Tidewater Group, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 2001

333 N.L.R.B. 273 (N.L.R.B. 2001)

TIDEWATER GROUP 273
The Tidewater Group, Inc. and Laborers’ Interna-
tional Union of North America, FPS & PTE, Lo-
cal 571, AFL–CIO. Case 5–CA–28098
February 9, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On April 21, 1999, Administrative Law Judge James
L. Rose issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief. The Respon-
dent filed cross-exceptions, a supporting memorandum,
and a brief in partial opposition to the General Counsel’s
exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
and to adopt the recommended Order as modified and set
forth in full below.
AMENDED REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1), we shall order it to cease and desist and
to take certain affirmative action designed to effectuate
the policies of the Act.
We shall order the Respondent to bargain with the Un-
ion. We shall also order the Respondent to reinstate the
group health insurance coverage for bargaining unit em-
ployees that was previously provided through Alliance
Pro Inc. Employee Choice, or, if that insurance is no
longer available, to provide substantially equivalent cov-
erage. Finally, we shall order the Respondent to make
unit employees whole for any losses they may have suf-
fered because of the discontinuance of the health insur-
ance, as provided in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), with interest computed in the manner set
forth in New Horizons for the Retarded, 283 NLRB 1173
(1987).2

1 There are no exceptions to the judge’s disposition of all unfair la-
bor practice allegations, including his finding that the Respondent
violated Sec. 8(a)(5) and (1) by discontinuing payments for health
insurance for the unit employees. Both the General Counsel and the
Respondent agree, however, that the judge incorrectly found that these
payments should have been made to Man-U Service, the Union’s health
benefit trust fund, rather than to Alliance Pro Inc. Employee Choice,
the Respondent’s own group health insurance carrier. We have revised
the remedy, Order, and notice accordingly.
2 We leave it to the compliance stage of this proceeding to deter-
mine whether, as alleged by the Respondent, the Union and the Re-
spondent have reached an agreement which would satisfy the Respon-
dent’s remedial liability.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified and set forth in full below, and orders that the
Respondent, The Tidewater Group, Inc., Washington,
D.C., its officers, agents, successors, and assigns shall
take the action set forth in the Order as modified.
1. Cease and desist from
(a) Refusing to bargain with Laborers’ International
Union of North America, FPS & PTE, Local 571, AFL–
CIO as the exclusive collective-bargaining representative
of an appropriate bargaining unit of the Respondent’s
employees, by unilaterally ceasing payments for those
employees’ group health insurance through Alliance Pro
Inc. Employee Choice, a private insurance carrier.
(b) In any like or related manner, interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:
All regular full-time employees employed by the Re-
spondent at its Carderock Naval Installation, Bethesda,
Maryland location, excluding office clerical employees,
probationary employees, guards and supervisors as de-
fined in the Act.
(b) Reinstate the bargaining unit employees’ group
health insurance coverage by Alliance Pro. Inc. Em-
ployee Choice or, if that insurance is no longer available,
provide substantially equivalent coverage.
(c) Make the employees whole, plus interest, for any
losses they may have suffered because of the discontinu-
ance of the health insurance coverage.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of pay-
ments due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Carderock facility copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

333 NLRB No. 34
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 274
provided by the Regional Director for Region 5, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent 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 Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since June 30, 1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 refuse to bargain with Laborers’ Inter-
national Union of North America, FPS & PTE, Local
571, AFL–CIO as the exclusive collective-bargaining
representative of an appropriate unit of our employees,
by unilaterally ceasing to make payments for group
health insurance through Alliance Pro Inc. Employee
Choice, a private insurance carrier.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you under Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All regular full-time employees employed by the Re-
spondent at its Carderock Naval Installation, Bethesda,
Maryland location, excluding all office clerical em-
ployees, probationary employees, guards and supervi-
sors as defined in the Act.
WE WILL reinstate the employees’ group health insur-
ance through Alliance Pro Inc. Employee Choice, or, if
that insurance is no longer available, to provide substan-
tially equivalent coverage.
WE WILL make employees whole, plus interest, for
any losses they may have suffered because the health
insurance was discontinued.

THE TIDEWATER GROUP, INC.

Angela S. Anderson, Esq., for the General Counsel.
Francis T. Coleman, Esq., of Washington, D.C., for the Re-
spondent.
Michelle Simon, Esq., of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me on March 2, 3, and 4, 1999, at Washington,
D.C., upon the General Counsel’s complaint which alleged that
the Respondent discharged all employees in the bargaining unit
in violation of Section 8(a)(3) of the National Labor Relations
Act, as amended, 29 U.S.C. §151, et seq. It was also alleged
that the Respondent threatened employees with discharge in
violation of Section 8(a)(1) and engaged in certain activity
amounting to a refusal to bargain in good faith in violation of
Section 8(a)(5).
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends the employees
were discharged for cause.
On the record as a whole, including my observation of the
witnesses, briefs and arguments of counsel, I hereby make the
following findings of fact, conclusions of law and recom-
mended Order.
I. JURISDICTION
The Respondent is a Maryland corporation with an office
and place of business in Clinton, Maryland, and is engaged in
the business of providing custodial maintenance services to
various entities in the Washington, D.C. area, including the
Carderock Naval Installation at Bethesda, Maryland. In the
course and conduct of this business, the Respondent annually
performs services for the United States Government valued in
excess of $50,000 and the Respondent will annually purchase
and receive goods valued in excess of $5000 directly from
points outside the State of Maryland. The Respondent admits,
and I conclude, that it is an employer engaged in interstate
commerce within the meaning of Sections 2(2), (6), and (7) of
the Act.
TIDEWATER GROUP 275
II. THE LABOR ORGANIZATION INVOLVED
Laborers’ International Union of North America, FPS &
PTE, Local 571, AFL–CIO (the Union) is admitted to be, and I
find is, a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts in this matter are largely undisputed. For many
years, the Department of Navy has subcontracted the custodial
work at its Carderock facility, which contracts are subject to
competitive bid and are governed by the Service Contract Act,
41 U.S.C. §351 et seq. On March 16, 1998,1 the Respondent
replaced Jewell Industries, Inc. as the custodial contractor.
Upon assuming the contact, the Respondent interviewed, and
hired some of the incumbent employees as well as Supervisor-
Deborah Tabron to be the Respondent’s site manager. Accord-
ing to the testimony of Louis Brown, the Respondent’s execu-
tive vice-president for administration and operations, they hired
10 new employees and 10 who had worked for Jewell. How-
ever, a letter from Brown to the Union dated May 5 lists but 15
employees. The dues-deduction printout for February lists 26
employees. Comparing these two documents, it appears that
the Respondent hired 12 Jewell employees and 3 new ones.
The custodial employees comprise a bargaining unit which is
represented by the Union. The Union and Jewell had a collec-
tive-bargaining agreement executed on August 18, 1995, to be
effective from June 1, 1995, to November 15, 1998.
Brown conducted an orientation meeting for employees dur-
ing which, according to the undisputed testimony of Mamie
Burnett, he told them everything would remain the same except
for vacations. He told them that the company could not afford
to pay 4 weeks vacation—“no company could do that when
they first came in.”
The Union’s business manager, Cidalia Danahy, testified that
she learned in March that the Respondent had taken over the
Carderock custodial contract. She therefore wrote Brown stat-
ing that the Union represented a majority of the bargaining unit
and demanding recognition.
As indicated, the Union’s agreement with Jewell contained a
union-security clause. All employees in the bargaining unit
were members of the Union and their dues were deducted pur-
suant to checkoff authorizations. However, no such deductions
were made by the Respondent, nor did the Union seek to collect
dues until it completes an agreement with the Respondent.
Thus, dues were paid by the unit employees for February (pur-
suant to checkoff) but not thereafter.
By letter of April 21, Ms. Danahy was informed by the Re-
spondent’s then attorney that recognition would be granted
upon verification of authorization cards. On May 6, Brown
granted recognition. Thereafter, the parties began negotiations
for a collective-bargaining agreement, with the Union being
represented by labor consultant Joseph Danahy, Cidalia
Danahy’s husband.

1 All dates are in 1998, unless otherwise indicated.
The parties met July 15, August 5 and 27, and have had sub-
sequent meetings in 1999. Initially, according to Danahy, the
Respondent proposed to reduce wages and health benefits.
Danahy noted that under the Service Contract Act, the Respon-
dent was required to keep the wages and benefits at the same
level paid by Jewell for 1 year, or until March 16, 1999.
Thereafter, wages could be changed; however, he stated in
negotiations that more than likely, if a wage increase was nego-
tiated, the Government would reimburse the Respondent.
At the August 5 meeting, the Respondent agreed that it
would keep the wages and health benefits at the previous level
and this was put into the tentative agreement. And the Respon-
dent did continue paying the wage rate under the Jewell con-
tract; however, insurance was paid only through June. Appar-
ently, though it is unclear, some employees were not granted
vacations to which they would have been entitled had their
former service at Carderock been considered.
On August 13, Brown and the Respondent’s President and
owner, Westbrook Reginald Alexander I, were called by the
Navy’s contract administrators to discuss performance prob-
lems. Brown and Alexander were told to fix the problem.
They were called again on August 21 and told that they were
not getting the work done and needed to fix the situation. A
“cure” letter was prepared by Leon Butcher, the contract spe-
cialist who had overall responsibility for administering the
contact. At this meeting, LaVonne Jinks-Umstead, the supervi-
sory contract specialist, told Alexander to come up with a plan
to solve the problem, and she gave him until August 25. If he
failed to do so, she would issue a “cure” letter and initiate a
default action.
In order to have funds to meet operational expenses until
such time that the Government would pay its invoices, the Re-
spondent obtained funds through a factoring house. Although
Jinks-Unstead testified that Butcher did not have the authority
to instruct the factoring house to deduct anything from the Au-
gust invoice, he did so. Thus on Friday, August 28, Brown was
informed that the invoice had been reduced by $3464.92. This
meant that somewhere the Respondent would have to find
about $3000 in order to meet its payroll on August 31.
Over the weekend, Alexander and Brown discussed possible
solutions to their problem, with Brown recommending that the
entire work force be discharged, on grounds that they could not
pinpoint exactly who was at fault; and, they would be able to
assemble a new work force quickly from the 50 or so applica-
tions they had on file. On Monday, August 31, Alexander
agreed and at 4 p.m. that day met with the employees and told
them they were terminated. Each received a letter to that effect,
and another stating that the reason for termination was “Work
Slowdown, causing harm to the Company.”
B. Analysis and Concluding Findings
1. Threat of discharge
It is alleged that on August 28, Tabron told employees that
the Respondent would lay off all the employees because they
brought the Union in.2 Hazel Macon testified to this allegation:

2 The complaint was amended to allege the statement was made by
Tabron rather than Octavio Canas.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 276
Well, me and my manager (Tabron) was in the office
talking. It was on that Friday (August 28). And we had a
little talk. And then she told me, well, I told you all the
man wasn’t making any money.
So I said, well, that’s not our fault.
She said, but you all voted the union in on that man.
That man is not making no money. And now he’s going to
terminate all of you all.

Tabron credibly denied that she made such a statement to
Macon, or anyone else. She further testified that she was not
aware that the employees would be terminated until the after-
noon of August 31. There is no evidence, or any basis to infer,
that she had any prior knowledge of the discharge decision, or
was involved in any way in the decisional process. On balance,
I credit Tabron over Macon and conclude that the statement
attributed to Tabron was not made. Further, this statement is
not consistent with the overall facts of this matter. If true, it
might tend to show antiunion animus and a discriminatory mo-
tive in terminating the employees, but not necessarily, given
that she had nothing to do with the termination decision. Cali-
fornia Cooperative Creamery, 290 NLRB 355 (1988).
2. The termination
It is alleged that the Respondent’s termination of all employ-
ees in the bargaining unit was violative of Section 8(a)(3) be-
cause they had assisted the Union and other concerted activities
and to discourage them from doing so. A preponderance of
credible evidence does not support this allegation.
There is little persuasive evidence of animus against the Un-
ion. To the contrary, the Respondent voluntarily recognized the
Union upon a card check, and on request commenced bargain-
ing, which tend to show lack of such animus. Sun Coast Foods,
273 NLRB 1642 (1985). While the Respondent initially sought
a wage and benefits reduction, it soon came off that proposal.
In any event, I do not find the Respondent’s initial proposal to
be so outrageous as to imply animus.
While those employees who had worked for Jewell were
members of the Union, their membership had lapsed due to
nonpayment of dues. The Union’s policy is not to require em-
ployees to pay dues until a collective-bargaining agreement is
reached. Thus, at the time of the termination, none of the bar-
gaining unit employees was a union member and nothing, ex-
cept the particular individuals in the bargaining unit, has
changed. The Respondent still recognizes the Union as the
representative of its employees and is negotiating a collective-
bargaining agreement.
From the General Counsel’s witness Jinks-Umstead, it is
clear that by August the Respondent was not satisfactorily per-
forming under its contract with the Government, and, unless
there were immediate and dramatic changes, a default action
would be initiated. Thus the chain of events leading to the
terminations on August 31 began with the meeting of August
13 when Jinks-Umstead called in Alexander and Brown and
cumulated on August 28 when the Respondent learned that the
invoice, per instructions from Butcher, had been reduced
$3464.92.
It may well be that the Respondent tried to get by with too
few employees, having 15 as opposed to the 26 used by Jewell.
However, for purposes of this case, it does not matter whether
the source of the problem lay with the employees or with man-
agement—whether employees were not working to their poten-
tial or whether the Respondent had hired too few for the work
to be done adequately. It is not within the province of the Na-
tional Labor Relations Board to determine who caused the
problem, or the general fairness of the Respondent’s decision to
blame the employees and terminate them all. The issue here is
only whether the Respondent’s action was an unfair labor prac-
tice; that is, whether it was motivated by antiunion considera-
tions or because the employees engaged in protected concerted
activity, or to discourage them from doing so.
It is clear, and I conclude, that but for action initiated by the
Government, there would have been no termination of employ-
ees on August 31. The General Counsel seems to argue that
notwithstanding the Government’s role in this affair, since the
Respondent was in negotiations with the Union, and initially
sought a wage reduction, there must have been some antiunion
motive in the August 31 action. Further, the General Counsel
relies on the alleged statement by Tabron to Macon on August
28. I have concluded that Tabron did not make the threat al-
leged, and absent that, there is simply no evidence of antiunion
animus, and even if Tabron did make the statement attributed to
her, I doubt it would impute animus to the Respondent.
Accordingly, l conclude that the Respondent was not moti-
vated by the antiunion considerations, or sought to discourage
employees from engaging in union or other protected concerted
activity when it terminated all unit employees on August 31.
3. The refusal to bargain
It is alleged that the Respondent violated Section 8(a)(5) of
the Act by (a) unilaterally ceasing health insurance coverage for
unit employees, (b) insisted to impasse that wages and benefits
be excessively reduced from current levels, and (c) by its over-
all conduct, including the above, failed to bargain in good faith.
Pursuant to the Union’s collective-bargaining agreement
with Jewell, effective November 16, 1997, the company was to
pay on behalf of each employee $1.65 per hour to Man-U Ser-
vice Contract Trust Fund for health benefits coverage. While
the Respondent had another health plan for its employees, it is
unclear whether and to what extent Carderock employees were
covered. The Respondent contends that during negotiations, it
agreed to make the $1.65 per hour payment to the Union’s
health plan, but it has not done so. Whatever coverage the
employees had lapsed at the end of June. The Respondent’s
failure to make health care contributions is alleged a unilateral
change in a mandatory subject of bargaining and violative of
Section 8(a)(5).
Although the Respondent was not bound by its predecessor’s
collective-bargaining agreement, having recognized the Union
as the representative of its employees, it could not lawfully alter
those terms of employment which are mandatory subjects of
bargaining. NLRB v. Katz, 369 U.S. 736 (1962). No doubt
payment into a trust for health benefits is a mandatory subject.
Thus, by failing to make the appropriate payments to Man-U
Service without bargaining to impasse the Respondent violated
Section 8(a)(5) of the Act.
TIDEWATER GROUP 277
Though the Respondent is clearly a different employer from
Jewell, or other predecessors, and could treat employees as new
hires, an established term of employment is the Service Con-
tract Act requirement that time accrued with predecessors be
counted for vacation benefits. As with the Respondent’s at-
tempt to negotiate a wage reduction, its apparent refusal to pay
vacation benefits based on the employee’s past service seems to
suggest ignorance of the Service Contract Act. This, of course,
is not an unfair labor practice, however, the unilateral altering
of a mandatory subject of bargaining is. Failure to pay accrued
vacation benefits to employees would be unlawful. E.g., Vir-
ginia Sportswear, Inc., 226 NLRB 1296 (1976). However,
there are no facts concerning whether any particular employee
was denied vacation benefits. Nor was such a denial specifi-
cally alleged to be a violation of the Act. Therefore, the sug-
gestion by Brown that 4 weeks vacation would not be paid is
not included in the remedy.
I also conclude that the evidence fails to sustain the allega-
tion that the Respondent insisted to impasse that wages and
benefits be excessively reduced from the current levels. The
Respondent did make an initial proposal that wages and bene-
fits be reduced. However, during negotiations it was explained
to Brown that the Service Contract Act required that for 1 year
the wages and benefits remain as set and he agreed that the
Respondent would do so. Such was written into the Respon-
dent’s proposal.
The mere fact that one makes a proposal during negotiations
does not mean it has been insisted on to impasse or that by
making an unacceptable proposal there has been a violation of
Section 8(a)(5). I shall recommend that paragraph 11(b) be
dismissed.
Similarly, I find insufficient evidence that the Respondent’s
overall conduct in negotiations amounted to a predisposition
not to bargain in good faith. The parties met, negotiated and
reached agreement on many issues. While they remained apart
on some major items, I cannot find, in the Respondent’s overall
conduct, the requisite bad faith to support a finding of refusal to
bargain in good faith. Accordingly, I shall recommend that
paragraph 11(c) be dismissed.
REMEDY
Having found that the Respondent has committed certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act. Since the unfair labor practice
found was a violation of the Respondent’s bargaining duty, I
shall recommend that it be ordered to bargain with the Union in
good faith.
[Recommended Order omitted from publication.]