Adair Standish Corp.

National Labor Relations Board - Board Decisions

Jul 12, 1989

295 N.L.R.B. 985 (N.L.R.B. 1989)

ADAIR STANDISH CORP. 985
Adair Standish Corporation and Flint Local 282-C,
Graphic Communications International Union,
AFL-CIO. Case 7-CA-27716(2)
July 12, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 16, 1989, Administrative Law Judge
Stephen J. Gross issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Adair
Standish Corporation, Standish, Michigan, its offi-
cers, agents, successors, and assigns , shall take the
action set forth in the Order.
' No exceptions were filed to the judge' s dismissal of the allegation
that the Respondent violated Sec. 8(a)(5) and (1) of the Act by unilateral-
ly instituting a uniform practice of requesting employees to submit doc-
tors' certifications when they are absent from work because of illness.
Ellen Rosenthal, Esq., for the General Counsel.
Francis T. Coleman, Esq. (Keck, Mahin & Cate), of Wash-
ington, D.C., for the Respondent.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The
Respondent, Adair Standish Corporation, is in the print-
ing business . Respondent has several plants . But the only
one of its plants we are concerned with here is its facility
in Standish , Michigan.
According to the General Counsel: (1) in February
and March 1988 Respondent unilaterally laid off some of
the employees it employs in its Standish plant without
giving the employees' certified bargaining representative
notice or an opportunity to bargain , thereby violating
Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act); (2) Respondent unilaterally changed its
policy about asking for doctors' notes from employees
who had been absent because of illness, again violating
Section 8(a)(5) and (1); and (3) Respondent' s unilateral
layoff and other unfair labor practices caused and pro-
longed a strike that began in March 1988.
Respondent admits that it is an employer engaged in
commerce , but it denies that it has committed any unfair
labor practices . As for the General Counsel' s allegations
about the strike, Respondent contends that for several
different reasons the question of whether the strike is an
unfair labor practice strike is not properly before me.
A. Background
In a Board-conducted election in August 1985, the
production and maintenance workers at the Standish
plant voted to be represented by Flint Local 282-C,
Graphic Communications International Union, AFL-
CIO (the Union). In May 1986, the Board issued a Deci-
sion and Certification of Representative.'
Respondent , however, contending that the Board
erred in certifying the Union , has at all times refused to
recognize or bargain with the Union . That course of
action has spawned considerable litigation:
7-CA-25973-283 NLRB 668 ( 1987), finding vio-
lations of Section 8(a)(5) and ( 1). (An enforcement
proceeding is pending in the United States Court of
Appeals for the Sixth Circuit.)
7-CA-25059-290 NLRB 317 (1988), finding vio-
lations of Section 8 (a)(3), (5), and (1).
7-CA-26685-292 NLRB 890 (1989) (Adair III)
finding violations of Section 8(a)(5) and (1).
B. The Layoffs
1. The facts
Respondent employs about 16 bargaining unit employ-
ees at its Standish plant . On February 23, 1988, Respond-
ent laid off nine of those employees.2 (Unless specified
otherwise, all the events I refer to in this decision oc-
curred in 1988 .) Respondent recalled the nine employees
on February 24. But on that day and the next they
worked short days. Then, on February 29, Respondent
laid off the nine until mid -March.
The reason Respondent laid off employees was that it
had insufficient work to keep all of its employees work-
ing. Respondent selected which employees to lay off the
same way it has always selected employees for layoff:
Respondent 's management determined , based solely on
its judgment , which employees were best suited to per-
form the work that remained.
Respondent did not notify the Union that it was going
to lay off employees, the Union did not learn of the lay-
offs until the employees were laid off, and Respondent
did not bargain with the Union about the layoffs.
' Case 7-RC-17730. It was the Union that, on March 14, 1988, filed
the unfair labor practice charge that began this proceeding. The com-
plaint issued on April 28, 1988. Respondent admits the complaint 's allega-
tion that the Union is a labor organization for purposes of the Act and
that the following employees of Respondent constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec. 9(b)
of the Act:
All full-time and regular part-time production and maintenance em-
ployees employed by Respondent at its Standish facility, excluding
office clerical employees , guards and supervisors as defined in the
Act
8 The laid-off employees: Carol L. Barber, Ordene Carson, Evelyn
Hawks, Kevin Jeffs, Jessie L. Johnson , Greg Kohn, Mane Pashak,
Donald L. Smith, and Ralph Stelter
295 NLRB No. 106
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Conclusion
One of the issues in Adair III was whether Respond-
ent's layoff of employees without bargaining with the
Union violated Section 8(a)(5) and ( 1) of the Act. The
Board concluded that Respondent did violate those pro-
visions (at fn . 1 and p . 891). Since the facts there are
comparable in all pertinent respects to those here, I con-
clude that when Respondent laid off employees without
notifying and bargaining with the Union , it violated Sec-
tions 8(a)(5) and (1).3
2. Doctors' notes
Dennis Adair was manager of Respondent 's Standish
facility until June 1987. His assistant plant manager was
Joseph Krozleski . Then, June Krozleski took over as
plant manager.4
The General Counsel claims that when Krozleski
became plant manager , he instituted a new policy regard-
ing doctors ' notes, and that Krozleski did so without bar-
gaining with the Union.
a. The Adair period
Respondent has never had a stated policy , either writ-
ten or oral , about doctors' notes . But at all times Re-
spondent 's employees have on their own initiative often
brought in notes from their physicians. The employees
bring in the notes either : (1) prior to missing work, in
which case the notes relate to upcoming appointments;
or (2) after having missed work , in which case the notes
relate to the illnesses or injuries that sidelined the em-
ployee.
During Dennis Adair's tenure as plant manager, he
sometimes did ask employees for doctors ' notes, and
sometimes he did not . Adair seems to have had three cri-
teria for asking for doctors ' notes . The first was that the
employee did not bring in the note on his or her own
initiative . The second was that Adair happened to have
heard that the employee was going to be seeing a physi-
cian or that an employee 's recent absence was the result
of illness or sickness . And the third was that Adair hap-
pened to think of asking for a note when he saw the em-
ployee in question.
b. The Krozleski period
Respondent still does not have any stated policy about
doctors' notes . And employees still frequently bring in
doctors' notes on their own initiative . The difference be-
tween the Adair period and the Krozleski period is that
Krozleski always, or almost always, asked for doctors'
notes from employees who have missed work because of
illness or injury and who have not brought in notes ex-
plaining their absence.
8 In its answer to the complaint Respondent denies that it was required
to bargain with the Union since the Union "was not selected by an un-
coerced majority of the Respondent 's employees eligible to vote in the
representation election ." In view of the Board's certification of the
Union, however, and, in addition , the Board 's subsequent rulings that Re-
spondent's failure to bargain with the Union violated Sec . 8(a)(5), that de-
fense is inappropriate for consideration here.
4 Respondent admits that both Adair and Krozleski are supervisors and
agents of Respondent within the meaning of the Act.
Respondent does not contend that it bargained with
the Union about this change.
c. The impact of the change on employees
Respondent's employees are not paid for days they
miss work, whether the absence is caused by illness or
something else. Moreover employees are not punished
(apart from not being paid) if they miss work for reasons
that have nothing to do with their health , unless they
miss "an excess amount of work."
As for those instances in which Krozleski has asked
for doctors ' notes, no employee has ever been disciplined
in any way for failing to provide the requested note.
Moreover, the record suggests that the employees do not
treat the requests as carrying any threat of discipline.
Thus on one occasion when Krozleski told an employee
that he wanted a doctors' note, the employee responded,
"if I can get the doctor in, I'll bring one in." Finally it is
clear that at least some of the time Krozleski frames his
requests for notes in precatory terms, such as, "bring in a
slip if you can ," or "bring in a slip if you have one."
Doctors' Notes-Conclusion
The 10(b) Issue. There is only one unfair labor practice
charge covering the increased frequency with which Re-
spondent asked for doctors' notes . It was filed by the
Union in March 1988 . That is more than 6 months after
the General Counsel alleges that this change occurred.
And Respondent did raise the 10 (b) issue by pleading it
in the answer to the complaint.
But the 10(b) period did not begin to run until the
Union learned, or should have learned, of the change.
And it is Respondent who has the burden of showing
that such actual or constructive knowledge was gained
more than 6 months prior to the filing of the charge.
Clark Equipment Co., 278 NLRB 498, 529 (1986). More-
over the fact that members of the bargaining unit knew
of the change does not necessarily mean that the Union
did, particularly where, as here, the the Employer has
refused to recognize the Union. Id.
Since the record does not show that the Union did
learn of the change more than 6 months prior to its filing
of the unfair labor practice charge, I find that the allega-
tions of the complaint regarding the doctors ' note issue
are not time-barred.
Was the change a material, substantial, and significant
one? Assuming for present purposes that the increased fre-
quency with which Respondent asks for doctors' notes
amounts to a change in terms and conditions of employ-
ment, there remains the question of whether the change is a
"material, substantial and . . . significant one. " Adair III
at 891 , quoting Peerless Food Products, 236 NLRB 161
(1978). In view of the minimal impact of the change on
employees, I conclude that the increased frequency with
which management asks for doctors' notes from employ-
ees does not amount to a material, substantial , or signifi-
cant change in terms or conditions of employment and
that the allegations of the complaint addressed to this
matter accordingly should be dismissed.
ADAIR STANDISH CORP.
3. The strike
On January 26, 1988, the members of Respondent's
bargaining unit voted to authorize a strike. They did so
for two reasons . First, management 's "harassment" of
them . And second , Respondent 's continuing refusal to
recognize and bargain with the Union.5
The employees did not immediately go out on strike.
They wanted to avoid having to mount a picket line in
midwinter . (Standish is in central Michigan , on the coast
of Lake Huron; its weather that part of the year is not
benign.) And, as one employee credibly put it, "we kept
hoping things would improve ; maybe the company
would bargain with us." But Respondent continued to
refuse to recognize the Union and, on top of that, laid
off employees without bargaining (as discussed earlier in
this decision). That led to a decision made jointly by
union officials and a few leaders among the employees to
call a strike when Respondent recalled the laid -off em-
ployees.
The resulting strike began on March 17. The strike
was still underway when the hearing closed.
a. Procedural considerations
Respondent points out that the Union's unfair labor
practice charge does not claim that the strike is an unfair
labor practice strike . Respondent also points to the facts
that no strikers have made unconditional offers to return
to work, and that there is no evidence that Respondent
would refuse such offers if any were made. These con-
siderations , argues Respondent, preclude the Board from
determining in this proceeding whether the strike is an
unfair labor practice strike.
But Respondent is incorrect . As for the unfair labor
practice charge argument , that was settled , in the Gener-
al Counsel's favor, by Fant Milling.6 As for the fact that
the employees have not offered to return to work, as
early as 1956, the Board held that that precluded neither
a finding that a strike was an unfair labor practice strike
nor the issuance of an order requiring reinstatement of
striking employees upon their application . J. H Rutter-
Rex Mfg. Co., 115 NLRB 388, 414 (1956), enfd. 245 F.2d
594, 597-598 (5th Cir. 1957). Rutter-Rex remains good
law. E.g., North American Coal Corp., 289 NLRB 788 fn.
18 (1988).
b. The strike is an unfair labor practice strike
One of the reasons that the employees went out on
strike, and then stayed out on strike, was Respondent's
unlawful refusal to recognize and bargain with the
Union. The strike, therefore, is an unfair labor practice
strike. E.g., Citizens National Bank of Willmar, 245
NLRB 389, 391 (1979).
3 Respondent tried unsuccessfully to show that the reason the employ-
ees went out on strike was because , for at least some of them, their strike
pay (from the Union) exceeded their pay from Respondent.
6 NLRB v. Fant Milling Co, 360 U S 301 (1959) Fant Milling con-
cerned a complaint that dealt with incidents that arose subsequent to the
filing of the charge That is also true here The Union filed its charge on
March 14. The strike began on March 17.
THE REMEDY
987
The accompanying recommended Order requires Re-
spondent to make whole the employees whom Respond-
ent unilaterally laid off in the period February 23
through March 17, 1988 , for any loss of earnings and
other benefits the employees suffered as a result of the
unilateral layoffs. See Adair III at fn. 1. The recommend-
ed Order also requires Respondent to: (1) reinstate strik-
ing members of the bargaining unit in the event any such
strikers unconditionally ask for reinstatement , dismissing,
if necessary, employees hired on or after March 17 as re-
placements ; and (2) pay backpay commencing 5 days
after any such striker makes an unconditional offer to
return to work. Such backpay, and the backpay due the
laid off employees , shall be computed as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'
ORDER
The Respondent, Adair Standish Corporation, Stand-
ish, Michigan , its officers , agents, successors , and assigns,
shall
1. Cease and desist from
(a) Laying off bargaining unit employees without first
giving adequate and timely notice to Flint Local 282-C,
Graphic Communications International Union, AFL-
CIO, and affording it an opportunity to engage in collec-
tive bargaining with respect thereto.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole, in the manner set forth in the remedy
section of the decision, the following employees whom
Respondent unilaterally laid off on various days between
February 23 and March 17 for any loss of earnings and
other benefits they may have suffered:
Carol L. Barber Greg Kohn
Ordene Carson Marie Pashak
Evelyn Hawks Donald L. Smith
Kevin Jeffs Ralph Stelter
Jessie L. Johnson
(b) Expunge from its files any reference to the layoffs
and notify , in writing , the employees named in paragraph
2(a), above, that this has been done.
(c) On the unconditional offer to return to work of
any unfair labor practice strikers: (i) offer them immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
7If 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 pur-
poses.
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
without prejudice to their seniority or other rights and
privileges, dismissing , if necessary , any persons hired by
Respondent on or after March 17, 1988; and (ii) make
them whole, in the manner set forth in the remedy sec-
tion of this decision, for any loss of earnings they may
have suffered as a result of Respondent's refusal, if any,
to reinstate them.
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facility in Standish , Michigan , copies of
the attached notice marked "Appendix."s Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by Respondent 's representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered , defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found.
notice to your Union , Flint Local 282-C, Graphic Com-
munications International Union , AFL-CIO, and afford-
ing the Union an opportunity to engage in collective bar-
gaining about the proposed layoffs.
All full-time and regular part-time production and
maintenance employees employed by Adair Stand-
ish Corporation at its Standish , Michigan , facility,
but excluding office clerical employees, guards and
supervisors as defined in the National Labor Rela-
tions Act.
WE WILL NOT in any like or related manner , interfere
with , restrain , or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make whole the following employees, whom
we unilaterally laid off on various days between Febru-
ary 23 and March 17, for any loss of earnings and other
benefits they may have suffered as a result of the layoffs,
less any interim earnings, plus interest.
Carol L . Barber Greg Kohn
Ordene Carson Marie Pashak
Evelyn Hawks Donald L. Smith
Kevin Jeffs Ralph Steller
Jessie L. Johnson
WE WILL expunge from our files any reference to the
layoffs of those employees and notify those employees,
in writing , that this has been done.
6 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 Nation-
al 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."
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
I. REGARDING OUR REFUSAL TO
BARGAIN ABOUT LAYOFFS
WE WILL NOT lay off employees in the bargaining unit
described below without first giving adequate and timely
II. REGARDING REINSTATEMENT AND
OTHER RIGHTS OF STRIKING EMPLOYEES
Upon the unconditional offer to work of any employees
in the bargaining unit described above who are on strike
against us:
WE WILL offer to reinstate them to their former jobs,
without prejudice to their seniority or other rights and
privileges . If those jobs no longer exist when the em-
ployees unconditionally offer to return to work, we will
reinstate the employees in substantially equivalent posi-
tions.
WE WILL, if necessary in order to reinstate those em-
ployees, dismiss any person we hired on or after March
17, 1988.
WE WILL make whole those employees for any loss of
earnings and other benefits they may have suffered as a
result of our refusal , if any, to reinstate them , less interim
earnings, plus interest.
ADAIR STANDISH CORPORATION