Newcor Bay City Division

National Labor Relations Board - Board Decisions

Nov 15, 2007

351 N.L.R.B. 1034 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
351 NLRB No. 54
1034
Newcor Bay City Division of Newcor, Inc. and Local
496, International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of America (UAW), AFL–CIO. Case 7–CA–
48339
November 15, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
KIRSANOW AND WALSH
On November 7, 2006, Administrative Law Judge
Keltner W. Locke issued the attached bench decision.
The General Counsel filed exceptions and a supporting
brief, the Respondent filed an answering brief, and the
General Counsel filed a reply brief.1
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 exceptions2 and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions4
and to adopt the recommended Order.
ORDER
The complaint is dismissed.

1 Subsequently, the General Counsel filed a citation of supplemental
authority to NLRB v. Newcor Bay City Div. of Newcor, 219 Fed.Appx.
390 (6th Cir. 2007). The Respondent filed a response objecting to that
filing. We have accepted the General Counsel’s submission pursuant to
Reliant Energy, 339 NLRB 66 (2003).
2 No exceptions were filed to the judge’s finding that the Respondent
did not violate Sec. 8(a)(5) and (1) of the Act by transferring unit work
to nonunit employees without affording the Union notice and an oppor-
tunity to bargain.
3 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and adopt the
judge’s credibility findings, which were based on his observations of
the demeanor of the witnesses, solely on the ground that they are not
clearly contrary to all the relevant evidence.
4 The complaint alleges that the Respondent subcontracted certain
bargaining unit work because the Union filed unfair labor practice
charges against it, in violation of Sec. 8(a)(4) and (1) of the Act. As the
judge observed, 8(a)(4) allegations are analyzed under the framework
established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See All Pro Vending,
Inc., 350 NLRB 503, 515 (2007). Under that framework, it was the
General Counsel’s burden to establish discriminatory motivation by
proving the existence of protected activity, the Respondent’s knowl-
edge of that activity, and the Respondent’s animus against that activity.
See Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004),
citing Wright Line, supra at 1089. In light of the judge’s credibility
determinations, we adopt his finding that the General Counsel failed to
show that the Union’s filing of charges was a motivating factor in the
Respondent’s subcontracting decision. Accordingly, we shall dismiss
the complaint.
Jennifer Y. Brazeal, Esq., for the General Counsel.
Gary Klotz, Esq. (Butzel Long), of Detroit, Michigan, for the
Respondent.
Carlos F. Bermudez, Esq., of Detroit, Michigan, for the Charg-
ing Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on September 14 and 15, 2006, and October 10, 2006, in
Bay City, Michigan. After the parties rested, I heard oral ar-
gument, and on October 19, 2006, issued a bench decision pur-
suant to Section 102.35(a)(1) of the Board’s Rules and Regula-
tions, setting forth findings of fact and conclusions of law. In
accordance with Section 102.45 of the Rules and Regulations, I
certify the accuracy of, and attach hereto as “Appendix A,” the
portion of the transcript containing this decision.1 The Conclu-
sions of Law and Order are set forth below.
CONCLUSIONS OF LAW
1. The Respondent, Newcor Bay City Division of Newcor,
Inc., is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, Local 496, International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent did not violate any provision of the Act
alleged in the complaint.
On the findings of fact and conclusions of law herein, and on
the entire record in this case, I issue the following recom-
mended2
ORDER
The complaint is dismissed.
APPENDIX A
BENCH DECISION
This bench decision is issued pursuant to Section
102.35(a)(10) and Section 102.45 of the Board’s Rules and
Regulations. Concluding that the credited evidence does not
establish any of the violations alleged in the Complaint, I rec-
ommend that the Board dismiss it.
Procedural History
This case began on February 14, 2005, when the Charging
Party, Local 496, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
AFL–CIO, which I will call the “Charging Party” or the “Un-

1 The bench decision appears in uncorrected form at pages 649
through 680 of the transcript. The final version, after correction of oral
and transcriptional errors, is attached as “Appendix A” to this Certifica-
tion.
2 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
NEWCORE BAY CITY DIVISION 1035
ion,” filed its initial unfair labor practice charge in this proceed-
ing. The Union amended this charge on February 22, 2005 and
again on April 1, 2005.
On July 31, 2006, after investigation of the charge, the Re-
gional Director for Region 7 of the National Labor Relations
Board issued a Complaint and Notice of Hearing, which I will
call the “Complaint.” In issuing this complaint, the Regional
Director acted on behalf of the General Counsel of the Board,
whom I will refer to as the “General Counsel” or as the “gov-
ernment.”
On September 14, 2006, a hearing opened before me in Bay
City, Michigan. The parties presented evidence on that date, on
September 15, 2006, and on October 10, 2006. On October 16,
2006, counsel presented oral argument. Although not required
to do so, counsel for the General Counsel and Respondent also
submitted briefs. Today, October 19, 2006, I am issuing this
bench decision.
During the hearing, I granted General Counsel’s motions to
amend the Complaint caption to state the correct name of Re-
spondent, Newcor Bay City Division of Newcor, Inc., and to
amend paragraph 6 to allege that Kenneth DeRoche’s job title
is general assembly supervisor, rather than plant manager.
Additionally, upon General Counsel’s motion, I amended the
Complaint to allege that Ronald D. Conklin was Respondent’s
agent within the meaning of Section 2(13) of the National La-
bor Relations Act, which I will refer to as the “Act.”
Admitted Allegations
Based on admissions in Respondent’s Answer and on stipu-
lations received during the hearing, I make the following find-
ings. The Charging Party filed and served the charge and its
amendments as alleged in Complaint paragraphs 1(a), 1(b) and
1(c).
At all material times, Respondent has been a corporation
with an office and place of business in Bay City, Michigan, and
has been engaged in the manufacture, nonretail sale, distribu-
tion and service of welding and fabricating machines, as al-
leged in Complaint paragraph 2. It satisfies the Board’s stan-
dards for assertion of jurisdiction, as alleged in Complaint
paragraph 4, and is an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act, as alleged
in Complaint paragraph 5.
At all material times, Respondent’s general manager, James
Nicoson, and its general assembly supervisor, Kenneth DeRo-
che, have been supervisors within the meaning of Section 2(11)
of the Act and Respondent’s agents within the meaning of Sec-
tion 2(13) of the Act, as alleged in Complaint paragraph 6.
Based on the parties’ stipulation, I further find that at all mate-
rial times, Ronald D. Conklin has been Respondent’s agent
within the meaning of Section 2(13) of the Act.
The following employees of Respondent constitute a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act, as alleged in Complaint paragraph 7:
All full–time and regular part–time hourly employees em-
ployed by Respondent; but excluding salaried employees, Re-
ceiving Department employees, Plant Protection, foremen,
and supervisors as defined in the Act.
Since at least 1981, the International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, has been the exclusive bargaining representative of
the employees in the unit described above, and has been so
recognized by Respondent as alleged in Complaint paragraph 8.
This recognition has been embodied in successive collective-
bargaining agreements, the most recent of which was effective
for the period June 11, 2001 to June 10, 2004. At all times
since 1981, based on Section 9(a) of the Act, the International
Union has been the exclusive collective–bargaining representa-
tive of the employees in the unit described above, as alleged in
Complaint paragraph 9.
At all material times, the International Union has assigned to
its Local 496, the Charging Party, its responsibilities concern-
ing the representation of the employees in the unit described
above, as alleged in Complaint paragraph 10.
Contested Allegations
The Complaint alleges two distinct violations of the Act.
Complaint paragraphs 11, 12 and 16 allege that Respondent
violated Sections 8(a)(4) and (1) of the Act by subcontracting
bargaining unit work in retaliation for the Union’s filing of an
unfair labor practice charge in Case 7–CA–47590. Complaint
paragraphs 13, 14, 15 and 17 allege that Respondent made a
unilateral change in working conditions without first notifying
and bargaining with the Union, in violation of Sections 8(a)(5)
and (1) of the Act. The change, which allegedly took place
about January 1, 2005, concerned the assignment of mail deliv-
ery to employees outside the bargaining unit.
The 8(a)(4) Allegation
Many Board cases concerning the subcontracting of bargain-
ing unit work involve allegations that the subcontracting consti-
tuted a failure to bargain in good faith, and therefore violated
Section 8(a)(5) of the Act. The present case does not. Instead,
the present Complaint alleges, in effect, that Respondent sub-
contracted unit work to discriminate against employees because
their Union had filed a previous unfair labor practice charge.
The wording of the Complaint warrants examination. Com-
plaint paragraph 9 states, in its entirety, as follows: “Beginning
about October 2004, Respondent subcontracted certain unit
work.” Neither in this paragraph nor elsewhere does the Com-
plaint allege that the alleged subcontracting had an adverse
employment impact on a particular employee or employees.
Even if the Complaint had alleged that Respondent had vio-
lated Section 8(a)(5) by subcontracting without first notifying
and bargaining with the Union, the evidence must establish that
an employer’s unilateral action had a material, significant and
substantial effect on the terms and conditions of employment.
So even in that context, which focuses on an employer’s duty to
bargain with a union, the allegedly unlawful action’s impact on
employees must be examined.
Here, where the Complaint alleges that Respondent’s action
violated Section 8(a)(4) and not Section 8(a)(5), the General
Counsel must prove unlawful discrimination against an indi-
vidual, which, of course, is different from proving a breach of
the duty to bargain in good faith. More specifically, Section
8(a)(4) of the Act makes it unlawful for an employer “to dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1036
charge or otherwise discriminate against an employee because
he has filed charges or given testimony under this Act.” 29
U.S.C. § 158(a)(4) (italics added).
As the General Counsel’s brief points out, this allegation of
employment discrimination should be analyzed according to the
framework the Board established in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Under Wright Line, the General Counsel
must establish four elements by a preponderance of the evi-
dence.
First, the government must show the existence of activity
protected by the Act. Second, the government must prove that
Respondent was aware that the employees had engaged in such
activity.
Third, the General Counsel must show that the alleged dis-
criminatees suffered an adverse employment action. This third
element addresses a requirement explicit in the statutory defini-
tion: An 8(a)(4) violation must concern a discharge or other
discrimination against an employee. The government must
establish that some action by the Respondent caused an adverse
effect on the terms and conditions of employment of one or
more employees.
For purposes of the Wright Line analysis, I will assume that
the Complaint sufficiently alleges a violation of Section 8(a)(4),
even though I reach no conclusions on that question. The Gen-
eral Counsel must still, of course, prove that an employee has
suffered an adverse employment action because of Respon-
dent’s conduct.
Finally, Wright Line requires the government to show a link,
or nexus, between the employees’ protected activity and the
adverse employment action. More specifically, the General
Counsel must show that the protected activities were a substan-
tial or motivating factor in the decision to take the adverse em-
ployment action. See, e.g., North Hills Office Services, 346
NLRB 1099 (2006).
In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. To rebut
such a presumption, the respondent must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct. Wright
Line, 251 NLRB 1083, at 1089; Hyatt Regency Memphis, 296
NLRB 259, 260 (1989), enfd. in relevant part 939 F.2d 361 (6th
Cir. 1991). See also Manno Electric, Inc., 321 NLRB 278, 280
at fn. 12 (1996).
Applying the Wright Line Standards
Having described the Wright Line requirements, I will now
apply them to the evidence. The General Counsel clearly has
proven the first element. On June 16, 2004, the Union filed an
unfair labor practice charge against Respondent in Case 7–CA–
47590, and amended that charge on August 12, 2004. After an
investigation, the Regional Director for Region 7 of the Board
issued a Complaint on September 28, 2004. A hearing opened
before an administrative law judge on January 11, 2005. On
April 26, 2005, the judge issued a decision unfavorable to Re-
spondent.
The judge found that Respondent had violated Section
8(a)(5) of the Act by unilaterally putting into effect the terms
and conditions of employment it had proposed, even though the
Union had not agreed to those proposals and even though the
negotiations were not at impasse. In a Decision and Order
dated November 28, 2005, the Board adopted the judge’s deci-
sion, with some modifications to the judge’s remedial order.
The Board stated, in part, as follows:
Having found that the Respondent violated Section 8(a)(5)
and (1) of the Act, we shall order it to cease and desist, and to
immediately put into effect all terms and conditions of em-
ployment provided by the contract that expired at midnight on
June 10, 2004, and to maintain those terms in effect until the
parties have bargained to agreement or a valid impasse, or the
Union has agreed to changes. We shall order the Respondent
to make whole the unit employees and former unit employees
for any loss of wages or other benefits they suffered as a result
of the Respondent’s implementation of its final proposal on
June 11, 2004, as set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest as set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987). We shall order the Respondent to reim-
burse unit employees for any expenses resulting from the Re-
spondent’s unlawful changes to their health and dental bene-
fits, as set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), affd. 661 F.2d 940 (9th Cir. 1981), with interest
as set forth in New Horizons for the Retarded, supra. We shall
further order that the Respondent make all contributions to
any fund established by the collective–bargaining agreement
with the Union which was in existence on June 10, 2004, and
which contributions the Respondent would have paid but for
the unlawful unilateral changes, including any additional
amounts due to the funds in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 6 (1979).
Newcor Bay City Division, 345 NLRB 1229 (2005).
Respondent has appealed the Board’s order to the United
States Court of Appeals for the Sixth Circuit, where it is now
pending. Clearly, if the Court enforces the Board’s Order, it
will have serious economic consequences for Respondent.
The General Counsel also has established the second Wright
Line element. Certainly, Respondent had knowledge of the
protected activity. It received the charge, amended charge and
complaint, and participated in the hearing. The record leaves
scant room to doubt that Respondent’s management was aware
of the legal proceedings against it.
However, the third Wright Line element is more challenging.
At the outset, it may be noted that the Complaint does not iden-
tify any particular employee as a victim of unlawful discrimina-
tion. In certain uncommon circumstances, a Complaint might
satisfy the pleading requirements without naming any particular
person as a discriminatee. Perhaps it would suffice, depending
on the case, to describe a class of employees, such as replaced
strikers, adversely affected by an employer’s action. Is the
absence of a named discriminate fatal here?
A distinction must be drawn between pleadings and proof. I
should not reason that the General Counsel has failed to prove
the third element simply because the Complaint is vague about
who suffered the alleged discrimination. To determine whether
the government has satisfied this Wright Line requirement, we
NEWCORE BAY CITY DIVISION 1037
must look to the record rather than the pleadings.
To establish an 8(a)(4) violation, the General Counsel must
show, among other things, that an employer did something
which harmed an employee. In other words, the government
must demonstrate that some employee suffered an adverse em-
ployment action. I conclude that the General Counsel has, in
fact, proven an adverse employment action, but just barely. For
the following reasons, that conclusion is not free from doubt.
Respondent makes and repairs heavy manufacturing equip-
ment. Its customers operate factories where such equipment is
needed. Before 2004, Respondent fell into economic difficul-
ties and, over time, lost its customer base. Also over time,
Respondent laid off almost all of its hourly work force. Thus
Union vice president Jeff Ryan, who was working for Respon-
dent in July 2004, testified about a meeting that month in which
Human Resources Director Conklin described a possible con-
tract that would bring work for the bargaining unit employees
to do:
Q. Okay. And, now, you said there was this meeting.
What—to the best of your knowledge, what did Mr.
Conklin say regarding the American Axle contract?
A. It was quite a large job, I think 12,000 hours. It was
a big job.
Q. Is that what he said?
A. Yeah. They would have to call everybody back and
even maybe hire, is what he told us, but––
Q. Okay. So at the time when you had this conversa-
tion with Mr. Conklin about the American Axle contract,
were there employee—bargaining unit employees laid off?
A. Yes.
Q. About how many employees were laid off at that
time?
A. I’ll be guessing that there was only two or three of
us in the shop at that time––
Q. Well, I don’t want you to guess.
A. See, but I don’t really know.
From this and other testimony, I gather that Conklin’s de-
scription of the anticipated customer elicited a reaction similar
to one produced by describing a beefsteak to people who have
been adrift in a lifeboat for 3 weeks. As Respondent’s cus-
tomer based dwindled to zero, the active employee complement
similarly shrank, to the point where it appeared the bargaining
unit was dying. The prospect of new business raised hopes.
Ryan’s testimony leaves open the possibility that during this
July meeting, Conklin merely told the employees about an an-
ticipated customer, a deal in progress, rather than a firm order.
From other evidence, I conclude that this was the case. How-
ever, in the urgency of the moment, it was easy for the lis-
tener’s mind to transform the hope or expectation of a big order
into a “done deal.” In more sanguine circumstances, this pre-
mature jumping to a happy conclusion might be attributed to
wishful thinking, but here, desperation provided the fuel.
Our search for “discriminatees”—employees who suffered
adverse employment actions because of their protected activi-
ties (or the Union’s on their behalf)—leads us to these workers
on layoff mentioned by Ryan in his testimony. (More pre-
cisely, it focuses on those in layoff status in October 2004
when, according to Complaint paragraph 11, Respondent began
subcontracting “certain Unit work.”)
It is important to observe that the Complaint does not allege,
and the General Counsel has not contended, that Respondent
had violated the Act by laying off these employees. In the pre-
vious case, the Board found that Respondent had violated Sec-
tion 8(a)(5) of the Act by failing and refusing to provide certain
information requested by the Union, and by changing terms and
conditions of employment unilaterally. However, the Board
neither found an unlawful layoff nor ordered the reinstatement
of laid off employees.
In the absence of such allegations and supporting evidence, I
must simply conclude that the employees who were on layoff in
October 2004 were not in that status because of any unlawful
act of the Respondent. Indeed, although the Complaint de-
scribes the remedy sought by the government, that description
does not specifically include reinstatement of any of these laid
off employees. Logic suggests that it would be challenging for
the government to argue that laid off employees must be rein-
stated even though their layoffs had been lawful.
The remedy section of the Complaint seeks an order requir-
ing Respondent, among other things, to “[t]erminate the unlaw-
ful subcontracting described in paragraphs 11 and 12 and re-
store such Unit work to the Unit employees.” Presumably, that
would cause Respondent to recall some bargaining unit em-
ployees from layoff, but that would also be true had the Com-
plaint alleged that Respondent’s subcontracting had violated
Section 8(a)(5), rather than Section 8(a)(4). In other words, a
reinstatement remedy, whether explicit or implicit, does not
provide a sure guide to the type of violation which made such a
remedy necessary.
Layoff status does not deprive an individual of the protec-
tions of the Act. An employer certainly would commit unlaw-
ful discrimination if, to retaliate for a laid off employee’s pro-
tected activity, the employer sent the employee a letter stating
that the employee no longer was on layoff but had been fired,
and therefore had no expectation of recall. Arguably, if a simi-
larly–motivated employer took some action that diminished,
rather than extinguished, a laid off employee’s expectation of
recall, doing so also would constitute an adverse employment
action violating Section 8(a)(4). That provision itself makes it
unlawful “to discharge or otherwise discriminate against an
employee because he has filed charges or given testimony un-
der this Act.” (Italics added.)
Logically, when Respondent decided to contract out the
work generated by this new order, rather than assigning it to
recalled bargaining unit employees, that action reduced the laid
off workers’ chances of recall and reasonable expectation of
recall. Even though this reasoning appears a bit convoluted and
the impact on the laid off employees somewhat attenuated, the
particular circumstances of this case cause me to conclude that
the subcontracting caused sufficient harm to the laid off em-
ployees’ prospects for recall to constitute an “adverse employ-
ment action.”
Persuading the customer, American Axle, to place a big or-
der would keep the plant open—it allowed Respondent, in ef-
fect, to tread water – but this one contract certainly didn’t pull
Respondent out of the deep. This single deal did not guarantee,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1038
or necessarily increase the likelihood that Respondent would be
attracting more business in the future. Therefore, subcontract-
ing the existing work rather than recalling those on layoff cer-
tainly diminished their chances and expectations of ever being
recalled.
In sum, I conclude that the General Counsel has met the third
Wright Line requirement.
Finally, the government must prove a link between the pro-
tected activities and the adverse employment action. For the
following reasons, I conclude that the evidence does not satisfy
this fourth Wright Line requirement.
The General Counsel points to a comment attributed to Gen-
eral Manager Nicoson by two of the government’s witnesses,
although denied by Nicoson himself. Both Jeff Ryan and Scott
Dennis testified that Nicoson made this remark, about why
Respondent decided to subcontract the new work, during a
conversation with them on the shop floor on October 22, 2004.
Ryan testified that “Mr. Nicoson said that, because of finan-
cial reasons and because of the pending NLRB case, that [the
work] was going to be shipped out.” Scott Dennis gave the
following testimony:
Q. And what was said to the best of your recollection
in this conversation?
A. He said that he was afraid he was going to have to
send the American Axle job out for the pipe wire and build
unless we could get rid of the NLRB charges.
Q. Is there any doubt in your mind that he referenced
the NLRB charges in his conversation?
A. No doubt in my mind.
The General Counsel argues that Nicoson’s reference to the
case pending before the NLRB shows that an unlawful reason—
retaliation against the employees because of the unfair labor prac-
tice charge and subsequent Board proceedings – entered into the
decision-making process. However, Nicoson expressly and em-
phatically denied making the statement attributed to him. For the
following reasons, I do not believe this testimony by Ryan and
Dennis to be reliable, and do not credit it.
On cross-examination, Respondent’s counsel confronted
Ryan with a portion of his pretrial affidavit, which wasn’t to-
tally congruent with Ryan’s testimony during the hearing:
Q. Now Mr. Ryan, when you met with Mr. Nickerson
[sic] on October 22nd, your testimony was that he told you
that the subcontracting was being done for financial rea-
sons in the pending NLRB case?
A. That’s correct.
Q. And that’s what you testified to today?
A. Yes.
Q. When you gave your affidavit, do you remember
when you did that?
A. Yep.
Q. That was back in February of 2005?
A. Yep. Yes. I’m sorry. I—yep.
Q. At that time you said in your affidavit that Nicker-
son told you that the reasons were that, quote, “They could
get them cheaper,” and that, “The NLRB charges were out
there and was more convenient for them to do it out and
not do it there”?
A. That was terrible wording.
Q. That’s what you wrote at that time?
A. No, I didn’t write that. I said that over the phone
and a lady dictated that. I read that later and it looked ter-
rible to me, but.
. . . . .
Q. So what you’re saying is that the wording in your
affidavit in February 2005, now you’re not sure it’s really
very good, and now it’s not quite what you meant?
A. It speaks exactly what I meant.
Q. Okay.
A. Poorly worded.
Q. Poorly worded.
A. I would have worded it different.
The variation between Ryan’s pretrial affidavit and his tes-
timony at trial might reflect only a difference in phrasing, but I
am more concerned with the difference between the testimony
of Ryan and Dennis. According to Dennis, Nicoson not only
said that the existence of the NLRB charge affected Respon-
dent’s decision to subcontract the work, but also implied that
Respondent might reverse this decision if the Union withdrew
the charge. Thus, Dennis quotes Nicoson as saying “he was
afraid he was going to have to send the American Axle job out
for the pipe wire and build unless we could get rid of the NLRB
charges.” (Italics added)
Dennis thus would attribute to Nicoson another impropriety,
something akin to extortion (for want of a more delicate term).
At the least, Dennis’ testimony suggests that Nicoson was of-
fering to reverse the subcontracting decision as a quid pro quo
for the Union giving up its legal right to pursue a case which
turned out to have very serious consequences for Respondent.
Dennis’ testimony gains plausibility because, even if it were
somewhat more expensive for Respondent to do the American
Axle work in the plant, that would be a small price compared to
the substantial liability which could result from the case then
pending before the Board.
But here is the problem. Neither in his testimony at the hear-
ing nor in his pretrial affidavit, does Ryan corroborate Dennis’s
testimony on this point. Ryan never claims that Nicoson told
them the work would be subcontracted unless the Union “got
rid of the NLRB charges.”
Ryan is vice president of the Local Union. Reasonably, if
Nicoson had offered such a deal, or even implied it, Ryan
would have picked up on that fact and discussed it with other
Union officers. Whether the Union officials would take such
an offer seriously or as an insult, the offer certainly would gen-
erate conversation at the Union hall.
Moreover, because Ryan is an experienced Union officer, he
would appreciate the contribution such a comment could make
to the proof of unlawful motivation. Not only would Ryan be
likely to recall such a statement, he would be eager to testify
about it. But he did not. I conclude that Nicoson never made
the statement Dennis attributed to him.
There are other reasons to be concerned about the testimony
of both Ryan and Dennis. The Complaint also alleges that
Respondent reassigned certain work previously performed by
bargaining unit employees to other employees outside the bar-
NEWCORE BAY CITY DIVISION 1039
gaining unit. This work involved two trips to the post office
each day. The merits of this allegation will be examined later
in this decision, but the testimony of Ryan and Dennis about
this matter casts doubts on their credibility, and therefore is
appropriate to discuss here.
Both Ryan and Dennis testified that they performed this
work at various times. According to Ryan, in a “best case sce-
nario” it would take him about 45 minutes to gather all the mail
in the plant, take it to the post office, and then return to the
plant.
At one point in Dennis’ testimony, he said that this “mail
run” took almost an hour. At another point, Dennis testified
that it took “roughly an hour.” Because different people’s es-
timates of time vary, I conclude that no real inconsistency ex-
ists between the testimony of Ryan and Dennis.
However, General Manager Nicoson testified that the mail
run took far less time, because the post office was only about
1.4 miles from the plant. Moreover, Respondent introduced a
printout of information obtained from the Internet service
MapQuest, indicating that the post office was 1.39 miles away.
As already noted, Respondent’s volume of mail decreased
along with the number of its customers. It is possible that Ryan
and Dennis referred to some earlier period when the mail run
might have made more demands. However, Ryan did the mail
run until December 16, 2004, well after the decrease in volume.
There is no reason to conclude that Ryan was talking about
some earlier period.
In sum, it appears that Ryan and Dennis exaggerated the
amount of time spent on the mail run. As already noted, Ryan
is vice president of the Local Union, and Dennis also holds
Union office. He is a nightshift committeeman and also serves
on the bargaining committee. My observations of the witnesses
lead me to suspect that partisanship may have affected their
ability to recall events in a neutral way and without exaggera-
tion.
For all of these reasons, I have some doubts about the reli-
ability of the testimony given by Ryan and Dennis and do not
credit it to the extent it conflicts with that of Nicoson. Accord-
ingly, I find that Nicoson did not mention the NLRB case dur-
ing the October 22, 2004 conversation with Ryan and Dennis.
My decision to credit Nicoson, rather than Ryan and Dennis,
may warrant further discussion because Nicoson also offered
testimony in the previous case and the judge did not credit it.
The General Counsel suggests that this judge’s credibility con-
clusions, even if not binding here, are entitled to some consid-
eration and some weight.
In the previous Newcor case, the Board made findings of fact
and conclusions of law which, without doubt, are binding here
because of the principles of res judicata and collateral estoppel.
However, I do not understand counsel to be arguing that the
administrative law judge’s credibility findings in that case are
binding here, even though some of the same witnesses are in-
volved. Nonetheless, it appears clear that the General Counsel
would like to put those prior credibility determinations on the
scales of justice, for whatever weight they might add.
In her brief, counsel for the General Counsel quotes a portion
of that previous decision, in which the administrative law judge
states, “In general, I did not find Nicoson to be a credible wit-
ness based on his demeanor and his sometimes evasive and
defensive responses to questions.” As already indicated, the
General Counsel’s brief stops short of arguing that the previous
judge’s conclusions about a witness bind me if that same wit-
ness takes the stand in the present proceeding. Such an argu-
ment would not be persuasive.
Even assuming for the sake of analysis that Mr. Nicoson did
not testify credibly in the previous proceeding, that does not
compel a conclusion that he would testify falsely at a later date
about different facts. More persuasive would be an argument
that a witness who tried unsuccessfully to dissemble, only to be
found out by the judge, would be quite chastened by the experi-
ence and bent on avoiding a repetition of that mistake. Cer-
tainly, if a judge should detect untruthful testimony and expose
the prevaricator in his decision, that witness suffers a public
embarrassment; the judge’s criticism of him may be found not
only in secluded law libraries but also on the Internet, and there
it will remain indefinitely, accessible to all with a few clicks of
the mouse.
Anyone who has skated on a Michigan pond prematurely in
the winter, and who has fallen through, will take care not to
repeat the experience. Similarly, a witness who thought he
could embellish his testimony without detection, but then got
caught, reasonably would be less likely to skate on thin ice in
the future. Such a person logically would have lost confidence
in his fancied gift of blarney and gained more appreciation of
the possible consequences associated with giving false testi-
mony.
Additionally, fairness favors making a fresh credibility as-
sessment of each witness in this proceeding, whether that per-
son previously testified before the Board or not. Therefore, I
will decide issues of credibility based upon the facts in the pre-
sent record and, where appropriate, my observations of the
witnesses as they testified.
Based upon my observations of Nicoson in the present pro-
ceeding, I have considerable confidence in the reliability of his
testimony, and credit it. Therefore, I find that he did not make
any comment about the pending NLRB case when he spoke
with Ryan and Dennis on about October 22, 2006.
To establish a link between the protected activity and the ad-
verse employment action, the General Counsel does not rely
solely on the statement attributed to Nicoson by Ryan and Den-
nis. For one thing, the General Counsel argues that the timing
of events justifies an inference of unlawful motivation. The
General Counsel points to the relatively short time between
September 28, 2004, when the Complaint issued, and Respon-
dent’s October announcement that it would “outsource” the
work.
Even assuming that Respondent made no earlier announce-
ment, I am reluctant to infer unlawful motivation because this
time period, selected by the General Counsel, is relatively
short. The Union filed the initial charge in that case on June
16, 2004. If that date is used, then the interval becomes about
three and one-half months. In the absence of some other per-
suasive evidence of unlawful motivation, I am reluctant to infer
much from that long an elapsed time.
Arguably, Respondent might be more upset by the issuance
of a complaint—resulting in an unfair labor practice hearing—
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1040
than by filing of a charge. However, deciding which would
bother an employer more entails a bit of conjecture. In any
event, I do not believe drawing an inference from timing would
be appropriate here and shall not do so.
Citing Kidd Electric Co., 313 NLRB 1178, 1188 (1994), the
General Counsel’s brief argues that “Respondent’s defense that
it would have subcontracted the work despite the Charging
Union’s Board activity should fail because it did not follow the
past practice regarding subcontracting or the 2002 grievance
resolution, which is further evidence of pretext.” Whether or
not an employer followed its past practice or a prior grievance
resolution certainly would be relevant if the Complaint alleged
that the subcontracting constituted a failure to bargain in good
faith in violation of Section 8(a)(5). As already discussed, the
Complaint does not.
In a discrimination case analyzed under Wright Line, does an
employer’s departure from a past practice or grievance resolution
signify either pretextual motivation or the animus which may be
inferred from the assertion of such a pretext? Certainly, a devia-
tion from past practice has some relevance in the discrimination
context because it is evidence of disparate treatment. Thus, in
Kidd Electric, the administrative law judge noted that this par-
ticular employer had a past practice of retaining its mechanics
during slow periods rather than laying them off.
Here, the issue is not whether Respondent had a past practice
of retaining employees during slow periods but whether Re-
spondent had a past practice of subcontracting bargaining unit
work. The credited evidence is, in my view, insufficient to
establish such a practice.
A failure to follow a grievance resolution may also be rele-
vant to the issue of disparate treatment. However, in the instant
case, the government must show, in effect, an antiunion animus
which affected specific individuals. Even if Respondent failed
to follow a prior grievance resolution regarding subcontracting,
that deviation logically says very little about the Respondent’s
reasons for doing so. The reasons could be economic or vindic-
tive, but the fact that Respondent didn’t follow the grievance
resolution does not tell us which.
The government also challenges Respondent’s explanation
that the subcontracting saved money. Indeed, the General
Counsel’s brief cites various exhibits and figures to support the
argument that subcontracting would not result in the savings
which Respondent claimed.
However, I believe the government has misapprehended
much of the Respondent’s argument. Undoubtedly, saving
money was an important factor. Indeed, management had to
negotiate with the customer, American Axle, to obtain better
terms than initially offered. However, cost was only one factor,
albeit a major one.
To return to an earlier analogy, Respondent was struggling to
tread water and stay afloat. However, that analogy would not
be complete without a reference to the waves, that is, the uncer-
tainties. Respondent didn’t enter into the deal with American
Axle expecting it to be a source of great profit; the deal offered
something more valuable, a survival opportunity. The record
strongly suggests that management viewed the American Axle
deal as a last chance, as a reprieve, one that would either make
or break the business.
So, although Respondent carefully tried to avoid a deal that
lost money, it wasn’t seeking to get rich quickly. It simply
needed a dependable source of cash flow that would tide it
through this precarious period. For the moment, management
valued security and stability as essential to survival.
Although General Manager Nicoson initially favored doing
the American Axle work in the plant, ultimately he decided to
send the work to a subcontractor, Ultimate Manufactured Sys-
tems, Inc. Doing this would help tame the waves of uncertainty
in two ways.
First, it shifted some of the risk of noncompletion to the sub-
contractor. A company hard pressed for cash reasonably might
favor such a course because the company itself didn’t have the
reserves needed to pay late penalties or to shoulder other risks
associated with nonperformance or untimely performance.
Second, using a subcontractor would eliminate, or at least
minimize, the possibility that a strike would slow or stop pro-
duction. The expired collective–bargaining agreement included
a rather strong no–strike clause. The provision, found in Arti-
cle 8.1, proscribed various types of concerted activity which
could interfere with production, so long as the employer was
willing to settle a dispute through the negotiated grievance
procedure. This clause no longer was in effect, and the Union
could strike at any time.
Management regarded the American Axle work as essential
to the plant’s survival. It was, in this view, a once-only oppor-
tunity, a last chance. A strike which prevented the completion
of this job could well scuttle the last hopes of staying afloat.
Nicoson credibly testified that, on October 22, 2004, he told
Ryan and Dennis, in part, that “we were going to subcontract
the mechanical and electrical assembly on the American Axle
job because we didn’t have a signed contract . . .” In my view,
this statement did not reflect antiunion motivation, but rather
the Respondent’s concerns about beginning a job essential to
survival without the assurance of a no–strike clause.
The General Counsel’s argument focuses only on the issue of
cost savings, and not on management’s desire to protect this
work from unforeseen problems in much the same way a
camper would want to shelter a burning match from the wind.
Similarly, the government’s cost analysis doesn’t take into
account the benefits Respondent would gain by shifting some
of the risks to the subcontractor. Of course, the exact value of
this savings could only be determined in hindsight because, by
definition, unforeseen problems give little if any advance warn-
ing.
The precise issue, of course, does not concern the precise
value of the risk reduction benefit, as might be determined by
an accountant two years after the fact, but rather the importance
management ascribed to this factor in making the decision to
subcontract. The record persuades me that management con-
sidered risk reduction quite important.
The Board does not substitute its judgment for management
but instead tries to determine, as accurately as possible, what
considerations really motivated management to make a particu-
lar decision. Were the concerns unrelated to union and other
protected activities, or did antiunion animus somehow taint the
decision-making process?
Here, the credited evidence falls short of proving a nexus be-
NEWCORE BAY CITY DIVISION 1041
tween the protected activities and Respondent’s decision to
subcontract the work. Based on that evidence, I conclude that
neither antiunion animus nor a desire to retaliate tainted the
decision–making process. Because a preponderance of the
evidence does not establish this necessary connection, the Gen-
eral Counsel has not established the fourth essential Wright
Line element.
In these circumstances, the Respondent does not have a duty
to rebut the government’s case. However, even had the Gen-
eral Counsel proven the final Wright Line element, I would
conclude that Respondent had carried its rebuttal burden. The
legitimate business reasons discussed above would have caused
management to make the same decision, even in the absence of
protected activity. Therefore, I recommend that the Board dis-
miss the 8(a)(4) and related 8(a)(1) allegations.
The 8(a)(5) Allegation
Complaint paragraph 13 alleges that since “about January 1,
2005, contrary to its previous practice, Respondent assigned the
delivery of mail, which is Unit work, to its non-Unit employ-
ees.” Paragraph 14 alleges that the subject of paragraph 13 is a
mandatory subject of bargaining. Paragraph 15 alleges that
Respondent engaged in this conduct without having afforded
the Union prior notice and a meaningful opportunity to negoti-
ate and bargain about the alleged unilateral change and its ef-
fects on the bargaining unit. Paragraph 17 alleges that this
conduct violates Sections 8(a)(1) and (5) of the Act.
Based on the credited evidence, I find that until about De-
cember 16, 2004, bargaining unit employees typically went to
the post office in the morning and afternoon to pick up and
convey mail from the post office to the plant and vice versa.
Although bargaining unit employees usually performed this
duty, sometimes an employee outside the bargaining unit would
do it.
The collective–bargaining agreement which expired in June
2004 includes no obvious reference to this “mail run” duty, and
credited evidence indicates that the subject never arose during
negotiations for a contract to replace the expired agreement.
Based on the credited evidence, I conclude that on about De-
cember 16, 2006, Respondent reassigned the “mail run” work to
employees outside the bargaining unit, and did so without notify-
ing the Union in advance or affording it a chance to bargain.
Moreover, a unit employee’s job duties constitute a manda-
tory subject of bargaining. Therefore, if the reassignment of
mail run duties amounted to a material, substantial and signifi-
cant change in terms and conditions of employment, Respon-
dent breached its duty to bargain with the Union in good faith
and violated Sections 8(a)(5) and (1) of the Act. Ead Motors
Eastern Air Devices, Inc., 346 NLRB 1060 (2006) However,
not every change in terms and conditions of employment is
material, 342 NLRB 686 (2004).
The credited evidence fails to establish that any employee
experienced a reduction in hours of employment or pay because
of the change. Bargaining unit employee Jeff Ryan had been
performing the mail run duties for some time when he learned,
on December 16, 2004, that an employee outside the bargaining
unit would take over this task. However, Ryan did not suffer
any loss of pay or hours because of the change. Indeed, Re-
spondent made the change, at least in part, because it needed
Ryan to be working in the plant.
Moreover, I have not credited the testimony of Ryan and
Dennis that the mail run took at least 45 minutes and perhaps
an hour. Considering that Respondent’s mail lessened consid-
erably as it lost its customer base, and also considering the
closeness of the post office to the plant, I find that the mail run
on average probably took around 15 minutes. In these circum-
stances, I do not conclude that the change had a material, sub-
stantial and significant effect on the terms and conditions of
employment. See, e.g., Ironton Publications, Inc., 321 NLRB
1048 (1996).
In sum, I conclude that the credited evidence does not estab-
lish either the alleged violation of Section 8(a)(5) or the alleged
violation of Section 8(a)(4). Since Respondent did not violate
Section 8(a)(4) or 8(a)(5), there is no derivative violation of
Section 8(a)(1). Accordingly, I recommend that the Board
dismiss the complaint in its entirety.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Find-
ings of Fact, Conclusions of Law, and Order. When that Certi-
fication is served upon the parties, the time period for filing an
appeal will begin to run.
Throughout this proceeding, counsel consistently demon-
strated professionalism and civility, which are truly appreci-
ated. The hearing is closed.