent did not answer
until early December 1990.
By letter dated December 3, 1990, and received a few
days later, Respondent replied to the Union as follows:
This is to advise you that the company intends to
terminate the collective bargaining agreement. We are
willing to negotiate a closing agreement on behalf of
your two members. The market place, age of the
equpiment [sic], and potential litigation make it nec-
essary to terminate our agreement. Please call me at
your earliest convenience to set a date for a negotiated
closing.
The potential litigation referred to in Respondent’s letter
of December 3, 1990, became actual 2 days later. On De-
cember 5, 1990, the Central States, Southeast and Southwest
Areas Pension and Health and Welfare Funds, which admin-
ister benefits for Teamsters locals such as the Union, filed
a complaint against Respondent, in a United States district
court, alleging violations of statutory and contractual obliga-
tions to contribute to those funds. Under the expired collec-
tive-bargaining agreement, Respondent was obligated to con-
tribute to the fund on behalf of its bargaining unit employ-
ees. Central States claimed that Respondent was making in-
sufficient payments to the fund.
The filing of the complaint in the U.S. district court oc-
curred after the Central States Fund had audited Respond-
ent’s records. I find from Krueger’s testimony that at the
time Respondent discharged him in September 1990, the
Central States Fund had completed its audit. I also find from
Krueger’s testimony that the audit provoked some of Presi-
dent Neely’s antiunion remarks.
I find from the testimony of Respondent’s employee Carol
Bosche that, in October 1990, President William Neely ad-
vised her about the pending Central States Pension Fund law-
suit against Respondent. I also find from Bosche’s testimony
that conversations with William Neely and Respondent’s at-
torney, in Chicago, Charles Cole, taught her that Respondent
considered the lawsuit to be ‘‘a high priority item because
there was a significant potential dollar amount involved.’’
According to Bosche’s credited testimony, in October and
November 1990, Respondent believed the claim was for ap-
proximately $1.5 million.
On Friday, December 7, 1990, Michael Robertson, a mem-
ber of the New Haven bargaining unit, drove his assigned
tractor, designated as No. 1200, without encountering any
operating problem. At the close of the day, Robertson parked
his tractor, punched out, and went home for the weekend.
On Sunday, December 9, 1990, Robertson, who Respond-
ent had employed as a driver since May 1985, made his
usual weekend telephone call to Respondent’s dispatcher,
William Putsky, to inquire about a driving assignment.
Putsky announced that Robertson’s tractor was not available,
because of mechanical problems.
On December 10, Robertson phoned Vice President Mi-
chael Gene Neely, who returned Robertson’s call, and in-
formed him that he was laid off. Prior to this encounter with
Vice President Neely, Respondent had not warned Robertson
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Cited with approval in Litton Business Systems v. NLRB, 111
S.Ct. 2215, 2222 (1991); Teamsters Local 1199 v. Pepsi-Cola Gen-
eral Bottlers, 958 F.2d 1331, 1336 (6th Cir. 1992).
of a possible layoff. On or about December 12, Robertson
received a written notice from Respondent, under Vice Presi-
dent Neely’s signature, bearing the following message:
Effective with the end of your tour of duty for week
ending 12/8/90, you are hereby laid off until further no-
tice.
On Friday, December 21, James Beversdorf, a driver in
the Union’s foundry division bargaining unit, suffered the
same fate as Robertson had. Robertson, who had been driv-
ing for Respondent since 1960, completed his week’s work
on that Friday, and received a layoff slip from Vice President
Neely, bearing Neely’s signature, and the following message:
Effective with the end of your tour of duty for week
ending December 22, 1990, your are hereby laid off
until further notice.
Respondent had not given Beversdorf any warning of his lay-
off. In passing, Neely remarked, in substance, that
Beversdorf, Robertson, and Doube, the driver not included in
the bargaining unit, who the Respondent had also laid off in
December 1990, were not ‘‘cost-effective.’’
Doube did not testify. Nor did the parties offer any other
testimony or evidence showing the exact date and the cir-
cumstances leading up to Doube’s layoff. In any event, I find
that the amended complaint did not cover Doube’s layoff.
Following Robertson’s and Beversdorf’s layoffs, Respond-
ent continued to use between approximately 180 and 200
independent contractors to perform its work. It was to these
independent contractors that Respondent subcontracted the
work which Robertson and Beversdorf had been performing
up to their respective layoffs.
In January, Beversdorf and Robertson filed grievances
against Respondent claiming that their layoffs in December
1990 had violated the collective-bargaining agreement which
had expired on October 31, 1990. Article 7 of the expired
contract set forth a grievance procedure, culminating in arbi-
tration, covering ‘‘all grievances . . . arising under and dur-
ing the term of this Agreement . . . .’’ Respondent, in a let-
ter dated January 21, suggested a meeting between the Union
and Respondent to resolve Beversdorf’s grievance. The
grievances remain pending and unresolved. Respondent has
not offered to recall Beversdorf or Robertson.
B. Analysis and Conclusions
1. Deferral
Respondent urges that Board policy requires that I defer
the alleged violations of Section 8(a)(3) and (1) of the Act
to the parties’ contractual grievance-and-arbitration process.
The General Counsel contends that deferral would be inap-
propriate on the grounds that there is no contract between the
parties, that there is no arbitrator available to the parties, and
that Board expertise is necessary to resolve the issues raised
in the grievances. I find that Board policy bars deferral in
this case.
In United Technologies Corp., 268 NLRB 557, 560
(1984), the Board declared that it would defer the exercise
of its jurisdiction to the arbitral process in cases involving
alleged violations of Section 8(a)(l) and (3) of the Act.
Under United Technologies, supra, deferral is appropriate
where the parties’ collective-bargaining agreement includes a
grievance-arbitration provision, the parties have voluntarily
invoked the grievance machinery, and there is a reasonable
belief that the grievance-arbitration process will resolve the
dispute in a manner consistent with the Board policy ex-
pressed in Spielberg Mfg. Co., 112 NLRB 1080 (1955). The
Board has also recognized that the parties to an expired col-
lective-bargaining agreement have no contractual obligation
to adhere to the agreement’s arbitration procedure in process-
ing grievances arising after the agreement’s expiration date.
Hilton-Davis Chemical Co., 185 NLRB 241, 242 (1970).5
In the instant case, the grievances regarding employees
Robertson and Beversdorf arose when there was no longer a
collective-bargaining agreement in effect between the parties.
Thus, the grievance-arbitration procedure included in article
7 of the collective-bargaining agreement, which had expired
on October 31, 1990, was no longer binding on them. Nor
have the parties entered into any agreement providing for the
arbitration of grievances which might have arisen in the bar-
gaining unit after October 31, 1990. Thus, the Union is not
required to submit Robertson’s and Beversdorf’s grievances,
which arose out of their December 1990 layoffs, to arbitra-
tion. Indiana & Michigan Electric Co., 284 NLRB 53, 57–
58 (1987). Accordingly, under the Board’s policy, as set out
in United Technologies Corp., supra, which requires the ex-
istence of a grievance-arbitration agreement, I find that defer-
ral is not appropriate for the alleged violations of Section
8(a)(3) and (1) of the Act arising from Robertson’s and
Beversdorf’s December 1990 layoffs.
2. The alleged violations of Section 8(a)(3) and (1)
of the Act
The General Counsel contends that Respondent laid off
Robertson and Beversdorf to rid itself of the Union. Re-
spondent seeks dismissal of the amended complaint on the
grounds that the 6-month period of limitation in Section
10(b) of the Act bars these allegations, and, further, that the
General Counsel has not sustained his burden of proof. Ac-
cording to Respondent, economic problems compelled it to
lay the two bargaining unit employees off.
Turning to Respondent’s initial position, I find that the 6-
month period of limitation, contained in Section 10(b) of the
Act, did not preclude the General Counsel from amending
the original complaint in this case to include the alleged dis-
crimination against Robertson and Beversdorf. In reaching
this conclusion, I took note of the Board’s policy of allowing
the General Counsel ‘‘to add complaint allegations outside
the 6-month 10(b) period if they are closely related to the
allegations of the timely filed charge.’’ Redd-I, Inc., 290
NLRB 1115, 1116 (1988). In applying this ‘‘closely related’’
test, the Board considers, among other tests, whether the oth-
erwise untimely allegation arose from the ‘‘same factual situ-
ation or sequence of events as the allegation in the pending
timely charge.’’ Redd-I, Inc., supra, 290 NLRB at 1118.
In the instant case, both the timely allegations in the pend-
ing timely charge and the initial complaint, and those in the
otherwise untimely, amended charge, filed on September 12,
arose from Respondent’s termination of bargaining unit em-
387W. H. FROH, INC.
6 In the alternative, I find that Sec. 10(b) of the Act did not bar
the amendment to the initial complaint because the amended charge,
which added a second legal theory for finding a violation, ‘‘was thus
not an essential predicate for the [amended] complaint, as the [Janu-
ary 25] charge sufficiently identified the conduct in question to ac-
cord due process and fulfill the function of a charge under the Act’s
procedural scheme. [Citations omitted.]’’ Land Air Delivery, 286
NLRB 1131 fn. 3 (1987).
7 At the hearing in this matter, over Respondent’s objection, I per-
mitted the General Counsel to elicit testimony regarding remarks
made by Respondent’s counsel, Terence K. Jolly, in the course of
settlement efforts. Having reconsidered this ruling in light of Rule
408 of the Federal Rules of Evidence, I order that the testimony re-
garding those remarks be stricken. I also assure the parties that in
reaching my findings and conclusions in this matter, I have not con-
sidered those remarks.
ployees Robertson and Beversdorf, and Respondent’s use of
other means to perform their work. I find, therefore, that
Section 10(b) of the Act did not bar the allegation of unlaw-
ful discrimination in the amended complaint, which flowed
from the amended charge, and which was closely related to
the allegations in the charge underlying the initial com-
plaint.6
Section 8(a)(3) of the Act prohibits an employer from dis-
criminating ‘‘in regard to . . . tenure of employment or any
term or condition of employment to . . . discourage mem-
bership in any labor organization . . . .’’ Where the record
shows that an employer’s antiunion sentiment was a moti-
vating factor in a decision to discharge an employee, the em-
ployer will be found to have violated the Act unless the em-
ployer shows that the discharge would have occurred even in
the absence of the protected activity. NLRB v. Transportation
Management Corp., 462 U.S. 393, 400–403 (1983). Accord:
NLRB v. E. I. du Pont & Co., 750 F.2d 524, 528–529 (6th
Cir. 1984). Where the employer’s explanation for its action
are pretextual—that is, if the reasons either did not exist or
were not in fact relied on—the employer has not met its bur-
den, and the inquiry is logically at an end. Limestone Ap-
parel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982); Wright Line, 251 NLRB 1083, 1084 (1980), enfd.
on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
In presenting his prima facie case of wrongful motive in
the layoffs of drivers Robertson and Beversdorf, the General
Counsel has shown that they were the only employees in the
New Haven bargaining unit, which the Union represented.
The record also shows that during 1989 and 1990, Respond-
ent’s owner and president, William Neely, had repeatedly ex-
pressed hostility toward the Union.7 Throughout that period,
the Union and President Neely had a confrontational relation-
ship, marked by ‘‘a kind of like battling.’’ It was President
Neely’s oft-expressed view that getting rid of Respondent’s
tractors ‘‘would alleviate the necessity to have union em-
ployees.’’ His express object in disposing of the tractors was
‘‘to break the [U]nion.’’ As Respondent’s owner and presi-
dent, Neely had the power to accomplish this object.
The Central States, Southeast and Southwest Areas Pen-
sion and Health and Welfare Fund, referred to in the parties’
expired contract, and to which Respondent was required to
make contributions for the benefit of bargaining unit employ-
ees, annoyed President Neely in 1990. After auditing Re-
spondent’s records earlier in that year, on December 5, 1990,
Central States instituted an action in Federal court, alleging
that Respondent had failed to make sufficient payments to
the fund, as required in the collective-bargaining agreement
covering the New Haven Foundry unit. While the audit was
in progress, President Neely, in the course of complaining
about it, had expressed his desire to get rid of the Union to
avoid further liability to the Central States Fund. In sum, I
find that an antiunion atmosphere surrounded Robertson’s
and Beversdorf’s layoffs.
Additional circumstances suggest that President Neely’s
antiunion sentiment motivated Respondent when it decided
on the dates for laying off Robertson and Beversdorf. One
such circumstance is timing. Robertson received word of his
layoff, 5 days after the Central States Fund had filed its com-
plaint against Respondent, in Federal court, in Chicago, Illi-
nois. Respondent waited 11 more days to tell Beversdorf that
it was laying him off, effective December 22, 1990. In each
instance, Respondent imposed the layoff suddenly, without
giving the employee any warning. I find it significant that
Respondent’s letter of December 3, 1990, to the Union did
not announce these layoffs and their dates. This suggests that
as of December 3, 1990, Respondent had not decided on
those dates. Viewed against the background of President
Neely’s outspoken hostility toward the Union, these two cir-
cumstances strongly support the inference that the Central
States litigation provoked Respondent to rid itself of the
Union.
Respondent sought to rebut the General Counsel’s evi-
dence by showing that economic considerations motivated its
decision to lay off Robertson and Beversdorf. In support of
its defense, Respondent offered the testimony of its vice
president of sales, Michael Neely, that the reasons for the
layoffs were ‘‘the holidays,’’ ‘‘[t]he age of the equipment,
the condition of the equipment,’’ ‘‘[t]he union, wages, [and]
benefits,’’ and competition requiring Respondent to reduce
its rates. However, the proffered explanation does not with-
stand scrutiny.
In considering the role of the Christmas holidays in Re-
spondent’s decision, I note first that its letter of December
3, 1990, to the Union failed to mention the approaching holi-
days as reason to hasten negotiations for a closing agree-
ment. In any event, I find from the testimony of Vice Presi-
dent Neely and Respondent’s director of maintenance,
Terrance LeRay, that normally, during the last 2 weeks of
December, Respondent shut its operations down, repaired its
tractors, and laid off its drivers. However, in 1990, Respond-
ent abandoned that practice. It laid off driver Michael Rob-
ertson effective December 8, 1990, 9 days before the begin-
ning of the last 2 weeks of that month, and kept James
Beversdorf driving until December 21, 1990, 4 days into that
period. Thus, the record shows, contrary to Vice President
Neely’s testimony, that the approach of Christmas 1990 was
not a factor in the decision to lay off the two drivers.
Terrance LeRay’s testimony shows that as early as June
1990, he had concluded that the tractors assigned, respec-
tively, to Robertson and Beversdorf were in such a state of
disrepair that they were unsafe and did not satisfy Michi-
gan’s regulations regarding roadworthy tractors. The record
also shows that Respondent authorized Robertson and
Beversdorf to operate their tractors within Michigan, and be-
tween Michigan and points in other States, and in Canada,
during the second half of 1990, on a regular basis. It was
not until December 8, 1990, 3 days after the Central States
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 On September 1, 1992, approximately 6 months after I closed the
record in this matter, Respondent, by letter, offered into evidence an
attached letter, dated March 30, 1992, which recites the termination
of a contract between Respondent, New Haven Foundry, and other
firms, effective May 1, 1992. This latter date was well after the lay-
offs and the subcontracting referred to in the amended complaint.
Thereafter, on September 8, 1992, Respondent filed a formal motion
to accomplish the same purpose. The General Counsel has filed a
timely motion to strike the proffered evidence on the grounds that
its authenticity has not been established, and that it is irrelevant.
Finding merit in the General Counsel’s position, I reject Respond-
ent’s proffer.
9 The remedy applies to both the 8(a)(3) and (5) violations but
would also be appropriate for each violation itself. Continental
Winding Co., supra, 305 NLRB at 126 fn. 10.
Pension Fund had filed its complaint in Federal court in Chi-
cago, that Respondent decided to withdraw Robertson’s trac-
tor from service. Robertson’s daily logs for the workweek
beginning December 3 and ending on December 7, his last
day of work, showed that he drove his tractor 1214 miles
without encountering any defect in its performance. Nor was
there any evidence that any state or Federal agency had in-
spected Robertson’s tractor and directed its removal from
service. The urgency with which Respondent acted, on De-
cember 8, was not reflected in its letter of December 3,
1990, to the Union.
Two weeks later, Respondent removed Beversdorf’s tractor
from service. There was no showing that any governmental
authority had directed such action. Beversdorf had driven the
truck during the preceding week without interruption by me-
chanical failure. Again, there was no showing of any press-
ing need to remove Beversdorf’s tractor from service on De-
cember 21.
Respondent’s letter of December 3, 1990, said that ‘‘[t]he
market place’’ was one of the reasons for terminating its
agreement with the Union. Vice President Neely testified that
‘‘[t]he union, wages [and] benefits,’’ and competition from
other trucking firms, were additional factors which motivated
Respondent’s decision to lay off Robertson and Beversdorf.
However, assuming that these negative conditions existed in
December 1990, they do not explain Respondent’s apparent
haste in making that decision.8
In sum, I find that Respondent has failed to rebut the Gen-
eral Counsel’s strong showing that Respondent laid off Rob-
ertson and Beversdorf because they were members of the
New Haven Foundry bargaining unit. I further find that Re-
spondent resorted to these layoffs in reprisal for the Team-
sters Central States Pension Fund’s filing of a complaint
against Respondent on December 5, 1990. Accordingly, I
find that by laying off Robertson on December 8, 1992, and
Beversdorf on December 21, and by subcontracting their
driving work to independent contractors, Respondent violated
Section 8(a)(3) and (1) of the Act.
3. The alleged violation of Section 8(a)(5) and (1)
of the Act
The Court in Fibreboard Corp. v. NLRB, 379 U.S. 203,
215 (1964), held that ‘‘the replacement of employees in the
existing bargaining unit with those of an independent con-
tractor to do the same work under similar conditions of em-
ployment’’ was a mandatory subject of bargaining. Applying
that holding, I find that Respondent violated Section 8(a)(5)
and (1) of the Act by failing to provide the Union with an
opportunity to bargain about its decision to lay off bar-
gaining unit employees Robertson and Beversdorf, and sub-
contract their work to independent contractors. Continental
Winding Co., 305 NLRB 122 (1991). Where, as in the in-
stant case, such a decision was motivated by antiunion senti-
ment, the employer is not exempt from a bargaining obliga-
tion under First National Maintenance Corp. v. NLRB, 452
U.S. 666, 687–688 (1981). Continental Winding Co., supra.
CONCLUSIONS OF LAW
1. W. H. Froh, Inc. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union, Local 299, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees employed by W. H. Froh, Inc. at its
New Haven Foundry Division, including over-the-road driv-
ers, but excluding guards and supervisors as defined in the
Act constitute an appropriate unit for collective-bargaining
purposes within the meaning of Section 9(b) of the Act.
4. Respondent W. H. Froh has violated Section 8(a)(3)
and (1) of the Act by laying off employees Michael Robert-
son and James Beversdorf and subcontracting their work be-
cause the Union was their collective-bargaining representa-
tive.
5. Respondent W. H. Froh has violated Section 8(a)(5)
and (1) of the Act by unilaterally laying off Michael Robert-
son and James Beversdorf, and subcontracting their work be-
ginning about December 10, 1990, without providing the
Union with an opportunity to bargain about its decision to
do so.
6. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent W. H. Froh, Inc. has en-
gaged in certain unfair labor practices, I find that it must be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Because W. H. Froh, Inc. has discriminatorily laid off em-
ployees Michael Robertson and James Beversdorf, and sub-
contracted their work, and has unlawfully refused to bargain
with respect to the decision to subcontract the bargaining
unit work and lay off the bargaining unit employees, I shall
recommend that W. H. Froh, Inc. be required to restore the
status quo ante as it existed prior to the unlawful subcon-
tracting of unit work on December 10, 1990, reinstate em-
ployees Robertson and Beversdorf to their former driving po-
sitions, restore the bargaining unit work to them, and make
each of them whole for any loss of wages and benefits he
may have suffered as a result of the unlawful subcontracting
and layoffs. Continental Winding Co., supra. Backpay is to
be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).9
389W. H. FROH, INC.
10 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 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
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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, W. H. Froh, Inc., New Haven, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in, or adherence to, the
Union or any other labor organization by subcontracting bar-
gaining unit work, by laying off or discharging any of its
employees, or by discriminating in any other manner in re-
gard to their hire and tenure of employment or any other
term or condition of employment.
(b) Subcontracting work performed by employees in the
following unit, or laying them off, without prior notice to
Local 299, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO
and without having afforded it an opportunity to negotiate
and bargain with respect to such decisions:
All employees employed by W. H. Froh, Inc. at its
New Haven Foundry Division, including over-the-road
drivers; but excluding guards and supervisors as defined
in the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Resume its practice of assigning all bargaining unit
driving work to unit employees.
(b) Offer to Michael Robertson and James Beversdorf re-
instatement to their former positions, or to substantially
equivalent positions, with no loss of seniority or other rights
and benefits previously enjoyed, and if necessary sever all
contractual relations with others utilized to perform the driv-
ing formerly performed by them, and make them whole, with
interest, in accordance with the remedy section of this deci-
sion, for any loss of pay and benefits they may have suffered
because its unlawful decision to subcontract unit work and
lay them off in December 1990.
(c) Remove from its files any references to the unlawful
layoffs of employees Robertson and Beversdorf, and notify
them in writing that this has been done and that their layoffs
shall not be used as a basis for future personnel action
against them.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in New Haven, Michigan, copies of
the attached notice marked ‘‘Appendix.’’11 Copies of the no-
tice, on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourage membership in, or adherence to,
Local 299, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO or
any other labor organization, by subcontracting bargaining
unit work, by laying off or discharging any of our employ-
ees, or by discriminating in any other manner in regard to
their hire and tenure of employment or any other term or
condition of employment.
WE WILL NOT subcontract work performed by our employ-
ees in the following unit, or lay you off, without prior notice
to Local 299, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO
and without having afforded it an opportunity to negotiate
and bargain with respect to such decisions:
All employees employed by W. H. Froh, Inc. at its
New Haven Foundry Division, including over-the-road
drivers; but excluding guards and supervisors as defined
in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL resume our practice of assigning all bargaining
unit driving work to unit employees, and WE WILL offer to
Michael Robertson and James Beversdorf reinstatement to
their former positions, or to substantially equivalent posi-
tions, with no loss of seniority or other rights and benefits
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
previously enjoyed, and if necessary will sever all contractual
relations with others utilized to perform the driving formerly
performed by them, and make them whole, with interest, for
any loss of pay and benefits they may have suffered because
of our decision to subcontract unit work and lay them off in
December 1990.
WE WILL remove from our files any references to the un-
lawful layoffs of employees Robertson and Beversdorf, and
notify them in writing that this has been done and that their
layoffs shall not be used as a basis for future personnel ac-
tion against them.
W. H. FROH, INC.