University Moving & Storage Co.

National Labor Relations Board - Administrative Judge Opinions

Aug 29, 2005

07-CA-047352 (N.L.R.B. Aug. 29, 2005)

JD–70–05
Farmington Hills, MI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

UNIVERSITY MOVING & STORAGE CO.

and Cases 7-CA-47352
7-CA-47750

LOCAL 243, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
AFL-CIO

Joseph P. Canfield, Esq., and
Jennifer Y. Brazeal, Esq.,
for the General Counsel.
James B. Perry, Esq., and
Jack VanHoorelbeke, Esq.
(Dickinson Wright)
of Detroit, Michigan,
for the Respondent.
Thomas Weldon
of Plymouth Township, Michigan,
for the Charging Party.

DECISION

Statement of the Case

PAUL BOGAS, Administrative Law Judge. This case was tried in Detroit, Michigan, on
April 26 and 27, 2005. Local 243, International Brotherhood of Teamsters, AFL-CIO (“the
charging party” or “the Union”), filed the initial charge on April 2, 2004, and amended that
charge on May 17, 2004. The Union filed a second charge on August 6, 2004, and amended
that charge on September 29, 2004. The Director of Region Seven of the National Labor
Relations Board issued the consolidated amended complaint on September 30, 2004.
The complaint alleges that University Moving & Storage Co. (“the Respondent” or “the
Company”) violated Section 8(a)(3) and (1) and Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act) by refusing to pay unit employees their accrued vacation pay and sick
pay during a lockout. The complaint further alleges that the Respondent violated Section
8(a)(3) and (1) of the Act by refusing to release information regarding two employees that was
necessary in order for those employees to obtain certain other work during the lockout. The
Respondent filed an answer in which it denied that it had committed any violation of the Act.

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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following findings of fact and conclusions of law.

Findings of Fact

I. Jurisdiction

The Respondent has an office and place of business in Farmington Hills, Michigan, and
is in the business of providing local and long distance relocation services to customers both in
and outside the State of Michigan. During a representative year, the Respondent purchased
and received at its Farmington Hills facility goods valued in excess of $50,000 directly from
points outside of the State of Michigan. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

In addition, the Respondent admits, and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Background

The Respondent is a moving and storage company. It transports goods locally, long-
distance, and internationally. The allegations in this case concern the Respondent’s facility in
Farmington Hills, Michigan (“the facility”), one of its five locations. Since at least June 1, 1997,
the Union has been the designated exclusive collective bargaining representative of a unit of
employees at the facility. There are approximately 18 employees in that bargaining unit, which
is defined to include local drivers, local helpers, long distance drivers, long distance helpers,
warehousemen, packers and craters. The most recent collective bargaining agreement
between the parties went into effect on June 1, 2000, and expired on May 31, 2003.

On June 2, 2003, the first workday following the expiration of the contract, the
Respondent initiated a lockout of all unit employees. That lockout was continuing at the time of
trial in April 2005.1 In response to the lockout, the Union maintained a picket line at the facility
for approximately 3 months. John Nagel, one of the alleged discriminatees, participated in the
picket line for much of that time. Timothy Johns, another alleged discriminatee, participated in
the picket line for approximately 2 weeks.

After initiating the lockout, the Respondent denied employees accrued sick leave and
paid vacation benefits that those employees had earned through pre-lockout work. The
Respondent also refused to issue certification releases that Johns and Nagel needed in order to
qualify for work they were seeking with other employers.
1 The complaint does not allege that the lockout was unlawful and the General Counsel
stipulated at trial that the legality of the lockout was not an issue in this proceeding. General
Counsel’s Exhibit (GC Exh.) 1(n); Transcript (Tr.) 337-39.

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B. Sick Leave and Vacation Benefits

1. Contract Provisions

The collective bargaining agreement that expired on May 31, 2003, provided unit
employees with both sick leave and vacation benefits. The sick leave provision in the expired
contract provides in relevant part:

The employer shall provide employees with one (1) year or more of seniority, five
(5) days sick leave in each contract year. Employees must work sixty percent (60%) of
the previous contract year to be entitled to all five (5) sick days in the subsequent
contract year. Employees who do not achieve the sixty-percent (60%) shall be entitled
to sick days on a pro-rata basis. . . . Employees off due to occupational illness or injury
shall have such time included as time worked only to the extent of days missed in the
contract year in which the above occurred, provided such employee would have
otherwise worked.

* * *

Unused sick leave pay shall be paid to the employee at the end of each contract
year and shall not be accumulated from year to year.

Newly hired employees shall receive a pro-rata share of sick leave pay based
upon the number of months remaining between the date of the employee’s one (1) year
anniversary of employment and May 31 of the applicable contract year.

General Counsel’s Exhibit (GC Exh.) 3 at pages 31-32. Under this sick leave provision,
qualifying employees acquire a new allotment of sick days on the first day of each contract year
– i.e., on June 1. If an employee has any unused sick leave at the end of the contract year --
i.e., on May 31 – that sick leave does not carry-over to the next year, but the employee receives
a payout for the unused days.

The contract sections regarding vacation leave provide in relevant part:

Section 1. All employees must have been in the employ of the Employer for
twelve (12) consecutive months and must have worked seventy-five percent (75%) of
the total working days of said period in order to obtain any vacation. During the second
and subsequent years, the man must have actually worked sixty-percent (60%) of the
total working days of the year, but need not be employed for the full year to be eligible
for the vacation.

Section 2. Vacation pay shall be as follows:

One (1) year employment . . . . . . . . . . . . . . . One (1) week
Three (3) years employment . . . . . . . . . . . . Two (2) weeks
Ten (10) years employment . . . . . . . . . . . . Three (3) weeks
Fifteen (15) years employment. . . . . . . . . . . Four (4) weeks
Twenty-five (25) years of employment . . . . . Five (5) weeks

Compensation for each of the first two (2) weeks of vacation shall be computed
at forty-five (45) times the then prevailing straight time hourly rate.

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Section 3. All vacations earned must be taken by employees and no employee
shall be entitled to vacation pay in lieu of vacation. Employees who have not actually
worked sixty percent (60%) of the total working days of the year but who have completed
one (1) year of seniority, shall receive vacation on a pro-rata basis. This pro-rata
entitlement shall also include employees who have quit, been discharged, or laid-off
before they have worked their sixty-percent (60%); provided he has worked his first full
year.

Section 4. Employee, upon the giving of a reasonable notice of not less than one
(1) week to his employer, shall be given his vacation pay before starting on his earned
vacation.

Section 5. Vacation pay shall be paid and may be taken only after expiration of
twelve (12) consecutive months from the employee’s anniversary date. Vacations may
be taken at any time of the year; provided, however, that only twenty percent (20%) of
the employees in each classification shall be off at any one time unless otherwise
mutually agreed. Where more than twenty (20) percent of the employees in each
classification request vacation at the same time, seniority shall prevail.

Section 6. An employee who is on worker’s compensation shall have the time
spent on worker’s compensation counted as days worked for purposes of earning a
vacation entitlement; provided, however, the employee would have been scheduled to
work . . . . By anniversary year, it is understood and agreed that the parties mean the
time period from the anniversary date of any employees’ hire by the Employer until one
year therefrom. An employee on worker’s compensation shall not have his time so
spent counted as days worked in any anniversary year other than the year in which the
injury occurs.

GC Exh. 3 at pages 13-14. Under these provisions, the vacation benefit does not accrue on the
anniversary of the contract’s effective date, as is the case with sick leave, but rather on a date
that varies from employee to employee based on the individual’s hire date. Also unlike the sick
leave entitlement, if an employee does not use his or her allotment of vacation days during the
12-months after it is awarded, the unused vacation days expire without a payout. The contract
states that the Respondent will dispense vacation pay to employees who use accrued vacation
leave, and describes how such vacation pay will be calculated.

For both sick leave and paid vacation leave, an employee must have at least 1 year of
seniority in order to qualify for leave. To accrue the full allotment of leave the employee
generally must work at least 60 percent of working days during the 1-year period at-issue, but if
an employee works less than that percentage, he or she receives leave on a pro-rata basis. The
exception is that during the first year of an individual’s employment he or she must work at least
75 percent of working days in order to qualify for any vacation leave at all.

2. Respondent Denies Already-Earned Sick Leave and
Paid Vacation Leave to Locked-Out Employees

Under the above provisions, the unit employees were entitled to be paid for any sick
leave that they had accrued, but not used, during the contract year ending on May 31, 2003.
Five of the unit employees had accrued sick leave remaining at that time – between 1 and 3
days each. Under the contract, unit employees also accrued a new allotment of sick days on

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June 1, 2003, based on their work during the previous 12 months.2 Employees with one year or
more of seniority, who had worked at least 60 percent of working days during that period,
received a new allotment of 5 sick days on June 1, 2003. Those who worked less than 60
percent of the time received a pro-rata allotment of the usual 5 sick days. On June 1, 2004,
employees were entitled to a payout for the unused portion of that allotment.

As of May 31, 2003, fifteen of the unit employees had accrued, but unused, vacation
days. The number of unused vacation days remaining for individual employees ranged from as
few as 2 to as many as 21. Qualifying employees also received a new allotment of vacation
leave at their first anniversary date following the institution of the lockout. The maximum amount
of vacation an employee can earn under the contract is 5 weeks, and the actual number an
employee accrues depends on the number of years the employee has worked for the
Respondent and the percentage of days he or she worked during the 12-month period leading
up to the anniversary of his or her hire date.3

The Respondent has denied the above-described sick leave and paid vacation benefits
to employees since the start of the lockout.

3. The Company’s Response’s to Union and Employee
Inquiries about Accrued Sick and Vacation Leave

In 2003 and 2004, the Union and the Respondent had multiple bargaining sessions for a
new contract. Among the Union representatives who attended these meetings were: Thomas
Weldon (union business agent and vice-president of the local), Douglas Robinson (union
business agent), and Kevin Earl (union steward). The Respondent’s representatives included
Patricia Peterson (director of employee services) and James B. Perry (counsel for the
Respondent).4 At a session on December 22, 2003, Weldon stated that a number of employees
had told him that they had not received vacation and sick leave pay they were owed. Peterson
stated that there was “no contract in place.” Weldon asked the Respondent to provide
information on the vacation time that was still available to all employees. He requested this
information in order to determine how much accrued leave the employees still had so that the
benefit could be used. Perry agreed that the Respondent would check its records, chart the
information, and mail it to Weldon by mid January. January passed, and the Respondent did
not provide the information. The parties had a meeting on February 5, 2004, at which Weldon
again asked for the information. Peterson stated that she had not brought the information to the
meeting. Weldon asked the Respondent for information showing the vacation “left for all
employees,” and Peterson agreed to provide the information.

In a letter, dated March 1, 2004, from Peterson to Weldon, Peterson did not provide the
leave information, but did state a position regarding the question of employee vacation benefits.
2 As discussed in the analysis section below, the terms relating to sick leave and vacation
benefits remained in effect after the contract expired on May 31, 2003.
3 The contract provides that employees do not qualify for the 5-week maximum vacation
benefit until they have worked for the Respondent for 25 years. The record indicates that none
of the employees met the 25-year requirement. The most that any employee actually may be
eligible for is the 4 weeks paid vacation leave available to those with 15 or more years of
seniority.
4 Weldon, Peterson, and Perry also attended the trial: Weldon as a representative of the
Union and a witness for the General Counsel; Peterson as a representative of the Respondent
and a witness for the Respondent; and, Perry as trial counsel for the Respondent.

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Peterson stated that employees were only entitled to “paid vacation time” during the term of the
collective bargaining agreement, and since the contract had expired on May 31, 2003, the
Respondent did not believe the vacation provisions were in effect and “d[id] not see how any of
the bargaining unit employees would be entitled to vacation pay.” Peterson further stated that
“even if the vacation provisions in [the contract] somehow continued beyond the contract’s May
31, 2003 expiration date, we do not feel that those provisions entitle any of the bargaining unit
employees to any vacation pay,” since the contract states that employees are not entitled to
take vacation pay in lieu of vacation. Peterson offered to discuss the matter during the parties’
next collective bargaining session. The letter made no explicit mention of sick leave. In one of
their meetings, Peterson told Union officials that the Respondent’s practice was to pay
employees who resigned from their positions for any accrued sick leave and vacation leave they
had left, but the Union maintained that all of the employees planned to return to work with the
Respondent when the lockout concluded.5

As of the time of a bargaining session on April 16, 2004, the Company had not yet
responded to the information request, and at that meeting Weldon asked whether the
Respondent had the information on vacation entitlement. Perry answered that the Respondent
did not believe that the employees had “anything coming,” but that it could provide information
on how much leave individuals had actually taken. The parties agreed on a form that the
Respondent would use to report the vacation days and the sick leave days that each employee
actually had taken as of May 31, 2003.6 The Respondent was also to indicate each employee’s
Continued
5 Peterson gave testimony in which she arguably represented that, as early as the
December 22 meeting, the Respondent had informed the Union that the Company’s position
was that there was no vacation or sick pay owed. To the extent that this is what Peterson
claimed, I do not credit her testimony. Her version is uncorroborated and is contrary to the
testimony of Weldon and Robinson, both of whose testimony on this subject is consistent with
the existing contemporaneous notes they made of the meetings. Moreover, Peterson’s
testimony is undercut by the fact that the Respondent agreed on both December 22 and
February 5 to provide the Union with information on what leave the employees still had. If the
Respondent had already announced the position that the employees had no entitlement to
vacation leave, it would be unlikely to agree to provide information showing what vacation leave
the employees still possessed. Peterson’s testimony is also undermined by the March 1, 2003,
letter. In that letter, Peterson sets forth the Respondent’s position that the employees have no
vacation leave entitlement, but never claims or suggests that this position had been
communicated previously to Weldon or anyone else associated with the employees or the
Union. The letter simply announces the position – it does not, on its face, confirm or
recapitulate a stance that the Respondent had already taken. Based on my observation of the
demeanor of the witnesses, and the record as a whole, I do not credit Peterson’s testimony to
the extent that she claims the Respondent notified the Union of its position regarding vacation
and sick leave prior to March 1.
6 Weldon and Robinson testified that at meetings on December 22, 2003, and on February
5, 2004, Weldon had asked the Respondent to provide information showing how much leave
had been used by employees, as well as how much employees were owed. Tr. 58-60, 61-62,
185-87. Peterson, on the other hand, testified that on those dates the Union was seeking
information on what employees were entitled to, and had not requested information on what
employees had actually used. Tr. 296-97. Based on my assessment of the demeanor and
testimony of the witnesses, and after considering the contemporaneous notes made by Weldon
and Robinson, GC Exhs. 8 and 9, I conclude that on December 22 and February 5, Weldon
asked the Respondent to supply information regarding what vacation employees “had left” and
what employees “still had coming,” but did not specifically ask for a break down showing how

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_________________________
hire date on the form. At that meeting, and at subsequent ones, Perry offered to discuss the
issues regarding vacation and sick leave as part of the negotiations for a new contract, but
Weldon declined to address the questions relating to the already-owed benefits in that context.
By letter dated May 19, 2004, Peterson transmitted the completed vacation/sick leave form to
Weldon. Using the information on that form, Weldon calculated the amount of unused vacation
leave and sick leave each employee had as of May 31, 2003. Fifteen of the 18 unit members
were owed paid vacation days, ranging in number from 2 to 21 days each. Five of the
employees were owed sick leave – between 1 and 3 days each. As a group, the bargaining
unit was owed a total of 132 paid vacation days and 8 sick leave days as of May 31, 2003. This
does not take into account the new allotment of sick leave that employees accrued on June 1,
2003, or the new vacation leave that each employee accrued on his or her next anniversary
date based on pre-lockout service.

Johns believed he was entitled to both vacation and sick days, and in April 2004 he sent
a letter to the Respondent asking to be provided with those benefits. By letter dated April 22,
2004, Peterson responded that she had received the request, but said that “We do not believe
that any vacation pay is owed to you and I must deny this request for pay.” Similarly, Earl sent
a letter to Peterson requesting vacation and/or sick pay. By letter dated April 22, 2004,
Peterson replied “We do not believe that any vacation pay is owed you and I must deny this
request for pay.”

C. Certification Releases for Johns and Nagel

1. Driver Certification

The Respondent operates as an independent entity when performing local moves, but
when performing long-distance moves7 it operates in affiliation with another company, North
American Van Lines (NAVL). Not all of the Respondent’s drivers are authorized to perform the
NAVL-affiliated/long-distance work. A driver seeking certification to perform such work must
first submit an application to the Respondent, which the Respondent then transmits to NAVL for
a determination as to whether the individual meets applicable guidelines. If NAVL and/or its
parent corporation, SIRVA,8 conclude that the driver qualifies, then NAVL issues a safety
number to the driver, which establishes that the driver is certified to perform NAVL-affiliated
work while employed by the Respondent. The driver uses that safety number when performing
long-distance work for the Respondent or any other moving company affiliated with NAVL or
another SIRVA-owned van line. Long-distance drivers have the opportunity to work a greater
number of hours than do drivers who perform local work exclusively. As a general matter, the
pay for long distance work is higher than for local work.

Under the rules of SIRVA, if one of the Respondent’s NAVL-certified drivers wants to
much leave the employees had actually taken. On both December 22 and February 5, the
Respondent responded to Weldon’s information request by stating that it would provide the
information. The Respondent did not, until later, take the position that the employees had no
present entitlement to leave, but that the Company could provide information on what leave
employees had used.
7 “Long distance work” is defined under the expired contract as “all work beyond eighty-five
(85) miles by road mileage one way . . . computed from the City County Building located in the
City of Detroit.” GC Exh. 3, Page 5.
8 The record indicates that all the letters in the word “SIRVA” are to be capitalized, but not
whether SIRVA is an acronym, or, if so, what the acronym stands for.

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obtain work doing long distance moves for another company that operates under SIRVA’s
umbrella, that driver must first obtain a release from the Respondent showing that his or her
NAVL certification with the Respondent has been cancelled and that any outstanding issues
with the Respondent regarding such things as money owed or missing paperwork have been
resolved. The record shows that there are at least three long distance van lines under the
SIRVA umbrella -- NAVL, Global Van Lines, and Allied Van Lines. A certified driver with a
moving company affiliated with any one of the SIRVA-owned van lines cannot begin doing long
distance work for any other mover affiliated with one of those van lines unless the first moving
company issues a written certification release. SIRVA’s certification release policy applies only
to long-distance work, and only between movers that are under the SIRVA umbrella.9 Since
well before the lockout, the Respondent’s practice was not to release a driver until that driver’s
employment with the Respondent was terminated.

2. Johns and Nagel Denied Work after Respondent
Refuses to Release Them from Certification

When the Respondent locked out the unit employees, a number sought work with other
moving companies. Those who did included Johns and Nagel. Johns, a certified driver, applied
for a position with Rose Moving and Storage (Rose), and was hired on January 5, 2004. For
purposes of long-distance work, Rose is affiliated with Allied Van Lines (Allied), a SIRVA
company, and therefore Johns could not become certified to perform long-distance work with
Rose unless the Respondent first issued a written certification release. Johns submitted an
application for Allied certification. On January 29, 2004, Allied informed Rose that before Johns
could be certified he had to complete missing logbook entries for work performed on behalf of
the Respondent on July 23 - 25, and August 2 - 4, 2003. Johns, however, had been locked-out
by the Respondent on those dates and therefore had not performed any work that could be
entered in his logbook. At any rate, in an effort to address this obstacle to certification with
Allied, Johns submitted logbook entries noting that he was off duty on the dates in question.
The Respondent did not provide an explanation as to why it had erroneously reported that
Johns performed work on dates during the lockout.

On January 29 or 30, Johns tried to advance his effort to become Allied-certified with
Rose by submitting a letter to Jeff Moore, the Director of Qualifications for SIRVA, in which
he asked that his prior certification be cancelled even though he was not resigning his
position with the Respondent. Moore, in turn, contacted Peterson (the Respondent’s
director of employee services) on January 30, to inform her about Johns’ request and ask
her to complete the necessary certification release so that Johns could become Allied-
certified. Moore suggested that Peterson address any concerns she had about releasing
Johns from his certification during the ongoing lockout by noting in the paperwork that the
Respondent was only releasing Johns’ certification, not terminating his employment.
Three days later, on February 2, Moore contacted Peterson and Brad Squires, the
Respondent’s director of long-distance operations,10 to again ask that the Respondent
complete the necessary release paperwork so that Johns could become certified with
Allied Van Lines. Later that day, Squires responded on behalf of both Peterson and
himself, stating “We will only release [Johns] if he goes into our Farmington Hills office and
resigns his employment.” Moore did not give up, but suggested another solution – that
9 The record does not reveal how many moving companies there are in the Respondent’s
region that perform long-distance work, but which are not affiliated with SIRVA.
10 The complaint alleges, and the Respondent admits, that Peterson and Squires are agents
of the company.

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Johns be cross-certified with Allied while retaining his NAVL certification with the
Respondent. The same day, Squires rejected that solution as well. He wrote to Moore:

I don’t think that will work. If we allow [Johns] to go somewhere else without
terminating with us the union will have real issues with that. If Allied wants to put
him on, Allied should instruck (sic) him to terminate with University and we will all
move forward from there. For some reason the employee wants to work with Allied
but wants to stay in the union at [the Respondent]. This can not happen. Please
have him terminate and then qualify with Allied.

On February 10, Moore sent an e-mail communication to Squires from which it is apparent
that Moore had given up trying to convince the Respondent to agree to issue a certification
release for Johns. Moore stated that a written release was required by SIRVA’s corporate
transfer policy and that SIRVA would reject Johns’ request to transfer since the
Respondent was unwilling to provide the release.

Johns never personally contacted the Respondent to ask that he be released to
work with Rose. However, the subject of the certification release sought by Johns was
discussed during contract negotiations. At the February 5 bargaining session, counsel for
the Respondent repeatedly told the Union representatives that if Johns wanted to work at
another company “all he had to do” was resign. The Respondent’s counsel also asked
Weldon to inform employees that that the releases would be issued if they resigned.
During negotiations the Union representatives consistently took the position that none of
the unit members had resigned and that all of them intended to return to work for the
Respondent once the lockout ended. At a bargaining session on April 16, counsel for the
Respondent stated that it was his understanding that drivers had to terminate their
employment before the Respondent would issue a release, and he asked whether Weldon
had a different understanding. By this time the Respondent’s failure to execute a release
for Johns was the subject of an unfair labor practices charge, and Weldon refused to
discuss it in the context of negotiations over the terms and conditions for a new contract.

On May 6, over five months after Moore first requested that the Respondent
release Johns from his certification, and approximately one month after the Union filed an
unfair labor practices charge regarding the matter, the Respondent issued the paperwork
releasing Johns from his certification and enabling him to perform certified work with Rose.

Nagel was another certified driver with the Respondent. After being locked out by
the Respondent, Nagel sought to become a certified driver with Palmer Moving and
Storage (Palmer) – another SIRVA-affiliated company, but he encountered roadblocks
similar to those experienced by Johns. Palmer’s long distance manager, Christina
Borowski, had decided to hire Nagel as a certified driver, but was informed that the
Respondent refused to execute the necessary release paperwork. At first Borowski was
told, on December 2, 2003, that the problem was that Nagel had not submitted the
required log entries for goods he transported for the Respondent on August 20 - 21, 2003.
As with Johns, Nagel was locked out on the dates in question and therefore had not
performed work for which log entries were required. The Respondent did not provide an
explanation for this error and Borowski, a 25-year veteran of the moving industry, testified
that she had never before seen a company demand log entries from a driver because work
had been erroneously attributed to that driver.

The Respondent had not issued the release paperwork for Nagel as of February 10,
and on that date Moore informed Squires that SIRVA would not allow Nagel to transfer to

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Palmer since the Respondent was refusing to provide the release. In late April or early
May, a Union official first found out about Nagel’s problems getting released from his
certification.

On June 2, 2004, the Respondent issued the paperwork releasing Nagel to perform
certified work with another SIRVA-affiliated company. In that paperwork, the Respondent
did not state that Nagel’s employment had been terminated, but simply reported that since
June 1, 2003, Nagel had not worked for the company due to a labor dispute. By the time
the Respondent issued the release, Nagel no longer needed it, since he had found
employment as a certified driver with a non-SIRVA moving company. Nagel never
contacted the Respondent directly to ask that it release him to work for another SIRVA-
affiliated moving company.

D. Charge Filings

The Respondent contends that the allegations regarding the denial of vacation and sick
leave are time-barred under Section 10(b), an argument that necessitates a review of the
charge filings underlying the complaint.11 The record shows that the Union filed the first unfair
labor practices charge involved in this case on April 2, 2004. That charge alleged that “[s]ince
on or about February 2004, the above-mentioned Employer through its officers, agents and/or
representatives have discriminated against employees because of their union activities.” The
following May 17, the Union clarified its allegation by amending the initial charge to read: “Since
about January 5, 2004, the above referenced Employer through its officers, agents and/or
representatives has discriminated against employee Timothy A. Johns by failing to release
information because of his union activities.” The Union filed a second charge on August 6,
2004. That charge alleges, inter alia, that the Respondent discriminated against Nagel by failing
to release information, and that “[s]ince on or about March 1, 2004,” the Respondent had
“refused to pay employees vacation monies owed under the contract.” On September 29, 2004,
the Union amended the charge allegation regarding outstanding leave to claim that sick leave
benefits, as well as the vacation benefits, had been withheld. The amended allegation
regarding leave reads, “Since on or about March 1, 2004, the above referenced Employer
through its officers, agents and representatives have refused to pay employees vacation and
sick pay monies owed under the contract.”

E. Complaint Allegations

The complaint alleges that the Respondent’s refusal to provide unit employees with
vacation and sick pay owed under the expired contract is discriminatory in violation of Section
8(a)(3) and (1) of the Act, and a failure to bargain in good faith in violation of Section 8(a)(5) and
(1) of the Act. The complaint further alleges that the Respondent violated Section 8(a)(3) and
(1) of the Act by discriminatorily refusing to release information regarding Johns’ and Nagel’s
employment with the Respondent that was necessary for those individuals to obtain certain
other work during the ongoing lockout.
11 I may have inadvertently failed to receive General Counsel’s Exhibit 1 (formal papers) into
evidence during the trial. I hereby receive General Counsel’s Exhibit 1 into evidence.

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Analysis

1. Motion to Dismiss or Defer Allegations
Regarding Denial of Leave

At the start of trial, the Respondent presented a motion to dismiss the complaint claims
regarding vacation and sick leave benefits as untimely under Section 10(b), or, in the event that
I did not dismiss those claims, to defer them to the grievance and arbitration procedures of the
expired contract.12 Previously, the Respondent had petitioned the Director of Region Seven of
the Board to defer the claims regarding vacation and sick leave. The Regional Director denied
that petition as well as the Respondent’s subsequent request for reconsideration. At trial, I took
the Respondent’s motion under advisement. For the reasons discussed below, I now deny the
Respondent’s motion.

Timeliness

Section 10(b) of the Act, states in relevant part: “[N]o complaint shall issue based upon
any unfair labor practice occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such charge is made.”
The Section 10(b) period begins to run when the aggrieved party receives actual or constructive
notice of the conduct that constitutes the alleged unfair labor practice. Concourse Nursing
Home, 328 NLRB 692, 694 (1999). Notice, “whether actual or constructive, must be clear and
unequivocal.” Salem Elec. Co., Inc., 331 NLRB 1575, 1576 (2000); see also Patsy Trucking,
Inc., 297 NLRB 860, 862 (1990) (notice to charging party whether actual or constructive must be
“clear and unambiguous” to trigger Section 10(b) period). The party asserting the Section 10(b)
defense bears the burden of showing such notice. Salem Elec. Co., Inc., 331 NLRB at 1576;
Carrier Corp., 319 NLRB 184, 190 (1995); Leach Corp., 312 NLRB 990, 991 (1993), enfd. 54
F.3d 802 (D.C. Cir. 1995).

In this case, the first charge that mentioned the denial of vacation leave was filed on
August 6, 2004. That was well within the 6-month filing period that began on March 1, 2004 –
the date of Peterson’s letter announcing the Respondent’s position that unit employees had no
existing entitlement to “paid vacation time” and “vacation pay.” The Respondent has not shown
that the Union or employees had notice prior to March 1 of the Respondent’s intent to deny
vacation benefits to the locked-out employees. Before March 1, the Respondent had not only
failed to inform the Union that it would refuse to pay accrued vacation benefits to the locked-out
employees, but had twice promised to provide the information that the Union was seeking in
order to calculate how much leave each employee had left. Peterson’s statement on
December 22 that there was “no contract in place,” did not constitute “clear and unequivocal”
notice that the Respondent would later deny vacation benefits to the locked out employees. At
best that statement was cryptic, and any hint that it contained of the position that the
Respondent later took was dispelled by the subsequent assurances Perry and Peterson both
gave that they would provide the Union with the information relating to each employee’s
vacation leave. Those assurances certainly suggested that the Respondent was not foreclosing
the possibility that it would provide the vacation benefit once the paperwork was sorted out
showing how much unused vacation leave each employee possessed.
12 The petition does not seek dismissal or deferral of the complaint allegation that the
Respondent unlawfully refused to release information regarding Johns and Nagel. ALJ Exhibit 1
at page 6.

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The Respondent argues that the Union and employees had notice that a possible unfair
labor practice had been committed when the Respondent did not provide vacation pay on, or
shortly after, June 1, 2003 – the first day after the end of the previous contract year. However,
the June 1 date is not an especially significant one with respect to vacation leave, since the
accrual and expiration of vacation leave is not tied to contract years, but rather to the
anniversary date of the particular employee’s hiring. Under the contract, the employees’
vacation pay was not due until at least one-week after the employee requested it. The record
shows that the Union began to seek the leave benefits on behalf of employees on December
22, 2003, but the Respondent stalled that inquiry by repeatedly promising to provide the
necessary information and then failing to do so. Despite the Union’s efforts to discover the
status of the employees’ vacation leave allotments, the Respondent did not reveal that it would
withhold the benefit until the March 1 letter. In addition, the record does not show that any
individual employee had requested that the benefit be paid until Johns and Earl made their
requests in about April 2004 – after the Respondent’s March 1 announcement. I conclude that
the evidence does not show that, at any time prior to the March 1, 2004, letter, the Respondent
gave either actual or constructive notice of its intent to deny vacation benefits to the locked-out
employees. Therefore, the complaint allegation that the Respondent unlawfully denied vacation
benefits to the locked-out employees is not time barred.

The Respondent has also failed to show that the charge regarding sick leave was
untimely. The six-month period should be calculated in this instance on the basis of the timely
charge filed on August 6, 2004, not the September 29, 2004, amendment to that charge which
first mentioned sick leave. Although the relevant portion of the August 6 charge referred to
unlawful denial of the vacation leave benefit, not sick leave, I conclude that the sick leave
allegation was sufficiently related to the August 6 allegation to make it appropriate to refer back
to that earlier charge for purposes of determining timeliness. As the Board has held, allegations
that involve events occurring more than 6 months prior to the filing of the charge are still
considered timely if those allegations are "closely related" to the allegations made in a timely
charge. Seton Co., 332 NLRB 979, 982-83 (2000); Nickles Bakery of Indiana, 296 NLRB 927
(1989); Redd-I, Inc., 290 NLRB 1115, 1116-18 (1988); see also Ross Stores, Inc., 329 NLRB
573, 573 fn. 6 (1999) (the "closely related" standard applies both when the question is whether
otherwise time-barred allegations in an amended charge relate back to the allegations of an
earlier timely filed charge, and where the question is whether the allegations in a complaint are
sufficiently related to those in a charge.) enf. denied in part 235 F.3d 669 (D.C. Cir. 2001).

To determine if allegations are closely related, the Board considers: (1) whether the
allegations involve the same legal theory; (2) whether the allegations arise from the same
factual circumstances; and (3) whether the respondent would raise similar defenses to the
allegations. Nickles Bakery, 296 NLRB at 928; see also Redd-I, Inc., 290 NLRB at 1118.13 In
this case, the allegation regarding the sick leave benefit is based on the same legal theories as
the allegation regarding the vacation benefit – i.e., that the denial of the benefit during the
lockout was inherently destructive of Section 7 rights and discriminatory in violation of Section
8(a)(3) and (1), and also violated the Respondent’s obligation to bargain in good faith under
Section 8(a)(5) and (1). Factually, both allegations revolve around the same circumstances –
i.e., the lockout, the Union’s requests for information regarding outstanding leave, the
Respondent’s delay in providing that information, and its eventual refusal to provide the unused
13 The Board has treated these as factors to guide analysis of the issue, not as requirements
all of which must be met. See, e.g., Nickles Bakery, 296 NLRB at 928; Redd-I, 290 NLRB at
1116.

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leave benefits. For the most part the Respondent’s defenses are also the same – e.g., the
benefits did not survive the contract expiration, there is no showing of antiunion animus, and the
Respondent has offered to bargain over the issues involving unused vacation and sick leave.
For these reasons, I conclude that the allegations regarding sick leave are closely related to
those regarding vacation and that the sick leave claim is timely as long as the Union or
employees did not have notice of the Respondent’s denial of the benefit more than six months
prior to the August 6 charge – that is, prior to February 6, 2004.

In this instance, the Respondent has not shown that, prior to February 6, it gave the
Union or employees actual notice that the Company was refusing to provide employees with
their accrued sick leave benefits.14 The closer question is whether the Respondent has shown
that the Union had “constructive” notice prior to February 6. The Respondent contends that
since employees were entitled to be paid for any unused sick leave they had on May 31, 2003 –
at the end of the contract year – the Union should have known that the Respondent was
denying the benefit when it did not make the payments on June 1 or shortly thereafter. I have
considered this argument, but conclude that the record evidence is insufficient to show
constructive notice that is “clear and unequivocal.” First, although the employees were
contractually entitled to the sick leave payout at the end of the contract year, the Respondent
did not show that the company’s prior practice was to pay those benefits on that date or soon
thereafter. Nor did the Respondent show that the payment was made automatically, rather than
when the employee requested it. Assuming that employees were required to request the
payout, the record does not show that they could follow the established procedures for making
such requests at a time when the Respondent would not permit them to enter its offices.
Moreover, I would expect that the lockout, and the absence of regular paydays during that
period, created some confusion about how the company would handle the logistics of making
any remaining payments to which employees were entitled. On this record, it would be unfair to
conclude that the Union or employees should have grasped that the Respondent never intended
to make the required payouts for accrued sick leave, simply because the Respondent did not
make those payouts promptly at the end of the contract year. Given the gaps in the picture
provided by the record in this case, it cannot be said that the Union or employees had the
requisite “clear and unequivocal” notice of the denial of the sick leave benefit when the
Respondent failed to make those payments at the end of the contract year or shortly thereafter
or at any other time prior to February 6. As the party arguing for dismissal on timeliness
grounds, the Respondent bears the burden of proof on the question of whether there was “clear
and unequivocal” constructive notice more than 6 months before the charge, and it has failed to
meet that burden here.

I conclude that the evidence does not show that, at any time beyond the charge filing
period relevant to the vacation and sick leave allegations, the Union or employees had either
actual or constructive notice of the Respondent’s intent to deny those benefits to the locked-out
employees. Therefore, the complaint allegation that the Respondent unlawfully denied the
vacation and sick leave benefits to the locked-out employees is not time barred, and the motion
to dismiss based on Section 10(b) is denied.
14 Indeed, it is not clear from the record that the Respondent ever made such an
announcement prior to the relevant charge filing. In her March 1, 2004, letter, Peterson stated
that employees were not entitled to vacation leave, but did not mention sick leave. Later in April
2004, when Johns and Earl made requests for vacation and sick leave benefits, Peterson chose
to address only the vacation leave question, and not the related issues involving sick leave.
Thus it may well be that the sick leave claim is timely even if the Section 10(b) period is
calculated based on the charge amendment the Union filed on September 29, 2004.

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Deferral

The Respondent argues that the allegations regarding accrued leave, if not dismissed,
should be deferred to the contractual grievance and arbitration procedures. Under Collyer
Insulated Wire, 192 NLRB 837 (1971) and United Technologies Corporation, 268 NLRB 557
(1984), deferral is appropriate when the following factors are present: the dispute arose within
the confines of a long and productive collective-bargaining relationship; there is no claim of
employer animosity to the employees’ exercise of protected statutory rights; the parties’
agreement provides for arbitration of a very broad range of disputes; the arbitration clause
clearly encompasses the dispute at issue; the employer has asserted its willingness to utilize
arbitration to resolve the dispute; and the dispute is eminently well suited to such resolution.
Wonder Bread, 343 NLRB No. 14, slip op. at 1 (2004); see also United Technologies, 268 NLRB
at 558.

In this case, the vacation and sick leave issues presented are not “eminently well suited”
to resolution through arbitration. Deferral to arbitration is not appropriate when, although
contract provisions are involved in a dispute, those provisions are clear and unambiguous and
do not present problems that require the special competence of an arbitrator. See New Mexico
Symphony Orchestra, 335 NLRB 896, 897 (2001) and R.T. Jones Lumber Co., 313 NLRB 726,
727 (1994); see also Clarkson Industries, 312 NLRB 349, 351 (1993) (a case is eminently well
suited to arbitration when “the contract and its meaning lay at the center of the dispute”). In the
instant case, the issue of whether employees were entitled to be paid for the accrued sick leave
they had remaining on May 31, 2003 (at the end of the contract year), presents no question of
contract interpretation at all. The contract language explicitly and unequivocally provides for
that benefit and the Respondent does not argue that there is another way to interpret the
relevant language.15 To the extent there are questions about whether employees were entitled
to receive additional sick and vacation leave benefits, those questions depend not on an
interpretation of the contract language, which again is unambiguous, but primarily on Board
precedent concerning a party’s obligation to give effect to contractual terms after a contract’s
expiration and during a lockout. Moreover, with regards to both the denial of sick leave and the
denial of paid vacation, the Respondent contends that it met any bargaining obligation it had
under Section 8(a)(5) by offering to discuss the denial of leave during negotiations for a new
contract. Whether the Respondent is correct in that contention is not a matter of contract
interpretation, but of applying the relevant precedent regarding the Respondent’s bargaining
obligations to the facts of this case. These are the sort of legal questions that fall within the
special competence of the Board, not that of an arbitrator. Carpenters (Mfg. Woodworkers
Assn.), 326 NLRB 321, 322 (1998).

With respect to the denial of paid vacation, the Respondent attempts to cast the issue as
one of contract interpretation by noting that the agreement provides that employees may not
take “vacation pay in lieu of vacation” and by contending that how that proscription should be
interpreted during a lockout is a question that must be answered by construing the contract and
the past practices under the contract. The Respondent might be able to make a credible
argument along these lines if it had only denied employees the opportunity to take vacation pay
in lieu of paid vacation time. However, the record here shows that the Respondent denied paid
vacation, not just pay in lieu of vacation. As discussed above, the Union requested information
15 The contract provision, which is set forth more completely above, states in relevant part:
“Unused sick leave pay shall be paid to the employee at the end of each contract year and shall
not be accumulated from year to year.”

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showing how much leave was left for each employee so that it could seek the remaining
benefits for those employees. In the March 1 letter, the Respondent answered by announcing,
inter alia, that employees were not entitled to any “paid vacation time” after the expiration of the
contract since the vacation provisions were no longer in effect. Therefore, it does not matter
whether the contract should be interpreted to permit employees to receive vacation pay “in lieu
of” paid vacation during the lockout, because the Respondent was denying employees the
vacation pay that accompanies paid vacation, not vacation pay “in lieu of” vacation. As is
discussed below, the Board has repeatedly upheld the right of employees to take their accrued
paid vacation time even if they are already off-work due to a strike or lockout.

The Respondent also argues that there is a question of contract interpretation because
the leave benefits are available only to employees who meet contractual requirements regarding
length of service and percentage of days worked. However, those requirements are clearly and
unambiguously set forth in the contract. The Respondent does not offer any interpretation of
those requirements that creates a controversy regarding their meaning. The only questions
raised by those requirements are ones of fact – i.e., have particular employees worked the
requisite period of time and percentage of days. In its brief, the Respondent essentially
concedes that at least some of the employees had unused accrued leave as of May 31, 2003.
Brief of Respondent at 20-21. The Union’s calculations showed that 15 of the 18 employees still
had accrued leave left as of May 31, 2003.16

Even if I concluded that there was some issue of contract interpretation regarding the “in
lieu of” provision that made deferral of the vacation leave claims permissible, I would not defer
those claims since they are closely related to the sick leave claims, which do not involve that
provision, are not deferrable, and must be determined by the Board in any case. Moreover, the
Respondent has not even requested deferral of the issues involving the certification releases
sought by Johns and Nagel. When a deferrable issue is closely related to a non-deferrable
issue that must be determined by the Board, there is no compelling reason to defer one aspect
of the dispute to arbitration. Flatbush Manor Care Center, 315 NLRB 15, 20 (1994). The Board
has held that in such circumstances the interests of orderly procedure and fairness to all parties
are served by declining to defer. S.Q.I. Roofing, 271 NLRB 1 fn.3 (1984).

Although the above reasons are sufficient to warrant rejection of the motion to defer, I
also note that the Respondent has not met the deferral criteria of showing there is “no claim of
employer animosity to the employees’ exercise of protected statutory rights.” The General
Counsel has, in fact, claimed that the employer bears animosity towards the employees’
exercise of protected rights, see Complaint at Paragraph 17 and Brief of General Counsel at 28-
29, and, as discussed below, that claim is not without foundation.

The Respondent’s citation of Lawson Co., 291 NLRB 792 (1988), does not alter my view
that deferral would be inappropriate here. In Lawson, the Board deferred a matter to arbitration
after the employer showed that a question of contract interpretation – whether striking
employees were on “voluntary leaves of absence” for purposes of the employer’s vacation leave
practices under the contract -- was central to the claim regarding unpaid leave. As discussed
16 Although the record does not show how much various employees worked during the
periods relevant to their further, post-May 31, 2003, leave accruals, most of those employees
would qualify for additional leave given that 15 of them had more than 1 year of seniority, and,
under the contract, would therefore be entitled to leave on a pro rata basis even if they had not
worked enough to qualify for a full leave allotment. Determining the amount of leave to which
each employee is entitled is appropriately reserved for the compliance phase of this case.

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above, the problems of contract interpretation that the Respondent posits in the instant case
have no bearing on the outcome of the case. Moreover, unlike in Lawson, in the instant case
deferral would be inappropriate because there is a close interrelation between the vacation
leave issues and other issues that are clearly not deferrable, and because there is a claim of
employer animosity to contractual rights.

Accordingly, I deny the Respondent’s motion to defer to arbitration the allegations that
the Respondent denied employees accrued vacation and sick leave pay in violation of Section
8(a)(3) and (1), and Section 8(a)(5) and (1) of the Act.

2. Denial of Accrued Sick and Vacation Leave

I turn now to the merits of the complaint allegations that the Respondent discriminated
against employees in violation of Section 8(a)(3) and (1) and failed to bargain in good faith in
violation of Section 8(a)(5) and (1) by denying employees accrued sick leave and vacation
benefits. As discussed above, the record shows that unit employees had unused, accrued, sick
leave and paid vacation benefits based on services they provided to the Respondent prior to the
contract’s expiration and the lockout. On March 1, 2004, after the Union had tried
unsuccessfully for several months to obtain information from the Respondent that would permit
a calculation of the amount of leave to which employees were entitled, the Respondent
announced its position that employees were not entitled to any paid vacation benefit at all as a
result of the contract’s expiration. Subsequently, the Respondent has not provided employees
with any of their accrued sick leave and paid vacation benefits.

The Respondent’s initial justification for refusing to provide employees with accrued sick
leave and paid vacation benefits was that the contract had expired.17 That rationale is
meritless. With respect to employees’ contractual entitlement to a payout for any accrued sick
leave that they had on March 31, 2003, the argument based on the contract’s expiration is
without any basis whatsoever since the contract had not expired when that benefit became
payable. The argument also fails regarding the other leave claims given clear Board precedent
that an employer generally must “’continue to follow the terms and conditions . . . in an expired
contract until a new agreement is concluded or good-faith bargaining leads to impasse.’” Made
4 Film, Inc., 337 NLRB 1152 (2002), quoting R.E.C. Corp., 296 NLRB 1293 (1989). This
principle has repeatedly been applied to preserve the leave provisions in an expired contract.
Seattle-First National Bank, 270 NLRB 389 (1984); Vesuvius Crucible Company, 252 NLRB
1279, 1282 fn.17 (1980), enf. denied 668 F.2d 162 (3rd Cir. 1981);18 Sargent-Welch Scientific
Co., 208 NLRB 811, 812, 819-21 (1974); Ottawa Silica Company, 197 NLRB 449 (1972). The
Respondent has not offered any precedent showing that an exception to the general rule is
warranted in the instant case, nor has it claimed that a new agreement was concluded or that
impasse was reached at the time it unilaterally discontinued the leave benefits. Therefore, it is
clear that the leave provisions in the expired contract remained in effect subsequent to the
contract’s expiration. This means that the terms of the contract continued to apply not only to
leave that accrued prior to the contract’s expiration, but also to the additional benefits that
employees’ accrued after the contract’s expiration on the basis of their pre-lockout work for the
Respondent.
17 The Respondent made this argument in the March 1 letter and at trial in its written motion
for dismissal or deferral, but does not present the argument again in its brief.
18 The Court of Appeals denied enforcement of the Board’s order in Vesuvius based on the
employer’s interpretation of the contract provisions relating to leave, and did not question that
the leave terms survived the expiration of the contract.

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The Respondent’s conduct in denying employees already-accrued leave benefits is also
not justified by the institution of the lockout itself. In Ottawa Silica Company, 197 NLRB at 449
fn.2, the Board held that an employer violated Section 8(a)(1), (3) and (5) by refusing to award
accrued vacation pay to locked-out employees, even though the lockout itself was lawful.
Similarly, in Sargent-Welch, the Board held that an employer violated Section 8(a)(1) and
Section 8(a)(5) of the Act by withholding employees’ accrued paid vacation leave during a lawful
lockout of employees. 208 NLRB at 819-21. The decision in Sargent-Welch was based on the
application of principles set forth by the Supreme Court in NLRB v. Great Dane Trailers, Inc.,
388 U.S. 26 (1967). Although Great Dane concerned the discontinuation of accrued benefits
during a strike, the Board has held that the same principles apply to cases where an employer
discontinues accrued benefits during a lockout. Central Illinois Public Service Co., 326 NLRB
928, 935 (1998), review denied 215 F.3d 11 (D.C. Cir. 2000), cert. denied 531 U.S. 1051
(2000).19 As explained in Sargent-Welch, the denial of accrued benefits may be shown to be a
violation of Section 8(a)(3) and (1) under Great Dane in one of two ways. First, if the employer’s
conduct is “inherently destructive of important employee rights” no proof of antiunion motivation
is required and a violation may be found even if the employer introduces evidence that the
conduct was motivated by business considerations. Second, if the effect of the employer’s
action is “comparatively slight” an antiunion motivation must be proven and the employer may
defend by showing that it was motivated by legitimate objectives

In this case, I find that the Respondent’s conduct is a violation under either Great Dane
test. First, Board law supports the view that antiunion motivation need not be shown in this
instance because the Respondent’s denial of accrued leave benefits during the lockout was
inherently destructive of important employee rights. In Sargent-Welch, the judge suggested that
the impact of an employer’s decision to withhold, during a lockout, “moneys [employees] had
earned through past services” was “so severe that the Board was free to infer antiunion
motivation for that particular act, regardless of the cogency of the business considerations which
prompted the lockout itself.” 208 NLRB at 820. Similarly, in Wallace Metal Products, Inc., the
Board found that the employer’s denial of employees’ accrued vacation benefits for the duration
of a strike was “inherently destructive of employee interests” so that no showing of
discriminatory motive was necessary. 244 NLRB 41, fn.2 (1979). The Board held that the
employer’s conduct in Wallace Metal violated Section 8(a)(3) and (1), as well as Section 8(a)(5)
of the Act. If anything, the impact of the Respondent’s decision to withhold benefits in the
instant case is more severe than in either Sargent-Welch or Wallace Metal since in those cases
the employer only sought to withhold the benefits until after the labor dispute, whereas in the
instant case the Respondent’s position is that, during the lockout, employees permanently lost
some, and possibly all, of their accrued leave benefits.20
Continued
19 The Respondent suggests that the question of whether leave was denied in violation of
Section 8(a)(3) should be analyzed under the standards set forth in Wright Line, Inc., 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).
However, as indicated by the decision in Central Illinois Public Service Co., 326 NLRB at 935,
the Board has continued, post-Wright Line, to use the Great Dane standards to analyze the
question of whether an employer violates Section 8(a)(3) by denying employees accrued
benefits during a lockout.
20 In Bil-Mar Foods, 286 NLRB 786, 787-88 (1987), the Board found that the employer’s
denial of vacation benefits during a strike was not “inherently destructive” conduct. In that case,
however, the denial of leave was shown to be the result of the employer’s reasonable, and long-
standing, interpretation of its labor contract. As discussed earlier, the Respondent’s denial of
benefits is not justified by any interpretation of the contract. In Bil-Mar, the Board also relied on

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_________________________

The Respondent argues that the impact of the denial is “comparatively slight,” amounting
to only a few days. That assertion is not born out by the facts established by the record. As of
May 31, 2003, 15 of the 18 unit employees had accrued, but unused, leave benefits. These
remaining benefits ranged to as many as 21 days of paid vacation and 3 sick days per
employee. Moreover, employees subsequently accrued additional leave on the basis of their
pre-lockout service. The withholding of these benefits “earned through past services,” was not
“comparatively slight,” especially for employees who were subject to the economic pressures of
a lockout.

Even if I had concluded that the Respondent’s conduct in denying the accrued leave
benefits to employees was not inherently destructive of important employee rights, I would find
that the Respondent violated the Act under the alternate Great Dane test. A review of the
record indicates that the Respondent was withholding benefits on the apparent basis of the
lockout and with antiunion animus. See Central Illinois Public Service, 326 NLRB at 935
(applying the second Great Dane standard, and finding a violation where the employer
discontinued accrued benefits on the “apparent basis of the . . . lockout” and failed to come
forward with a proof of a legitimate justification for the cessation). First, I note that the denial of
benefits took effect at essentially the same time that the lockout began.21 Such timing is an
important factor in assessing discriminatory motivation and in this case shows a link between
the denial of benefits and the lockout. See, e.g., Detroit Paneling Systems, Inc., 330 NLRB 1170
(2000); Bethlehem Temple Learning Center, 330 NLRB 1177, 1178 (2000); American Wire
the fact that the employer had no ongoing collective bargaining relationship that could be
hindered by the withholding of benefits. In the instant case, the existence of a bargaining
relationship between the Respondent and the Union has not been questioned. Third, the
employer in Bil-Mar, unlike the Respondent in the instant case, was only withholding employees’
accrued benefits for the duration of the strike, not denying them permanently. For these
reasons, I conclude that the Respondent’s conduct constitutes a far greater insult to important
employee rights under Section 7 of the Act than did the employer’s conduct in Bil-Mar.
My conclusion is also not changed by consideration of the decision in Nuclear Fuel
Services, 290 NLRB 309 (1988). In that case the Board found that it was not inherently
destructive to refuse to provide employees with vacation pay during a strike. That ruling,
however, was based on the conclusion that the employees had not actually accrued the
vacation benefits they were denied. In the instant case, by contrast, employees had accrued
significant amounts of leave based on services they rendered to the Respondent prior to the
lockout, but were denied those benefits. In Nuclear Fuel, the Board also stated that the
employer could lawfully refuse to provide vacation benefits to the strikers because the contract
did not provide for vacation pay in lieu of vacation, but rather for “vacation only in between
periods of active work.” Id. at 309-310 and fn.7. Unlike in Nuclear Fuel, the vacation leave
provision in this case does not require that the employees be actively at work immediately prior
to the use of paid vacation leave. Moreover, as has been discussed previously, the Respondent
did not deny employees vacation pay in lieu of vacation, but rather took the position that
employees were not entitled to any paid vacation time. Lastly, in Nuclear Fuel, the employer
told the employees that the vacation benefits would be available after the strike concluded. 290
NLRB at 312. In the instant case, the Respondent’s position is that previously accrued leave
benefits have been permanently forfeited during the lockout. Because of the differences
between the material facts of this case and Nuclear Fuel, I conclude that the Board’s decision in
that case is inapposite.
21 Although the Respondent did not announce that it was withholding leave benefits until
some time later, it did not provide any such benefits after the institution of the lockout.

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Products, 313 NLRB 989, 994 (1994). Moreover, although the Respondent has at times
attempted to explain the denial of some of the leave benefits at issue by reference to the
contract’s expiration, which occurred at the same time that the lockout began, the Respondent
has offered no justification at all for its decision to deny the locked-out employees the sick leave
compensation that became payable on May 31, 2003, prior to the contract’s expiration. In the
absence of any other explanation, I conclude that the Respondent’s flagrant refusal during the
lockout to provide that contractually required sick leave payout shows that the Respondent was
withholding those, and other, leave benefits on the basis of the lockout. Moreover, the record
does not show that the Respondent ever refused to allow employees to use their accrued leave
benefits during periods when employees’ services were not desired by the Respondent for
reasons other than a lockout –- e.g., when there was insufficient work.

An antiunion motivation is also revealed by the Respondent’s repeated assertions that
the certification releases and leave benefits that employees desired were available when
employees resigned their bargaining-unit employment. The resignations that the Respondent
was encouraging would not only have deprived the employees of their rights as members of the
bargaining unit, but would also have depleted the Union’s strength. The Respondent continued
to use denial of the certification releases as a means of pressuring employees to resign their
bargaining-unit employment even after SIRVA informed the Company that certification releases
could be issued for locked-out drivers who remained employees of the Respondent. Additional
reason to suspect anti-union animus is provided by the Respondent’s conduct in falsely
reporting that Johns and Nagel, both of whom openly participated in the Union picket line, had
failed to supply log entries for work performed on behalf of the Respondent. By making these
false reports the Respondent interfered with the efforts of Johns and Nagel to obtain work
during the lockout. The record suggests that it was unusual for such mistakes to be made in the
moving industry, and the Respondent does not explain how it came to make the mistakes with
respect to both of the employees on whose behalf certification releases had been sought. This
record leads me to conclude that, when opportunities arose, the Respondent attempted to
interfere with the ability of employees to obtain alternative means of economic support during
the lockout in hopes of weakening those employees’ support for the Union and/or forcing them
to resign from the bargaining unit.22

I also conclude that the Respondent has failed to meet its responsive burden of proving
that it was motivated by legitimate objectives. As has already been discussed, the Respondent
has not offered, much less proven, that it had any legitimate motive for denying employees the
sick leave payout that they became entitled to on May 31, 2003. With respect to the other leave
benefits, the Respondent has offered various justifications, none of which are supported. As
discussed above, a justification that the Respondent initially offered for denying the employees
accrued leave benefits during the lockout was that the contract had expired. Board law
establishes, however, that the Respondent was obligated to continue the leave provisions in
effect during the hiatus between contracts, absent a bargaining impasse. The Respondent has
not cited any authority which it claims gave it reason to believe that the clear Board precedent
on this point did not apply here.

The Respondent also claims that it was privileged to deny the leave benefits based on a
reasonable interpretation of the contract section which states that employees cannot take
vacation pay “in lieu of” paid vacation. See Bil-Mar Foods, 286 NLRB at 788 (no violation when
22 An employer’s desire to avoid funding employees during a lockout is not a legitimate
business justification for discontinuing benefits that employees earned through their pre-lockout
work. Sargent-Welch, 208 NLRB at 819 and 820.

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employer withholds vacation benefits on “a nondiscriminatory, reasonable, and arguably correct
interpretation of the contract”). I note, first, that the provision cited by the Respondent applies
only to vacation leave. The Respondent has not even claimed that this provision permitted it to
deny accrued sick leave to employees. At any rate, the Respondent’s reliance on the “in lieu of”
language is a red herring even with respect to the denial of vacation benefits because the
Respondent denied employees paid vacation leave and the vacation pay that accompanies it,
not vacation pay “in lieu of” vacation. Therefore, the Respondent’s denial of employees’
accrued paid vacation benefit cannot be justified by reference to the “in lieu of” provision.

For the reasons stated above, I conclude that, under Great Dane, and the Board’s
decisions applying that decision, the Respondent violated Section 8(a)(3) and (1) by
discontinuing employees’ paid vacation and sick leave benefits during the lockout.

I also conclude that the denial of the employees’ accrued vacation and sick leave
benefits was a unilateral change in the established terms and conditions of employment and a
violation of Section 8(a)(5) and (1). See Wallace Metal, 244 NLRB at 48; Sargent-Welch, 208
NLRB at 821; Ottawa Silica, 197 NLRB at 449 and 459. The Respondent contends that it met
its obligation to bargain by offering the Union the opportunity to discuss the matter during the
negotiations for a new contract. The Respondent did make such offers to the Union, but it is not
good faith bargaining to require a Union to negotiate in order to receive previously bargained-for
benefits that employees are already owed. Id. Moreover, as discussed above, the Respondent
was required to continue to abide by the leave provisions of the expired contract until the parties
reached a new contract or impasse. See Made 4 Film, Inc., 337 NLRB at 1152. Therefore, even
assuming that employees’ already-earned benefits were a legitimate subject in the negotiations
for a new contract, the Respondent acted unlawfully by unilaterally changing those entitlements
at a time when the parties had not reached a new contract or impasse. See, e.g., Ottawa
Silica, 197 NLRB at 449 (employer violates Section 8(a)(5) by its “unilateral refusal to award
holiday and vacation pay to the locked-out employees until after the parties had completed
negotiations on a new collective-bargaining agreement”).

3. Refusal to Provide Certification Releases

The General Counsel also alleges that the Respondent violated Section 8(a)(3) and (1)
by discriminatorily refusing to issue the certification releases that Johns and Nagel needed in
order to perform certified work with other movers operating under the SIRVA umbrella. The
record in this case shows that the Respondent refused to execute the certification releases, and
repeatedly told the Union that it would execute the releases if the employees resigned from their
bargaining-unit employment. In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), approved in NLRB v. Transportation Corp.,
462 U.S. 393 (1983), the Board set forth standards for determining whether an employer has
discriminated against an employee on the basis of union or protected activity. Under the Wright
Line standards, the General Counsel bears the initial burden of showing that the Respondent’s
actions were motivated, at least in part, by anti-union considerations. The General Counsel
may meet this burden by showing that: (1) the employee engaged in union or other protected
activity, (2) the employer knew of such activities, and (3) the employer harbored animosity
towards the Union or union activity. Senior Citizens Coordinating Council, 330 NLRB 1100,
1105 (2000); Regal Recycling, Inc., 329 NLRB 355, 356 (1999). If the General Counsel
establishes discriminatory motive, the burden shifts to the employer to demonstrate that it would
have taken the same action absent the protected conduct. Senior Citizens, 330 NLRB at 1105.
The Respondent cannot meet its Wright Line burden merely by showing that a legitimate reason
factored into its decision. Rather, the Respondent must show that the legitimate reason would

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have resulted in the same action even in the absence of the employee’s union and protected
activities. Monroe Manufacturing, 323 NLRB 24, 27 (1997).

The evidence satisfies the General Counsel’s initial burden in this case. Both Johns and
Nagel openly attended the picket line that unit employees formed outside the Respondent’s
facility after being locked out by the Respondent. As discussed above, the Respondent had
demonstrated animosity towards protected activity by, inter alia, unlawfully withholding leave
benefits that employees were entitled to during the lockout. The Respondent’s repeated
statements that it would issue the certification releases to locked-out employees if they resigned
their bargaining-unit employment evidences that the antiunion animus is linked to the conduct
alleged to violate the Act.

Since the evidence satisfies the General Counsel’s burden of showing that the
Respondent’s actions were motivated, at least in part, by anti-union considerations, the burden
shifts to the Respondent under Wright Line, supra, to show that it would have taken the same
actions even in the absence of the unlawful animus. See Senior Citizens, 330 NLRB at 1105.

The Respondent argues that its refusal to issue the certification releases for Johns and
Nagel is explained not by any improper animus, but by the company’s practice of releasing an
individual from his or certification only when that individual’s employment ended. The record
shows that SIRVA and NAVL did generally prohibit certified drivers with one affiliated mover
from starting work as a certified driver with another affiliated mover unless the employee’s
employment with the first company had ended. The Respondent’s practice consistent with
these rules was to issue certification releases only for individuals whose employment with it had
ended. Nevertheless, I conclude, based on the totality of the evidence, that the Respondent
would not have applied its practice to refuse the releases under the circumstances present here
if not for the unlawful motivation. The record shows that the responsible SIRVA official informed
the Respondent that, given the labor dispute, SIRVA would permit the Respondent to release
the drivers from their certification even if those drivers remained employees of the Respondent.
When the Respondent refused that option, the same SIRVA official offered another solution –
SIRVA would permit the employees to be “cross-certified” with the Respondent and the other
employers with whom they were seeking employment during the lockout. The Respondent
rejected that solution as well. SIRVA was the parent company of the van line with which the
Respondent was affiliated for purposes of the certification of drivers and certified work. SIRVA
and NAVL, not the Respondent, were the entities that evaluated whether a driver should be
certified and issued the safety number that established the driver’s certification. The
Respondent’s certification releases were only required for employment by other SIRVA-affiliated
companies. Given this background, I find it hard to believe that the Respondent would not have
responded favorably to SIRVA’s offers to accommodate the locked-out drivers if not for the
Respondent’s unlawful motivation. Indeed, when SIRVA made the dual-certification proposal,
Squire explicitly complained that the drivers were trying to “stay in the union at [the
Respondent].” Even after SIRVA gave the Respondent the go-ahead to issue the certification
releases for drivers who remained employees, the Respondent continued to represent to the
Union that such releases could not be issued unless the driver resigned.

The Respondent’s claim that it would have taken the same actions based exclusively on
legitimate motives is further undermined by the false reports that the Respondent made
regarding missing log entries for Johns and Nagel. The Respondent claims that these were
mistakes, but additional explanation is called for since such mistakes were uncommon and the
Respondent made the same “mistake” with respect to both of the locked-out employees who
needed releases. The Respondent has provided no additional information to explain this unlikely
occurrence. As discussed above, the Respondent’s unlawful denial of the employees’ earned

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leave, the denial of the releases, and the false reports regarding employees’ logs evidence a
pattern of interference with the efforts of the unit employees to find ways to endure the lockout
without resigning their bargaining-unit employment. That is not a legitimate business purpose,
but unlawful discrimination. See Sargent-Welch, 208 NLRB at 819 and 820 (employer’s desire
to avoid financing a lockout is not a legitimate basis for denying employees benefits earned
through pre-lockout service); see also Christie Electric 284 NLRB 740, 759 (1987) (respondent’s
statement that employees could not take positions with other employers during a strike and
maintain their status as employees of respondent violated the Act since it interfered with
employees’ “right to obtain interim employment as a means of enduring the strike”).

The Respondent also claims that it withheld the releases out of fear that the Union would
charge that issuing the releases was an unfair labor practice. I consider this claim implausible
given that SIRVA had informed the Respondent that it could issue the releases for locked-out
drivers without terminating those drivers from their bargaining-unit positions. Therefore, the only
apparent effect of the releases would be to ease the economic pressure that the lockout was
placing on the locked-out employees. The Respondent has not claimed that the Union ever
suggested that it would object to that, or even posited a reason why the Union might object.

For the reasons discussed above, I find that the Respondent violated Section 8(a)(3)
and (1) by discriminatorily withholding the certification releases that Johns and Nagel needed in
order to obtain certified work with other SIRVA-affiliated movers.

Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5).

3. The Respondent violated Section 8(a)(3) and (1) by discriminatorily discontinuing
employees’ paid vacation and sick leave benefits and by discriminatorily withholding certification
releases for Timothy Johns and John Nagel.

4. The Respondent violated Section 8(a)(5) and (1) by unilaterally discontinuing
employees’ paid vacation and sick leave benefits.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. With respect to the denial of sick leave benefits, the
Respondent must provide employees with the payments for any unused sick leave they had on
May 31, 2003, and for any additional unused sick leave23 they had on May 31, 2004. With
respect to vacation leave, the Respondent must provide employees with the vacation pay that,
under the expired contract, would have accompanied the employees’ use of their accrued
vacation leave if the Respondent had not unlawfully denied employees the use of such leave
during the lockout. This includes vacation pay for all accrued vacation leave that employees had
remaining on December 22, 2003, when the Union requested such leave on behalf of
23 As discussed above, qualifying employees acquired a new allotment of sick leave on June
1, 2003.

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employees. The Respondent also must provide employees with vacation leave pay for
additional paid vacation leave that employees accrued on their anniversary dates after
December 22, 2003, but which they earned on the basis of their pre-lockout service.
Employees who reached anniversary dates after the start of the lockout, but prior to the Union’s
request of December 22, 2003, are not entitled to receive vacation pay for any portion of the
vacation leave allotment that they accrued at their previous anniversary date, but had not used
during the succeeding 12 months, since under the Respondent’s established practices that
leave expired. That limitation will not apply if, during the compliance stage, it is shown that a
request was made for the employee’s remaining accrued vacation benefit prior to the expiration
of that leave. The Respondent must also make Timothy Johns and John Nagel whole for any
loss of wages and benefits that they may have suffered as a result of the Respondent’s unlawful
refusal to provide the necessary certification releases. Interest on all of the above payments
should be paid as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

In addition to requiring the Respondent to post notice, I will require it to mail copies of
the notice at its own expense to all employees who were members of the bargaining unit on
May 31, 2004. Mailed notice is necessary because the Respondent has not permitted those
employees to enter the facility where notice is to be posted.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.24

ORDER

The Respondent, University Moving & Storage Co., Farmington Hills, Michigan, , its
officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discriminatorily discontinuing unit employees’ paid vacation and sick leave benefits.

(b) Failing and refusing to bargain collectively and in good faith with the Union by
unilaterally discontinuing unit employees’ paid vacation and sick leave benefits.

(c) Discriminatorily withholding certification releases for employees, or discriminatorily
delaying their issuance.

(d) In any like or related manner interfering with, restraining, 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) Make whole all unit employees and former unit employees for the unlawful denial of
sick leave benefits by providing them with the sick leave payments they were entitled to under
the expired contract in the manner set forth in the remedy section of this decision.

24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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(b) Make whole all unit employees and former unit employees for the denial of vacation
leave benefits by providing them with the vacation pay that, under the expired contract, would
have accompanied the employees’ use of their accrued vacation leave if the Respondent had
not unlawfully denied the use of such leave, in the manner set forth in the remedy section of this
decision.

(c) Make whole Timothy Johns and John Nagel for any loss of wages and benefits they
may have suffered as a result of the Respondent’s discriminatory withholding of certification
releases for those employees, with interest as set forth in the remedy section of this decision.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of payments due under the terms of this
Order.

(e) Within 14 days after service by the Region, post at its facility in Farmington Hills,
Michigan copies of the attached notice marked “Appendix.”25 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent 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
notices 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 Respondent 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 May 31, 2003.

(f) Within 14 days after service by the Region, mail copies of the attached notice marked
Appendix, at its own expense, to all employees in the bargaining unit who were employed by
the Respondent at its Farmington Hill, Michigan, facility, as of May 31, 2003. The notice shall be
mailed to the last known address of each such employee after being signed by the
Respondent’s authorized representative.

(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C.

____________________
PAUL BOGAS
Administrative Law Judge
25 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.”
JD–70–05
Farmington Hills, MI
APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT discriminatorily discontinue your paid vacation and/or sick leave benefits.

WE WILL NOT fail and refuse to bargain collectively and in good faith with the Union by
unilaterally discontinuing your paid vacation and/or sick leave benefits.

WE WILL NOT discriminatorily withhold or delay issuance of certification releases.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL make all unit employees and former unit employees whole for the unlawful denial of
sick leave benefits by providing them with the sick leave payments they were entitled to under
the expired contract.

WE WILL make all unit employees and former unit employees whole for the denial of vacation
leave benefits by providing them with the vacation pay that, under the expired contract, would
have accompanied the employees’ use of their accrued vacation leave if we had not unlawfully
denied the use of such leave.

JD–70–05
Farmington Hills, MI

WE WILL make Timothy Johns and John Nagel whole for any loss of wages and benefits they
may have suffered as a result of our discriminatory withholding of certification releases for those
employees.

(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.