Utility Vault Company

National Labor Relations Board - Board Decisions

Aug 22, 2005

345 N.L.R.B. 79 (N.L.R.B. 2005)

UTILITY VAULT CO.
345 NLRB No. 4
79
Utility Vault Company, a division of Oldcastle Pre-
cast, Inc. and Wholesale Delivery Drivers, Sales-
persons, Industrial and Allied Workers, Local
848 International Brotherhood of Teamsters.1
Case 31–CA–26812
August 22, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On April 5, 2005, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief, and has decided to affirm the judge’s rulings, find-
ings, and conclusions,2 and to adopt the recommended
Order as modified and set forth in full below.3
ORDER
The Respondent, Utility Vault Company, a division of
Oldcastle Precast, Inc., Fontana, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
Wholesale Delivery Drivers, Salespersons, Industrial and
Allied Workers, Local 848, International Brotherhood of
Teamsters, as the exclusive bargaining representative for

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 We agree with the judge that the Respondent was obligated to bar-
gain with the Union over the implementation of the Dispute Resolution
Process (DRP) agreement, which requires that employees arbitrate
claims involving their terms and conditions of employment, including
wrongful termination and the failure to pay wages and benefits. Be-
cause the arbitration of such claims is a mandatory subject of bargain-
ing, the Respondent’s unilateral implementation of the DRP agreement
violated Sec. 8(a)(5) and (1). See Communication Workers (C & P
Telephone), 280 NLRB 78, 81 (1986), enfd. mem. 818 F.2d 29 (4th Cir.
1987). Further, by requiring individual employees to sign the agree-
ment as a condition of employment, the Respondent engaged in direct
dealing and undermined the Union’s position as the employees’ exclu-
sive bargaining representative. See Dayton Newspapers, 339 NLRB
650, 653 (2003), enfd. in relevant part 402 F.3d 651 (6th Cir. 2005).
Chairman Battista agrees with his colleagues that the Respondent
violated Sec. 8(a)(5), and violated Sec. 8(a)(1) derivatively, by unilat-
erally requiring new employees to sign the DRP agreement as a condi-
tion of employment without bargaining with the Union, and by bypass-
ing the Union. Chairman Battista notes that the judge, affirmed by the
Board, also finds an 8(a)(1) violation based on the asserted requirement
to forgo access to the Board. Chairman Battista finds it unnecessary to
pass on whether the Respondent violated Sec. 8(a)(1) on this basis
because such a finding would have no material effect on the remedy.
3 We have modified the judge’s recommended Order and notice to
more closely conform to the violations found.
the appropriate unit of employees by unilaterally imple-
menting changes in terms and conditions of employment.
(b) Requiring employees to execute waivers of their
rights to take legal action with respect to their hire, ten-
ure, and terms and conditions of employment, to the ex-
tent that such waivers apply to the filing of Board
charges.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, meet and bargain with the Union as the
exclusive representative of the employees in the follow-
ing appropriate unit regarding terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
Included: All production and maintenance work-
ers and truck drivers employed as employees by the
Respondent only with respect to its facilities at
10650 Hemlock [certified by the NLRB in Case 31–
RC–5222] and 10774 Poplar Street, Fontana, Cali-
fornia.
Excluded: Office clerical employees, confiden-
tial employees, technical employees, managerial
employees, professional employees, all other em-
ployees, guards and supervisors as defined in the
Act.
(b) Rescind the unlawfully implemented Dispute Reso-
lution Process agreement and reinstate the terms and
conditions of employment in these areas that existed be-
fore the Respondent’s unlawful unilateral changes.
(c) Within 14 days from the date of this Order, remove
from its files all unlawful waivers of the right to take
legal action executed by its employees, and within 3 days
thereafter, notify in writing each present or former em-
ployee who executed such waiver that this has been done
and that the waiver will not be used in any way.
(d) Within 14 days after service by the Region, post at
its facility in Fontana, California, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD80
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 26, 2004.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with Wholesale Deliv-
ery Drivers, Salespersons, Industrial and Allied Workers,
Local 848, International Brotherhood of Teamsters, as
the exclusive representative of the employees in the bar-
gaining unit by unilaterally implementing terms and con-
ditions of employment.
WE WILL NOT require bargaining unit employees to
execute waivers of their rights to take legal action with
respect to their hire, tenure, and terms and conditions of
employment, to the extent that such waivers apply to the
filing of Board charges.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the ap-
propriate bargaining unit:
Included: All production and maintenance work-
ers and truck drivers employed as employees by us
only with respect to our facilities at 10650 Hemlock
[certified by the NLRB in Case 31–RC–5222] and
10774 Poplar Street, Fontana, California.
Excluded: Office clerical employees, confidential
employees, technical employees, managerial em-
ployees, professional employees, all other employ-
ees, guards and supervisors as defined in the Act.
WE WILL rescind the unlawfully implemented Dispute
Resolution Process agreement and reinstate the terms and
conditions of employment in these areas that existed be-
fore we made the unlawful unilateral changes.
WE WILL, within 14 days from the date of this Order,
remove from our files all unlawful waivers of the right to
take legal action executed by our employees, and within
3 days thereafter, notify in writing each present or former
employee who executed such waiver that this has been
done and that the waiver will not be used in any way.
UTILITY VAULT CO., A DIVISION OF OLDCASTLE
PRECAST, INC.
Ernesto J. Fong, Esq., for the General Counsel.
Dian S. Rubanoff, Esq. (Williams, Zografos & Peck), Lake
Oswego, Oregon, for Respondent.
Rachael Aguirre, Esq. (Wohlner, Kaplon, Phillips, Young &
Cutler), Sherman Oaks, California, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. On May 12,
2004, Wholesale Delivery Drivers, Salespersons, Industrial and
Allied Workers, Local 848, International Brotherhood of Team-
sters, AFL–CIO (the Union) filed the charge in this case against
Utility Vault Company, a division of Oldcastle Precast, Inc.
(Respondent or the Employer). On December 16, 2004, the
Regional Director for Region 31 of the National Labor Rela-
tions Board (the Board) issued a complaint against Respondent.
The complaint alleges that Respondent violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) by failing
and refusing to bargain with the Union and by requiring new
employees, as a condition of employment, to sign an arbitration
agreement, without notice to, or bargaining with, the Union.
The Respondent filed a timely answer in which it denied that it
had violated the Act. On February 10, 2005, before the sched-
uled hearing in this case commenced, the parties jointly waived
a hearing and agreed to have the case decided on the basis of a
stipulated record.
Based on the stipulated record submitted by the parties, and
after considering the briefs, I make the following findings of
fact and conclusions of law.
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
At all times material, Respondent has been an assumed busi-
ness name of Oldcastle Precast, Inc., a Washington corporation,
operating in the State of California and engaged in the manu-
UTILITY VAULT CO. 81
facturing of concrete products, with a principal place of busi-
ness in Auburn, Washington. Respondent operates various
plants in the State of California, including the two facilities in
Fontana, California, at issue in this case.
Respondent, in conducting its business operations described
above, during the past calendar year, purchased and received
goods at various facilities in California valued in excess of
$50,000 directly from sources outside the State of California.
Further, during the same time period, Respondent derived gross
revenues in excess of $50,000. Accordingly, the parties stipu-
lated and I find, Respondent is an employer engaged in com-
merce within the meaning of Sections 2(2), (6), and (7) of the
Act.
The parties stipulated that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. FACTS
Since at least 1991, the Union has been the exclusive collec-
tive-bargaining representative of an appropriate unit of Re-
spondent’s employees in Fontana, California. The most recent
collective-bargaining agreement between the parties is effective
by its terms from April 10, 2003, through March 31, 2006. The
bargaining unit covered by the agreement is:
Included: All production and maintenance workers and
truck drivers employed as employees by the Respondent
only with respect to its facilities at 10650 Hemlock (certi-
fied by the NLRB in Case 31–RC–5222) and 10774 Poplar
Street, Fontana, California.1
Excluded: Office clerical employees, confidential em-
ployees, technical employees, managerial employees, pro-
fessional employees, all other employees, guards and su-
pervisors as defined in the Act.
From January through April 2003, Respondent and the Un-
ion engaged in collective bargaining. The negotiations con-
cluded with the ratification of the parties’ current collective-
bargaining agreement, which covers the period from April 10,
2003, through March 31, 2006. The final collective-bargaining
agreement did not include a provision for Dispute Resolution
Process (DRP). The parties stipulated that the “Respondent’s
last and final offer for a collective-bargaining agreement did
not include a DRP proposal.”
On April 26, 2004, the Union obtained a copy of a memo-
randum that Respondent was providing to new employees enti-
tled “DRP of Oldcastle Precast, Inc.” That memorandum re-
quired new hires to sign, as a condition of employment, a “fair
and final arbitration” agreement. Under the arbitration agree-
ment a new employee agrees “that all disputes between [the
employee and Oldcastle] will be resolved in a fair and final
arbitration before an abitrator, and that [the employee is] giving
up [his or her] rights to have those disputes resolved in court by
a jury.” The Union learned in May 2004 that Respondent had
implemented the DRP in July or August 2003. However, Re-
spondent had not hired any new employees at its Fontana facili-
ties until 2004. In May 2004, the Union and Respondent met

1 The 10774 Poplar Street location, which is part of the bargaining
unit, was first included in the unit on or about 2000.
and conferred regarding the DRP. At this meeting Respondent
made it clear that the DRP only applied to new employees and
“that it did not give notice to the Union about the implementa-
tion of the DRP because it did not occur to Respondent.” The
Union replied that the implementation of the DRP violated the
rights of newly hired bargaining unit employees. Thereafter, on
May 12, 2004, the Union filed the instant unfair labor practice
charge.
The parties stipulated that as of the filing of the charge, Re-
spondent had required at least seven newly hired bargaining
unit employees to sign an arbitration agreement under the DRP.
The parties stated the legal issues as follows:
Whether Respondent’s unilateral implementation of the DRP
(arbitration agreement) in this case violates Section 8(a)(1) and
(5) of Act; and whether the individual arbitration agreement
involved in this case independently violates Section 8(a)(1) of
the Act.
The DPR at issue herein contains the following language re-
garding coverage of the Agreement:
You and Oldcastle expressly agree to arbitrate any past, pre-
sent or future legal claims between you, except for the claims
expressly excluded below. The legal claims that must be arbi-
trated under this Agreement expressly include, but are not
limited to, claims for:
• Breach of a contract, agreement, or promise (except a
union contract);
• Failure to pay wages, or to provide compensation or
benefits;
• Unlawful discrimination or harassment, including dis-
crimination or harassment based on age, sex, race, na-
tional origin, marital status, sexual orientation, physical
or mental disability, or on-the-job injury;
• Retaliation for complaining or testifying about unlawful
practices;
• Wrongful termination of employment;
• Violation of laws governing medical leave or other em-
ployment-related rights;
• Negligence, misrepresentation, infliction of emotional
distress, or ) other tortuous conduct; and
• A right to attorney fees, penalties or punitive damages.
By signing this Agreement, you and Oldcastle expressly agree
that such claims shall not be filed or pursued in court, and that
you are forever giving up the right to have those claims decided
by a jury. If a covered claim is filed in court by you or Oldcas-
tle, the other party shall be entitled to have that action dis-
missed by the court.
This agreement does not apply to:
• Claims for workers’ compensation benefits:
• Claims for unemployment compensation benefits;
or
• Claims that are subject to a union contract.
Further, the DRP provides, “Note: If you have filed a complaint
with the EEOC or the Oregon Bureau of Labor, you and Old-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD82
castle may mutually agree to wait and submit the request for
arbitration after the agency has completed its investigation.”
The 2003-2006 collective-bargaining agreement does contain
a grievance procedure. The final stage of the contract grievance
procedure provides for arbitration. The DRP excludes claims
for breach of a union contract. Under the collective-bargaining
agreement:
Grievances shall be limited to matters concerning the provi-
sions of this Agreement. A “grievance” as that term is used in
this Agreement means a claim by the employee or employees
that the terms of this agreement have been violated, or a ques-
tion concerning the proper application or interpretation of the
Agreement. Neither the Union nor an employee shall use or
attempt to use the Grievance Procedure as a means of chang-
ing, amending, modifying, supplementing or otherwise alter-
ing in any respect whatsoever this Agreement or any part
thereof.
III. CONCLUSIONS
1. The independent 8(a)(1) violation
Employer attempts to limit or bar the exercise of statutory
rights, particularly those of individual employees as distin-
guished from those of their agents, have been held unlawful.
See Athey Products Corp., 303 NLRB 92, 96 (1991); Isla Verde
Hotel Corp., 259 NLRB 496 (1981), enfd. 702 F.2d 268 (1st
Cir. 1981); and Reichhold Chemicals, 288 NLRB 69 (1988).
The Board has regularly held that an employer violates the Act
when it insists that employees waive their statutory right to file
charges with the Board or to invoke their contractual grievance-
arbitration procedure. Athey Products, supra; see Kinder-Care
Learning Centers, 299 NLRB 1171, 1172 (1990); and Retlaw
Broadcasting Co., 310 NLRB 984 (1993). Respondent’s man-
datory arbitration provision covers all disputes relating to or
arising out of an employee’s employment with Respondent.
Claims covered include wrongful termination, employment
discrimination and claims recognized by federal laws or regula-
tions. Further, claims “for retaliation for complaining or testify-
ing about unlawful practices” must be arbitrated. The agree-
ment does not provide an exception for the employees’ statu-
tory right to file charges with the Board. Thus, I find that this
policy reasonably tends to inhibit employees from filing
charges with the Board, and, therefore, restrains the employees’
Section 7 rights to engage in concerted activities for collective
bargaining or other mutual aid or protection.
Respondent contends that the DRP was not intended to re-
strict the rights of employees to file charges. However, there is
no evidence of bargaining or the intent of the “parties.” The
agreement was imposed on employees as a condition of em-
ployment. While the DPR notes that employees may file com-
plaints with the EEOC or the Oregon Bureau of Labor, there is
no similar note or exception for the filing of charges with the
NLRB. The fact that three exceptions are stated and the ability
to file with the EEOC is clarified would lead to an inference
that there are no other exceptions to the DRP. Thus, a reason-
able inference exists that NLRB charges are covered by this
DPR agreement. Respondent could easily cure this problem by
including the right to file charges in the listed exceptions to the
DRP or including a notice that an employee has not waived his
right to file charges with the NLRB.
2. The unilateral implementation
Section 8(a)(5) and (d) require an employer to bargain in
good faith with its employees’ representative concerning
wages, hours, and other terms and conditions of employment of
bargaining unit employees. It is well settled that unilateral ac-
tion by an employer without prior discussion with the union
amounts to a refusal to negotiate about the effected conditions
of employment. NLRB v. Katz, 369 U.S. 736 (1962). It is well
settled that unilateral action by an employer without prior dis-
cussion with the union amounts to a refusal to negotiate about
the effected conditions of employment. Katz, supra, 369 U.S.
736. Moreover, a showing of subjective bad faith on the em-
ployer’s part is unnecessary to establish a violation. Id. at 747.
An employer wishing to change terms and conditions of em-
ployment not embodied in a collective-bargaining agreement is
required to notify the bargaining representative in advance of
implementing the change, to provide the opportunity to bargain
over the change, if the union has not waived its right to bargain.
Thus, in the absence of a union’s waiver of the right to bargain,
an employer’s failure to notify the union or afford it the oppor-
tunity to bargain before changing unit employees’ terms and
conditions of employment violates Section 8(a)(5). Postal Ser-
vice, 308 NLRB 1305 (1992). However, this rule is applicable
only when the contemplated change involves the terms and
conditions of employment of bargaining unit employees. Thus,
when an employer makes decisions involving the interests of
individuals outside the bargaining unit, the Board will not find
an 8(a)(5) violation if the employer fails to notify the union in
advance of implementation unless the “third-party concern . . .
vitally affects the ‘ terms and conditions’ of [bargaining unit
employees’] employment.” Star Tribune, 295 NLRB 543
(1989). Similarly, an employer’s changes in hiring practices
generally fall into the class of business decisions affecting indi-
viduals outside the bargaining unit over which an employer is
not obligated to bargain with the union. Id.
In Star Tribune, supra, the Board held that the employer did
not need to bargain with the union about implementing a one-
time drug test for applicants for bargaining unit positions. The
Board held that the policies of the Act were adequately served
by allowing employers to choose their nondiscriminatory hiring
practices subject to a bargaining obligation, if the union de-
mands bargaining over aspects of the practices that the union
has an objective basis for believing may discriminate against
protected groups, or otherwise vitally affect unit employees’
terms and conditions of employment. Thus, the Board in Star
Tribune, acknowledged that some decisions respecting hiring
policies could “vitally affect” the terms and conditions of em-
ployment of unit employees. In the instant case, the DRP
agreement was not a one-time process for applicants. First, by
the conditions imposed by Respondent, an employee would be
discharged if the employee did not sign a DRP agreement by
his third day of employment. Thus, the DRP by its terms ap-
plies to newly hired employees already on the payroll. More
importantly, the DRP agreement continued to apply to employ-
ees throughout their employment with Respondent and even
UTILITY VAULT CO. 83
after severance of their employment. The DRP agreement ap-
plies to an employee’s past, present, and future claims. Accord-
ingly, I find that the instant DRP does vitally affect the terms
and conditions of bargaining unit employees who have been
required to execute such an agreement.
A unilateral change in a mandatory subject of bargaining is
unlawful only if it is “material, substantial, and significant.”
Register-Guard, 339 NLRB 353 (2003); Flambeau Airmold
Corp., 334 NLRB 165 (2001), modified on other grounds 337
NLRB 1025 (2002) (quoting Alamo Cement Co., 281 NLRB
737, 738 (1986)). I find the DRP meets this standard because
Respondent has unilaterally, and without notice to, or bargain-
ing with the Union, waived the employees’ right to file charges
with the Board. Further, the arbitration provisions of the DRP
are broader than the arbitration provision agreed to by the Un-
ion.
In this case, there has been unilateral action by Respondent
without prior discussion with the Union, which amounts to a
refusal to bargain about the effected conditions of employment.
In such cases, the Board looks to whether a change has been
implemented in conditions of employment. It simply deter-
mines whether a change in any term and condition of employ-
ment has been effectuated, without first bargaining to impasse
or agreement and condemns the conduct if it has. Daily News
of Los Angeles, 315 NLRB 1236 (1994), remanded 979 F.2d
1571 (D.C. Cir. 1992), decision supplemented 315 NLRB 1236
(1994), enfd. 73 F.3d 406 (1996), cert. denied 519 U.S. 1090
(1997).
Respondent contends that the DPR is not a mandatory sub-
ject of employment. In Borden, Inc., 279 NLRB 396 (1986), the
Board held that whether a release used to waive employees’
rights to sue was a mandatory subject of bargaining depended
on whether the release, exhibited independence with mandatory
subjects of bargaining. In that case, the employer insisted on a
general release of all future claims by employees during bar-
gaining over severance pay during shut down negotiations. The
Board concluded that there was not a sufficient nexus or inter-
dependence between severance pay and the general release,
given that the release was not part of the employer’s initial
severance pay proposal and that it was not added as a quid pro
quo for any union concession. Thus, the Board held that the
nonmandatory subject of the release and mandatory subject of
severance pay were not “inextricably intertwined,” and there-
fore the release was not a mandatory subject of bargaining.
More recently, in Regal Cinemas, Inc., 334 NLRB 304
(2001),2 the Board found that a release linked to claims arising
out of permanent layoffs was proposed as a quid pro quo for
severance pay, and was therefore so intertwined with the man-
datory subject of severance pay that the release became a man-
datory subject of bargaining. The Board distinguished the gen-
eral release of all claims in Borden, supra, concluding, “In this
situation, bargaining over such a specific release and bargaining
over severance go hand in hand.”
The guiding principle is that a mandatory subject and non-
mandatory subject can become so intertwined that there is an
obligation to bargain over the ostensibly nonmandatory subject.

2 Enfd. 317 F.3d 300 (D.C. Cir. 2003).
Id. at 305. The DRP in this case is much broader than the arbi-
tration agreement in the collective-bargaining agreement. The
grievance and arbitration provisions of the collective-
bargaining agreement are limited to claims that the terms of
bargaining agreement were violated, or questions concerning
the proper application or interpretation of the bargaining
agreement. However, the DRP covers all claims arising out of
the employment relationship including claims that are not cov-
ered by the collective-bargaining agreement’s grievance and
arbitration procedure.3 The DRP covers failure to pay wages or
benefits, negligence, tort claims, and wrongful termination, all
of which are mandatory subjects of bargaining. Whether these
mandatory subjects should be resolved by arbitration is a matter
for collective bargaining. However, Respondent did not pro-
pose the DRP in its collective bargaining with the Union.
Moreover, an employee who does not sign the DRP within
three days of hire is subject to termination. It is well established
that work rules that can be grounds for discipline are mandatory
subjects of bargaining. King Soopers, Inc., 340 NLRB 628
(2003); Praxair, Inc., 317 NLRB 435, 436 (1995). Respondent
did not bargain over this condition of employment; treating it as
a condition of hire. However, the discharge of newly hired
employees is a mandatory subject of bargaining.4 Finally, as
found above Respondent unilaterally imposed an implied
waiver of employees’ rights to file charges with the Board.
Accordingly, I find that the dispute resolution process policy
(DRP) vitally affected the terms and conditions of employment
of certain bargaining unit employees and that the Union did not
waive its right to bargain over this policy. Accordingly, it fol-
lows that the Respondent’s implementation of these changes in
employment conditions without giving the Union prior notice
and an opportunity to bargain violated Section 8(a)(5) and (1)
of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act, by unilaterally implement-
ing changes in terms and conditions of employment.
4. By requiring employees to execute waivers of their rights
to take legal action with respect to their hire, tenure, and terms
and conditions of employment, and thereby requiring a waiver
of the right to file NLRB charges, Respondent violated Section
8(a)(1) of the Act.

3 Moreover, the grievance and arbitration procedure agreed to by the
Union is for the term of the contract. However, the DRP imposed on
employees survives the collective-bargaining agreement and is effec-
tive perpetually.
4 See Lockheed Shipbuilding Co., 273 NLRB 171 (1984) (the Board
found that an employer violated Sec. 8(a)(5) by unilaterally implement-
ing new medical screening tests “for the purpose of terminating new
employees or refusing to hire applicants for employment”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD84
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, I shall recommend that it be ordered
to cease-and-desist, to meet and bargain on request with the
Union, and, if an understanding is reached, to embody the un-
derstanding in a signed agreement. Further, Respondent shall, if
requested to do so by the Union, rescind the unlawful unilateral
change, and to reinstate the terms and conditions of employ-
ment that existed before the unilateral change.
Respondent must remove from its files all unlawful DRP
agreements executed by bargaining unit employees of Respon-
dent and notify, in writing, each present or former employee
who executed such waiver that this has been done and that the
waiver would not be used in any way.
[Recommended Order omitted from publication.]