American Diamond Tool

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 570 (N.L.R.B. 1992)

570
306 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On October 5, 1990, Administrative Law Judge Wallace H. Na-
tions issued the attached decision. The General Counsel filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 All dates are in 1990, unless otherwise stated.
4 The Respondent does not contest this finding. The General Coun-
sel does not except, inter alia, to the judge’s finding that neither the
January 2 layoffs nor the February 5 layoffs violated Sec. 8(a)(3).
American Diamond Tool, Inc. and United Steel-
workers of America, AFL–CIO–CLC. Cases 3–
CA–15592, 3–CA–15596, and 3–CA–15601
February 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The central question raised by the General Counsel’s
exceptions in this case1 is whether the judge correctly
found that, on January 18, 1990, the Union waived its
right to bargain about layoffs. Based on this finding,
the judge concluded that the Respondent had no back-
pay liability beyond January 18 for unlawful unilateral
layoffs on January 2 and that the Respondent did not
further violate Section 8(a)(5) of the Act by unilateral
layoffs on February 5.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, as further explained below, and to adopt the
recommended Order.
The Union was certified as the Respondent’s em-
ployees’ collective-bargaining representative on De-
cember 20, 1989. On January 2, 1990,3 the Respondent
laid off its three least-senior unit employees for eco-
nomic reasons. One of the laid-off employees almost
immediately accepted a transfer to a nonunit job. The
Respondent did not inform the Union of the layoffs or
of the transfer. Union negotiating committee member
Robert Kosikowski learned about the layoffs from fel-
low employees on about January 2, and he informed
the Union’s chief negotiator about them.
On January 18, the Union and the Respondent held
their first negotiating session. The Union had not pre-
viously raised any objection to the January 2 layoffs,
and it did not specifically mention the matter at the
meeting. The Union did submit its written contract
proposals on January 18. Included in the proposals was
a management-rights clause which specifically pro-
vided that the Respondent would have the unilateral
right to lay off employees by inverse seniority.
On January 25, the Respondent submitted its coun-
terproposals, which included tentative acceptance of
the Union’s proposed management-rights clause. On
February 5, the Respondent laid off two more employ-
ees by inverse seniority for economic reasons. The Re-
spondent again did not give the Union notice of the
layoffs. Kosikowski, however, learned of the layoffs at
the time they occurred and told the Union’s chief ne-
gotiator about them. Neither layoff was discussed at
the bargaining session held on February 5 or at any of
the next six or seven bargaining sessions. On February
13, the Union filed an unfair labor practice charge con-
cerning the layoffs. The Union first requested bar-
gaining over the layoffs on April 24. By that time, the
laid-off employees had already been recalled.
The judge found that the Respondent violated Sec-
tion 8(a)(5) by unilaterally laying off three employees
and by subsequently transferring one of them to a
nonunit job on January 2.4 He concluded, however,
that the Union’s subsequent conduct waived its right to
bargain about layoffs from and after January 18. We
agree.
To be effective, a waiver of statutory bargaining
rights must be ‘‘clear and unmistakable.’’ Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
‘‘Waivers can occur in any of three ways: by express
provision in the collective bargaining agreement, by
the conduct of the parties (including past practices,
bargaining history, and action or inaction), or by a
combination of the two.’’ Chesapeake & Potomac
Telephone Co. v. NLRB, 687 F.2d 633, 636 (2d Cir.
1982). In this case, where the parties had not yet con-
cluded their first collective-bargaining agreement, we
must decide the waiver issue based solely on evidence
of the parties’ conduct.
Several factors combine to support a finding of
waiver. First, the Union had actual notice of the Re-
spondent’s unilateral layoffs shortly after they took
place on January 2. Second, the Union had an oppor-
tunity to object to these layoffs and to the possibility
of future unilateral layoffs at the parties’ initial bar-
gaining session on January 18 and in numerous subse-
quent bargaining sessions. Third, the Respondent en-
gaged in good-faith bargaining and there is no evi-
dence that it would not have bargained about layoffs.
Indeed, the parties did bargain on this subject. The
Union itself proposed at the January 18 bargaining ses-
sion a management-rights provision which, if imple-
mented as part of a complete contract, would have per-
mitted the Respondent unilaterally to lay off employ-
ees by inverse seniority. On January 25, Respondent
tentatively accepted the proposal. Finally, in light of
this good-faith bargaining, we would not conclude that
the unilateral changes of January 2 necessarily tainted
the bargaining.
571AMERICAN DIAMOND TOOL
5 See, e.g., Associated Milk Producers, 300 NLRB 561 (1990);
Ventura County Star-Free Press, 279 NLRB 412, 420 (1986); Conti-
nental Telephone Co., 274 NLRB 1452, 1453 (1985).
6 Associated Milk Producers, supra.
1 The Respondent does not contest this finding.
2 San Antonio Portland Cement Co., 277 NLRB 309, 313 (1985).
3 Insulating Fabricators, 144 NLRB 1325, 1331–1333 (1963). In
that case, the respondent announced on August 16 to the union rep-
resentative, Denton, that five employees were due merit increases
and that the merit increases would be retroactive to August 13. Den-
ton did not reply. The Board rejected the respondent’s argument that
it was justified in construing Denton’s silence and failure to object
as acquiescence on the ground that Denton could reasonably assume
that any objection on his part would be futile since the announce-
ment amounted to a statement that the increases had been finally de-
cided and would be put into effect. The Board went on to state that
‘‘[W]hile a union may waive its right to bargain over certain mat-
ters, such waiver must be clear and unequivocal. It is not one lightly
to be inferred. We find in the circumstances here present no such
waiver could reasonably have been inferred by the Respondent from
Denton’s mere failure to respond to the announcement of merit in-
creases.’’ Id. at 1332 (footnote omitted).
We need not decide whether any of the foregoing
factors, standing alone, would prove a waiver by con-
duct of the Union’s bargaining right. Collectively, they
present a situation in which the Union had an oppor-
tunity to request bargaining about unilateral layoffs by
the Respondent, failed without excuse to do so, and
expressly signaled its willingness to permit such con-
duct in the future. This conduct amounts to waiver.5
Particularly in the context of initial collective bar-
gaining, where parties have no contract, past practice,
or established relationships to guide them, it was in-
cumbent on the Union to take more affirmative action
in order to preserve its right to protest unilateral lay-
offs by the Respondent. In our view, the Union could
not accept such unilateral conduct without challenge at
the bargaining table and thereafter seek to assert a bar-
gaining right merely by the filing of an unfair labor
practice charge.6
We emphasize the limits of our holding here. We
address only the implications of the Union’s unequivo-
cal conduct with respect to the Respondent’s unilateral
layoffs in January and February. We do not find that
the Union was bound to agree to a waiver of the right
to bargain about layoffs in any complete collective-bar-
gaining agreement reached by the parties. It was free
to change its position in subsequent negotiations, and
it apparently did so on April 24. From January 18 until
April 24, however, the Union’s conduct clearly indi-
cated that it would not object to unilateral economic
layoffs by the Respondent.
Our dissenting colleague stresses the absence of no-
tice prior to the layoff of January 2. We agree that the
absence of such notice is an important fact. Indeed,
based primarily on that fact, we have found the layoff
to be unlawful. However, the issue is whether the
Union, after learning of the layoff, subsequently led
the Respondent to believe that the Union did not ob-
ject thereto. As to this issue, we note that the Union
did not request bargaining to rescind the layoff until
April 24, almost 4 months after the layoff. In the in-
terim, on January 18, the Union made a proposal
which actually agreed with the type of action taken by
the Respondent. The dissent correctly notes that im-
passe was not reached on January 18. However, the
point is that the Union’s position on January 18, and
its failure to request bargaining to rescind the January
2 layoff, clearly led the Respondent to believe that the
Union was not seeking to bargain to rescind the layoff.
Accordingly, we affirm the judge’s finding of waiver
and adopt his recommendations to toll backpay for the
unlawful January 2 layoffs as of January 18 and to dis-
miss the complaint allegation that the February 5 lay-
offs violated Section 8(a)(5) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, American Diamond Tool,
Inc., Buffalo, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
MEMBER DEVANEY, dissenting in part.
While I agree with my colleagues that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by lay-
ing off three of its employees and subsequently trans-
ferring one of them to a nonunit position on January
2, 1990, without providing the Union timely notice of
its decision,1 I disagree with their conclusion that the
Union waived its right to bargain over these layoffs as
well as the subsequent layoff of two employees on
February 5, through its ‘‘failure’’ to request bar-
gaining. I note that at all times relevant the Union was
the certified collective-bargaining representative of the
Respondent’s employees and that it is undisputed that
the Respondent neither provided notice to nor bar-
gained with the Union prior to its implementation of
the layoffs.
Before any such implementation of layoffs, the
Board requires prior notice ‘‘so that the union may
have a reasonable opportunity to evaluate the proposal
and present a counterproposal before the change takes
place.’’2 In the absence of notice prior to implementa-
tion, a union is excused from an obligation to request
bargaining over the decision on the ground that it
would be futile to request bargaining over a fait
accompli.3 Thus, when a union learns of an employer’s
decision regarding a mandatory subject of bargaining
after its implementation, the Board will not find that
572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Alpha Biochemical Corp., 293 NLRB 753 fn. 1 (1989).
5 Associated Milk Producers, 300 NLRB 561 (1990), and Ventura
County Star-Free Press, 279 NLRB 412 (1986), relied on by the
majority, are clearly distinguishable. In those cases, the union re-
ceived timely notice of the employer’s decision prior to implementa-
tion. Indeed, those cases emphasize the very proposition that the ma-
jority ignores here, that only when a union has received timely no-
tice of an employer’s decision can the union’s subsequent failure to
request bargaining be construed as the waiver of such a right. In As-
sociated Milk Producers, supra, for example, the Board stated that
‘‘an employer’s obligation, prior to making a change in the terms
and conditions of employment, is to give notice of its planned
change and afford a reasonable opportunity for bargaining. If an em-
ployer meets its obligation and the union fails to request bargaining,
the union will have waived its right to bargain over the matter in
question.’’ (Footnote omitted; emphasis added.) Continental Tele-
phone Co., 274 NLRB 1452 (1985), relied on by the majority, is
also inapposite. In that case, the Board relied on the parties’ past
practice and the ‘‘Management Prerogatives’’ clause of the collec-
tive-bargaining agreement to find waiver. In the present case, as the
majority points out, the parties have neither a contract nor past prac-
tice on which to rely.
6 Although the majority initially states that the Union had an ‘‘op-
portunity’’ to request bargaining over the January 2 layoffs at the
first bargaining session, the majority’s later assertion that ‘‘it was in-
cumbent upon the Union to take more affirmative action in order to
preserve its rights’’ makes clear that in the majority’s view the
Union was obligated to request bargaining in order to preserve its
right to bargain.
7 The majority finds waiver by in effect finding, for the first time,
that when a union learns of layoffs after they occur, it has timely
notice of the layoff decision and is obligated to request bargaining
over the decision. As to what constitutes timely notice, the Board
has stated that ‘‘To be timely, the notice must be given sufficiently
in advance of actual implementation of the change to allow a reason-
able opportunity to bargain.’’ Ciba-Geigy Pharmaceuticals Division,
264 NLRB 1013, 1017 (1982). Although the Board has refused to
state as a general rule how many days prior to implementation notice
must be given, it has stated unequivocally that same-day notice is
‘‘insufficient.’’ See Williamette Tug & Barge Co., 300 NLRB 282
(1990). The Respondent did not even satisfy this standard.
8 See Bottom Line Enterprises, 302 NLRB 373 (1991).
9 Id. (footnote omitted; emphasis in original).
1 All dates are in 1990 unless otherwise noted.
2 Par. X(e) of the complaint, alleging unilateral implementation of
an attendance and absentee program, was withdrawn at the hearing.
union’s failure to request bargaining to constitute a
clear and unmistakable waiver of its right to bargain.4
Contrary to these well-established rules, and in the
absence of supporting precedent,5 the majority here
concludes that the Union was not excused from its ob-
ligation to request bargaining despite the fact that the
Union had no prior notice of the decision and only
learned of the layoffs after they were implemented.6
In finding waiver, the majority relies on notice to
the Union of the layoffs shortly after they occurred;
the Union’s opportunity to object at subsequent negoti-
ating sessions; and the Respondent’s otherwise good-
faith bargaining. These factors do not change the re-
ality that the layoffs were presented to the Union as
a fait accompli, and the Union had no obligation to re-
quest bargaining on them. And, as I would find that
the Union was not obligated to request bargaining, I do
not agree with the majority that the Union’s failure to
request bargaining at the first or later bargaining ses-
sions was ‘‘without excuse,’’ and that such inaction
evidences a clear and unmistakable waiver by the
Union of its right to bargain over the layoffs.7
Finally, I do not find that the Union’s January 18
proposal regarding layoffs made at the commencement
of the negotiation process somehow evidences a waiver
of its right to bargain over future layoffs. I note that
in applying its waiver analysis, the Board distinguishes
between occasions when the parties are engaged in ne-
gotiations and when they are not.8 When, as here, the
parties are engaged in negotiations, the Board holds
that ‘‘an employer’s obligation to refrain from unilat-
eral changes . . . encompasses a duty to refrain from
implementation at all, unless and until an overall im-
passe has been reached on bargaining for the agree-
ment as a whole.’’9 As the parties had not reached im-
passe prior to the February 5 layoffs, I do not agree
with the majority’s finding either that the Respondent
was privileged to make this unilateral change during
negotiations or that by its proposal the Union ‘‘ex-
pressly signaled’’ that it would condone such conduct
in the future.
Thus, I dissent from the majority’s findings that the
Union waived its right to bargain over the January 2
and February 5 layoffs. I would find that the Respond-
ent’s backpay liability regarding the three employees
laid off on January 2 was not tolled on January 18 and
that the second layoff of two employees on February
5 constituted an additional 8(a)(5) violation.
Michael Cooperman, Esq. and Mary Thomas Scott, Esq., for
the General Counsel.
Martin F. Idzik, Esq., of Jamestown, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on charges filed by United Steelworkers of America, AFL–
CIO–CLC (Union) on April 20, 23, and 25, 1990,1 the Re-
gional Director for Region 3 issued a consolidated complaint
on June 4, against American Diamond Tool, Inc. (ADT or
Respondent). The consolidated complaint alleges that Re-
spondent: (1) violated Section 8(a)(1) of the National Labor
Relations Act (Act) by offering to renew an incentive bonus
if its employees rejected the Union; (2) violated Section
8(a)(1) and (3) of the Act when it laid off three bargaining
unit employees effective January 1, and two additional bar-
gaining unit employees effective February 5; and (3) violated
Section 8(a)(1) and (5) of the Act when it unilaterally and
without notice to the Union implemented layoffs and a trans-
fer, discontinued the holiday and incentive bonuses, and
changed the vacation request policy regarding forfeiture of
accrued vacation pay and scheduling of vacations.2 Respond-
573AMERICAN DIAMOND TOOL
Further, because of a lack of evidence, General Counsel is no longer
alleging a violation of the Act with respect to that portion of par.
X(a) of the complaint with regard to the incentive pay bonus.
3 The date of recall or refusal to accept of these employees is as
follows:
Gerald Fournier January 2 recalled and transferred to a
nonunit position
Hipolito Nunez April 9 recalled
John Gagola February 26 recalled
Michael Cala February 26 recalled
Kevin Collins April phone calls commenced in
April for recall, employee
not reached by date of
hearing
4 The appropriate unit is described as follows:
All full-time and regular part-time molding department employ-
ees, finishing department employees, maintenance department
employees, and carbon room employees employed by Respond-
ent at its Arthur Street, Buffalo, New York facility; excluding
all office clerical employees, managerial employees, hot press
metal bond pilot project employees, quality control employees,
store clerks, guards and supervisors as defined in the Act.
ent denies the commission of any of the alleged unfair labor
practices.
Hearing was held in these matters in Buffalo, New York,
on July 17 and 18. Briefs were received from the parties on
or about August 24. Based on the entire record, including my
observation of the demeanor of the witnesses, and after con-
sideration of the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent American Diamond Tool, Inc. is a New York
corporation with an office and place of business in Buffalo,
New York, where it is engaged in the manufacture and sale
of grinding wheels and similar abrasive products. The Re-
spondent admitted the jurisdictional allegations of the com-
plaint and I find that it is now, and has been at all times ma-
terial to this decision, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was admitted, and I find, that the Union is now and has
been at all times material to this decision a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues Raised by the Complaint
The complaint presents the following issues for determina-
tion:
1. Did Respondent lay off Gerald Fournier, Kevin Collins,
and Hipolito Nunez effective January 2, and Michael Cala
and John Gagola effective February 5, because of their pro-
tected activity in violation of Section 8(a)(1) and (3) of the
Act?3
2. Did Respondent unlawfully transfer Gerald Fournier to
a nonunit position on January 2 in violation of Section
8(a)(1) and (3) of the Act?
3. Did Respondent unlawfully fail and refuse to pay a hol-
iday bonus in December 1989?
4. Did Respondent promise its employees a bonus if they
rejected the Union as their bargaining representative?
5. Did the Respondent on or about March 29, unlawfully
suspend approving vacation requests for its employees and
begin refusing to pay accrued vacation time to discharged
employees and employees who quit without 2 weeks’ notice?
6. Did the Respondent have an obligation to bargain with
the Union concerning the actions set forth in paragraphs 1
through 4 and 5, above, and did it take those actions unlaw-
fully in each instance without prior notice to the Union and
without having afforded the Union an opportunity to nego-
tiate and bargain with regard to those actions and the effects
of those actions?
B. Were the Layoffs and Transfer Unlawfully
Motivated?
On October 16, 1989, the Union presented Respondent
with a demand for recognition which Respondent denied.
Thereafter, the Union engaged in an organizing campaign.
Certain conduct formed the basis for a complaint which was
issued on December 29, 1989, alleging coercive preelection
conduct in violation of Section 8(a)(1) of the Act. With re-
spect to this complaint, the parties entered into, and the Re-
gional Director approved, a settlement agreement on January
29. General Counsel introduced certain evidence regarding
allegations in this complaint not to establish the unfair labor
practices it alleged, but to prove unlawful motivation behind
the layoffs and transfer involved in the instant complaint.
An election was held on December 7, 1989. Thirty five
employees were eligible to vote in the election, a majority
of whom selected the Union to be their collective-bargaining
representative. The Union was certified as the collective-bar-
gaining representative on December 20.4 Prior to the elec-
tion, the Respondent conducted an active campaign against
the Union. Its position with respect to the Union is perhaps
best set forth in General Counsel’s Exhibit 9, a series of let-
ters sent by Respondent to its employees. Inter alia, the let-
ters stress the Company’s opposition to the Union, that
unions cause strikes, layoffs, shutdowns, bankruptcies, hiring
of replacement workers, and other negative actions. One of
the letters urged the employees to give Joe Romanowski, a
new management member, a chance to work with the em-
ployees. Prior to the election, Romanowski held one on one
meetings with the unit employees wherein he interrogated the
employees about their union sympathies. Management also
held meetings with employees wherein the possibility of lay-
offs was noted.
Thomas Gagola testified about these meetings. Gagola had
been employed by Respondent as a molder, a unit position,
for about 1-1/2 years at the date of hearing. He is a member
of the Union’s negotiating committee and has been engaged
in bargaining since March 1990. He testified that shortly
after the Union made a demand for recognition, he had a
conversation with one of Respondent’s supervisors, Richard
Cook. According to Gagola, Cook said, ‘‘You might as well
forget about all the privileges you guys used to have.’’
‘‘From now on there’s no more parking in front of the build-
ing.’’ He also said that Respondent was going to start getting
rid of some of the work; and the only reason why the em-
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 At the hearing, General Counsel amended the complaint to allege
that this threat to terminate the existing incentive plan if the Union
was selected is a violation of Sec. 8(a)(1) of the Act. I would agree
that the statement is violative of the Act if it actually was made. I
cannot find from the evidence that it was. Cower did not admit mak-
ing the statement, and employee witnesses Tom Gagola, Daniel
Greishaw, and Bob Kosikowski testified about this meeting without
corroborating the testimony of Nunez in this regard. The statement
is also contradictory with the entire thrust of the meeting as de-
scribed by the other witnesses. I do not credit the testimony of
Nunez in this regard and thus do not find a violation of the Act.
6 For purposes of this discussion of whether Respondent’s actions
were discriminatorily motivated, Fournier’s ‘‘transfer or re-employ-
ment’’ will be addressed in the context of the layoff. I find no inde-
pendent evidence of discriminatory motive behind the ‘‘transfer’’ or
‘‘reemployment’’ of Fournier.
7 Respondent had evidently laid off employees on an individual
basis at various times in its past. However, there had never before
been a layoff of more than one employee at one time for economic
reasons.
ployees were doing some work at that time was to keep them
working. Cook said these changes were going to take place
because of the Union.
Later that day, Gagola had a conversation with Respond-
ent’s then plant manager, Tom Tower. According to Gagola,
Tower told him that if the Union gets in, that Respondent’s
president was either going to close the business or move it
to Mexico. Tower also said that the only reason Respondent
had so many employees working was to keep them em-
ployed. ‘‘That he’ll lay off up to 20 people or whatever he
needs just to keep it running.’’ These were the only con-
versations that he had with Tower and Cook about the
Union. At the hearing, Respondent took the position that
Tower had been demoted and suspended for engaging in
antiunion conduct beyond the bounds set by a consultant
hired by the Company to conduct its campaign against the
Union.
About 4 days before the election, Respondent’s president
Joe Cower met with his employees. According to Gagola, he
said that unions bring layoffs, closed plants, and unemploy-
ment. He spoke from notes and used a chart. Cower said,
‘‘You guys might be screwing up a good thing. . . . you
guys should be getting a bonus because it was the best two
months that we ever had.’’ Gagola testified that Romanowski
then spoke and said to the employees ‘‘that unions usually
shut down places.’’
Hipolito Nunez, a former unit employee, testified that near
the end of October 1989, he attended a meeting of several
employees held by Foreman Joe Nenoff. Nenoff told the as-
sembled employees that he had been involved with a union
for about 40 years, that they were no good, they only bring
trouble, and that the employees could get fired, laid off, and
the plant could close down. Nenoff had only been working
for Respondent for about a month at the time of this meet-
ing.
He testified about a meeting conducted by Romanowski
and Cower, wherein, speaking from notes, Cower said the
Union would be dreadful because other companies will not
buy from a union shop. He urged the employees to consider
their decision because existing company incentives would
allow employees to become millionaires by the time they
reached the age of 62. He indicated these incentives would
be dropped if the Union came in. He also said that if the
Union came in there would be firings and layoffs.5
Nunez was laid off in January. He arrived at work the last
workday in December 1989 and was told by a fellow em-
ployee that he was being laid off. Shortly after, he saw Tom
Phelan who told him the next day would be his last as he
was laid off. On Nunez’ request, he gave him a note indi-
cating Nunez was laid off for economic reasons. Nunez was
recalled on April 9 and returned to work in the same job he
had been laid off from. He was subsequently terminated for
cause, a matter not involved in this proceeding.
On the same date Nunez was laid off, fellow unit members
Kevin Collins and Gerald Fournier were also laid off. One
of these persons, Fournier, was almost immediately offered
employment in a nonunit job in a new, so-called ‘‘pilot
project’’ and he accepted the offer.6 On February 5, 1990,
two other unit employees, Michael Cala and John Gagola
were laid off.
In Wright Line, 251 NLRB 1083 (1980), the Board held
that on a prima facie showing that an employee’s protected
conduct was a motivating factor in an employer’s decision to
engage in discriminatory conduct, a violation of the Act is
established, unless the employer shows that it would have
taken the same action for legitimate reasons even absent the
employee’s protected activities. Evidence of hostility or ani-
mus, together with the discriminatory conduct occurring near
in time to the protected activity have been found to establish
a prima facie showing sufficient to support the inference that
the unlawful motivation was a factor in the decision. Cor-
rugated Partitions West, 275 NLRB 894 (1985); Gatliff Busi-
ness Products, 276 NLRB 543 (1985); A. G. Boone Co., 285
NLRB 1070 (1987); Lakepark Industries, 293 NLRB 452
(1989).
General Counsel asserts that the employees engaged in
protected activity by electing the Union to represent them
and the resulting layoffs were retaliatory. Certainly, Re-
spondent’s preelection conduct as set out above supports this
position. ADT made its union opposition clear, threatened
that unions cause layoffs, and then had the first group layoff
in its history about 4 weeks after the election.7 I believe the
evidence presented by General Counsel is sufficient to find
that a prima facie case of discriminatory activity by Re-
spondent has been established. However, I believe that Re-
spondent satisfactorily satisfied its burden under Wright Line,
supra, and proved that it would have laid off the involved
employees even in the absence of protected activity.
It is Respondent’s position that the layoffs were solely ef-
fected for economic reasons. Both General Counsel and Re-
spondent offer figures reflecting ADT’s financial perform-
ance for relevant periods, and there are only slight dif-
ferences in the figures cited by each. Appendix I to the brief
of General Counsel is a thorough representation of relevant
quarterly financial data of ADT for the period July–Sept.
1988 to Jan.–Mar. 1990. As pertinent, the appendix reflects
the following net profit or (loss) information:
July/Sept. 88 $1,675
Oct./Dec. 88 33,363
Jan./Mar. 89 (35,288)
Apr./June 89 14,088
July/Sept. 89 (116,335)
Oct./Dec. 89 (43,691)
575AMERICAN DIAMOND TOOL
Jan./Mar. 90 57,011
Respondent’s fiscal year begins July 1 and ends June 30.
Until the fiscal year ending June 30, 1990, the Company had
not experienced an unprofitable year. The fiscal year ending
June 30, 1989, had not been a good year in that net income
had only been $14,297. Following the large losses in the first
quarter of the 1990 fiscal year, Cower considered a number
of ways to cut costs, including effecting employee layoffs.
He was advised not to lay off unit employees because of the
possibility of being accused of unfair labor practices. How-
ever, he did lay off some sales and clerical employees and
eliminated entirely some sales and other nonbargaining unit
positions at that time. Following the election, with the month
of December being in his words, ‘‘a disaster profit-wise,’’
Respondent laid off three unit employees and transferred one
of these employees to a nonunit position. In February, two
other unit employees were laid off. The effect of the unit and
nonunit layoffs and position eliminations appear to have re-
sulted in a definite improvement in the Company’s perform-
ance based on the net profit figures for the third quarter
(Jan.–Mar.) 1990. Following two quarters reflecting substan-
tial losses, the Company posted a substantial profit. The laid-
off employees were recalled at about this time.
Although General Counsel correctly points out that the
Company had not effected layoffs in the past, even though
it had experienced a losing or weak quarter, the first two
quarters of 1990 do appear to be the worst experienced by
the Company for any period for which financial data was in-
troduced in evidence. Moreover, the Company laid off and
permanently eliminated nonunit employees, an action which
I believe strongly supports its economic necessity argument.
The unit employees laid off were the most junior from the
standpoint of seniority. They were not shown to be leaders
of the union activity or even perceived to be union activists.
The timing of the layoff also supports the Company’s posi-
tion. The first layoffs were at the end of December, when
the Company could judge what the Company’s December
performance had been, described as ‘‘disastrous.’’ Although
it is also close to the time of the election, it was not imme-
diate. The February layoffs were even further removed from
the date of the election and some further reductions in
nonunit employees were shown to have also occurred in late
winter or early spring 1990. Additionally, the timing of the
recall of the laid-off employees, immediately following a fi-
nancial rebound by the Company is more support for its po-
sition. The one employee transferred and/or offered employ-
ment in the Respondent’s nonunit pilot program was offered
reinstatement to his former unit position in April and de-
clined the offer.
In conclusion, I find that Respondent had demonstrated
that the layoffs and transfer alleged to be discriminatorily
motivated were in fact caused by legitimate business reasons
and do not constitute violations of the Act.
C. Did Respondent Violate the Act by Failing to Notify
the Union of the Layoffs and Transfer and by Failing
to Bargain with the Union Over the Decision to Effect
the Layoffs and Transfer?
On December 27, 1989, the Union sent a letter to Re-
spondent requesting bargaining. Respondent offered to meet
with the Union on proposed dates in mid-January. The Union
and Respondent met for the purposes of negotiating terms
and conditions of employment for the first time on January
18, at which time the Union submitted its written proposal.
As noted earlier, three unit employees were laid off effective
January 2, 1990, and one of these employees had been trans-
ferred to and/or offered reemployment in a nonunit position
on the same date. No notice of these layoffs and transfer was
given to the Union. Similarly, no notice was given to the
Union of the Company’s layoff of two more unit employees
on February 5.
However, union negotiating committee member Robert
Kosikowski testified that he knew of the January layoffs on
the date they occurred and informed the then chief union ne-
gotiator, Joseph Benbenek, about them at about the approxi-
mate time they occurred. The same was true with respect to
the February layoffs, except Kosikowski told the new union
negotiator, James Bickhart, who had replaced Benbenek. On
January 25, the Company gave the Union its counter-
proposals. Whether this was in a formal meeting or otherwise
is unclear in the record. The next certain meeting was held
February 5, and was followed by four meetings in March and
meetings in April beginning April 16. The matter of the lay-
offs was not raised at the January 18 meeting, at the Feb-
ruary 5 meeting, or at any of the six or seven subsequent
meetings held until the laid-off employees had been recalled.
Among the Union’s proposals of January 18, was a man-
agement-rights clause which stated that the Company had the
right to lay off employees and that any layoff would be ef-
fected in order of inverse seniority. The Company’s counter-
proposals, dated January 25, purported to accept this union
offer. Although there is no real argument that the parties are
in agreement with respect to these involved clauses in the
proposed contract, the Union takes the position that no part
of the proposed collective-bargaining agreement is final and
may not be implemented until the entire agreement is final
and ratified. The Company takes the position that it and the
Union are bound by portions of the proposed agreement
when a particular portion is agreed on.
The Company seems to have complied with changes in
past practice when an agreement is reached with the Union
which dictates such change. The Union suggested at the
hearing that if the Company’s position was correct, then it
could process grievances under the agreed-on grievance pro-
cedure. The Company seemed willing to accept such griev-
ances, though the Union had not attempted to file a griev-
ance by the date of hearing. In any event, though it seems
unusual for the Union and General Counsel to assert that Re-
spondent should not abide by a newly agreed on practice, I
view the parties apparent agreement on the matter of layoffs
to bear more on the question of waiver than an actual en-
forceable agreement.
On February 13, following the February 5 layoff of John
Gagola, his brother Tom, as a member of the negotiating
committee, filed an unfair labor practice charge on behalf of
the Union alleging that this layoff as well as the others, was
unlawful. Union Negotiator Benbenek denied any knowledge
of the layoffs while he was involved in negotiations. Union
Negotiator Bickhart denied any such knowledge until the
meeting of April 16, when he testified that he learned of the
layoffs from Gagola. I do not credit either denial.
Kosikowski testified very credibly that he had given both ne-
gotiators this information at about the time the layoffs oc-
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The matter of Fournier was raised at these meetings, with Gagola
objecting that Fournier wanted to return to his unit job. Respondent
offered Fournier that opportunity and he declined, preferring to stay
with the pilot project. Thus, the Company did bargain with the
Union on this matter and agreed to give Fournier his choice. As I
find below, the Company was obligated to give the Union notice of
Fournier’s layoff and subsequent reemployment in a nonunit posi-
tion. It was also obligated to bargain over this matter.
9 I believe that the matter of the transfer or reemployment of
Fournier would also be encompassed within the reasoning of Lapeer.
The transfer results in the loss of a unit position, either temporarily
or permanently. Therefore, I view the Respondent’s and the Union’s
obligations as the same regarding the layoffs and the transfer within
the circumstances of this case.
curred. Gagola was credibly shown to have attended at least
the bargaining session of March 8, a date after he filed the
involved unfair labor practice charge. Certainly he would
have discussed the matter with Bickhart at this meeting.
Gagola’s testimony on the question of knowledge was also
less than clear. He testified that he knew about the layoffs
in January and believed that he filed ‘‘right away when they
did it because they never laid off before.’’ He also testified
that ‘‘every two weeks they were laying people off’’ com-
mencing in January. This testimony obviously does not com-
port with the facts.
The Company’s chief negotiator, Thomas Phelan, testified
that the first time the Union requested bargaining over the
matter of the layoffs and transfer was in a phone conversa-
tion on April 24, a date also after the affected employees had
already been recalled. Although Bickhart indicated that the
matter was raised in bargaining session held April 16 and 18,
I do not credit his testimony.8 He admits the telephone con-
versation of April 24 and at one point in his testimony stated
that the charge over the layoffs was filed after he learned of
the layoffs. The charge he refers to was filed April 25. I con-
sider all Bickhart’s testimony to be extremely evasive and
lacking in candor. Therefore to the extent that his testimony
conflicts with that of other witnesses, especially witnesses
Phelan and Kosikowski, I credit their testimony over his.
General Counsel argues that according to Lapeer Foundry
& Machine, 289 NLRB 952 (1988), an employer’s decision
to lay off bargaining unit employees for economic reasons is
a mandatory subject of bargaining, and therefore, it must pro-
vide notice to and bargain with the union concerning the de-
cision to lay off bargaining unit employees as well as the ef-
fects of that decision.9 As was the case in Lapeer, the deci-
sion to effect the layoffs by Respondent was because of eco-
nomic difficulties and was designed to reduce labor costs. I
agree with the General Counsel that Respondent was obli-
gated to notify the Union of its intent to lay off the unit em-
ployees prior to laying them off on January 2 and to bargain
on request over the decision. The Respondent has not shown
that its financial predicament was so dire that implementation
of the layoffs could not await notice and bargaining.
On the other hand, I find that its obligation in this regard
was waived by the Union after January 18. In Lapeer, 289
NLRB at 954, the Board states:
In light of the economic circumstances motivating a
company’s decision to lay off employees, however, we
will require that negotiations concerning this decision
occur in a timely and speedy fashion. Thus, should a
union fail to request bargaining in a timely fashion
once the company has provided it with notice of the
layoff decision, we will find that the company has satis-
fied its bargaining obligation.
The Union had effective knowledge of the January layoffs
at about the time they occurred. However, no request was
made to bargain over the layoff issue at the January 18 meet-
ing or at any subsequent meeting before the laid-off employ-
ees were recalled. Moreover, at the meeting on January 18,
the Union proposed that the matter of layoffs be a matter of
management prerogative and proposed a layoff procedure
that mirrored the procedure the Company followed in both
the January and February layoffs.
General Counsel argues that the Union did not at any time
waive its right to request bargaining as its knowledge of the
layoffs was gained after the fact and a request to bargain
over the layoff decision would have been futile and unneces-
sary. In speaking to a related matter in Lapeer, supra at 954,
the Board stated:
Moreover, the employer’s duty to bargain will re-
quire meaningful negotiations concerning the decision
to lay off, and not merely the notification to the Union
of a decision that is a fait accompli. To ensure mean-
ingful negotiations, we will continue to scrutinize the
‘‘totality of the [parties’] conduct throughout the course
of bargaining.’’
In the instant case, I cannot find that failure to give notice
of the intent to lay off made a request to bargain over the
matter after it gained knowledge futile or unnecessary. The
first bargaining session occurred only 2 weeks after the first
layoffs and about 3 weeks before the second. If there was
an alternate solution to the Company’s financial problems at
the time, I believe the Company would have been willing to
explore such a solution. Unlike the situation in Lapeer,
where there was no ongoing bargaining and indeed the Board
found it necessary to issue a bargaining order, ADT and the
Union began bargaining on the Union’s request in a timely
and meaningful manner. By the time of the hearing, the par-
ties had met approximately 15 times. The parties had only
introduced economic negotiations in the latest two sessions.
Contract negotiations continue and most of the noneconomic
issues between the parties have been resolved. There does
not appear to be any evidence of less than good-faith bar-
gaining on the part of the Company in these negotiations.
Further, at the first bargaining session, the Company made
its financial records available to the Union which had them
analyzed. The Union’s auditors concluded by March 15 that
the Company was not financially healthy. Looking at the to-
tality of the negotiations as described in this record indicates
that a request to negotiate over the matter of layoffs would
not have been futile, if the request had been made before re-
call and the matter becoming moot. It appears however, from
the Union’s proposals of January 18 and its continued silence
at the bargaining table on the matter of layoff, that it either
had no interest in the matter or had no alternative sugges-
tions to make. In this regard I again note that the January
18 meeting occurred well before the February 5 layoffs. Had
the Union raised the matter, it could have bargained over this
decision and conceivably over the possibility to rescinding
the earlier layoffs. The Union did demand bargaining over
the transfer of Fournier to a nonunit position and the Com-
577AMERICAN DIAMOND TOOL
pany did bargain, offering to reinstate him to his former unit
position if he so desired.
In conclusion, I find that by having knowledge of the Jan-
uary layoffs and February and failing to request bargaining
over the issue in a timely manner, the Union waived its right
to bargain after January 18 until it asserted it desire to bar-
gain on April 24. Of course, one could construe the Union’s
proposal to make the matter of layoffs a matter of manage-
ment right and the Company’s acceptance of the offer to be
bargaining over the issue. In either event, I believe the same
result should occur. To effectuate the policies of the Act, I
will recommend that Respondent make whole the unit em-
ployees that it laid off on January 2 for any losses they suf-
fered by virtue of the layoff until January 18, when I find
the Union waived its right to bargain over the matter by not
requesting bargaining. Because the Respondent could not
have anticipated the Union’s proposal to make layoffs a mat-
ter of management rights prior to January 18, it cannot say
in hindsight that the proposal was justification for failing to
give notice of its intention to lay off unit employees.
However, after the January 18 meeting, when the Union
offered a proposal to make layoffs a matter of management
prerogative coupled with no complaint being voiced by the
Union about the January 2 layoffs, I believe that Respondent
was justified in continuing the January layoffs and effecting
the February layoffs without further need for notice. Until
the Union’s waiver on the matter of layoffs, Respondent was
acting in violation of Section 8(a)(1) and (5) of the Act.
D. Did Respondent Unlawfully Change its Vacation
Request and Vacation Pay Policies?
1. Vacation requests
Most of Respondent’s unit employees are entitled to 1
week of vacation per year, with a few more senior employ-
ees entitled to 2 weeks’ vacation. The Company’s past prac-
tice dictated that employees give their supervisor the dates
they wanted vacation early in the year and the supervisor
would attempt to comply with the employee’s request, if pos-
sible. ADT’s company manual, which predates any union ac-
tivity, provides with respect to vacations:
To avoid inefficiencies, vacations in each department
will be scheduled by each supervisor. Each supervisor
along with payroll will have a copy of this schedule.
In case of a disagreement, employees with the most se-
niority will have the first choice.
On March 27, Phelan sent to James Bickhart the following
letter:
Dear Jim:
I want to give each employee the following letter
and wanted to let you see it first.
TO: All Employees
FROM: Tom Phelan
SUBJECT: 1990 Vacations
Due to a very high absentee rate and a possible sum-
mer vacation shut down no further vacations will be
granted.
As soon as these issues are resolved we will resume
standard vacation planning.
Also, we are making an addition to the Company
Policy Manual regarding vacation pay. It is as follows:
‘‘If an employee is discharged for cause, any accrued
vacation will be forfeited.’’ End of Letter.
Please call me to discuss this as soon as possible.
Signed: Thomas Phelan
Bickhart testified that he responded to this letter by calling
Phelan and telling him that the Union did not agree with the
change and it had to be negotiated. At the next two negoti-
ating sessions, the matter was discussed. Bickhart was not
positive about whether an agreement was reached, although
he stated ‘‘I know we have something on the vacation pol-
icy.’’ This is an important question as there is nothing wrong
with the Company proposing a change in vacation policy and
offering to bargain over the change, which is what it did.
The Company violates the Act only if it implements the pro-
posed change before impasse or agreement. The parties clear-
ly did reach agreement on the proposed change.
The Company wanted to effect a change in vacation
scheduling as part of a plan to have a weeklong plant shut-
down during the week of July 4, a time when many of its
customers also have plant shutdowns. Maintenance and repair
to equipment would be accomplished during this time. Bar-
gaining over this matter occurred at the April negotiation ses-
sions, and in a June 13 session, the parties finally agreed to
the shutdown and the procedures to be followed in effecting
the shutdown. These procedures included employees taking a
week of vacation during the shutdown. There is no allegation
that the agreed-on shutdown violates the Act. Thus, the only
question is, did the Company actually implement the pro-
posal before agreement?
The only evidence supporting General Counsel’s conten-
tion that the change was implemented prior to agreement is
a statement by Phelan that he denied two vacation requests
at some point in April. It is not clear to me that these re-
quests were denied pursuant to the proposed change, because
of an agreement with the Union or for other reasons. The
only person actually identified who was denied vacation time
on request was Daniel Greishaw. Greishaw testified that in
April, he requested permission to take his week vacation as
soon as possible. Phelan denied the request telling Greishaw
that at that time he needed molders and just could not afford
to have Greishaw, a molder, take time off.
Further evidence that the proposal was not implemented
before agreement is the fact that at least three identified em-
ployees were granted permission to take vacation after the
proposal was made and before the July shutdown.
I also find interesting the fact that the charge underlying
this complaint allegation was filed on April 19, a time when
the parties were clearly engaged in bargaining over the mat-
ter. Moreover, Bickhart was asked the following question,
‘‘After you renewed your demands to bargain on the issue,
has the company since then informed you that it intended to
deny requests, vacation requests, of any employees?’’ He an-
swered, ‘‘Not to my knowledge.’’ Considering all the evi-
dence, I do not find that the Company unilaterally imple-
mented its proposed change in vacation scheduling absent
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement of the Union and did not violate the Act in this
regard, as alleged in the complaint.
2. Payment of accrued vacation on termination
The complaint also alleges that the Company proposed by
its letter of March 27 a change in its policy concerning pay-
ment of accrued vacation to terminated employees and those
giving less than 2 weeks’ notice, and implemented the pro-
posal without the approval of the Union. With respect to this
matter, the company manual provides: ‘‘Vacation pay in lieu
of vacation will only be possible if approved by the President
of the Company.’’ Phelan testified that, from at least June
1989, when he became employed by the Company, the exist-
ing practice was to pay accrued vacation pay to employees
when they quit only if they gave 2 weeks’ notice and to pay
no accrued vacation pay if they were discharged for cause.
He testified that this policy was consistently applied both be-
fore and after the Union’s organizing of the Company.
Prior to the Union’s organizing efforts, the Company had
a problem with the New York State Department of Labor in
regard to application of the policy to a discharged employee
named Warren Champagne. The state agency ordered the
Company to pay Champagne his accrued vacation because
the conditions of forfeiture were not specifically spelled out
in the company manual. Subsequently, on December 8, 1989,
the agency wrote a letter to ADT suggesting that it ‘‘clearly
state under what conditions an employee forfeits the ben-
efit.’’
The Company’s contract proposals given to the Union on
January 25 include provisions for paying accrued vacation
pay to employees only if they give 2 weeks’ notice and are
not terminated for cause. Bickhart, on March 22, agreed to
the Company’s contract proposal, which mirrors the Com-
pany’s past practice.
I find that alleged change in vacation policy was in fact
a past practice, predating the Union’s presence, was shown
to have been followed, was encompassed within the general
language of the company manual, and was bargained over
and approved by the Union on March 22. The sole purpose
behind rewording the company manual in this regard was in
to response the state agency’s request, and did not constitute
a change in policy. I do not find a violation of the Act by
the Company’s actions in this regard.
E. Did the Company Violate the Act by Failing to Give
Notice to the Union and Bargain over its Decision Not
to Pay the 1989 Christmas Bonus?
Respondent had a practice of paying a $100 Christmas
bonus to each of its employees (unit, nonunit, and manage-
rial) and it unilaterally and without notice to the Union de-
cided not to pay the bonus for 1989. Although the complaint
alleges, inter alia, that this decision was discriminatorily mo-
tivated, that position is not urged by General Counsel on
brief. Indeed the Respondent offered credible evidence that
its cash flow situation in December 1989 precluded the pay-
ment of the bonus. Its accountant testified that had the bonus
been paid to the 60 employees entitled to it, the Company
could not have paid its next regular payroll.
General Counsel urges, however, that the Company did
violate the Act by failure to give notice to the Union of the
decision and thereafter bargain over the decision. Knowledge
of the nonpayment of the bonus must be attributed to the
Union as Kosikowski was one of the negotiating members at
the first meeting of the parties on January 18 and he was in-
formed that the payment would not be made. The evidence
over the matter of whether bargaining occurred on this issue
is equivocal. Benbenek, the Union’s chief negotiator on Jan-
uary 18 and February 5 was asked, ‘‘Do you recall any dis-
cussions regarding the Christmas bonus?’’ He answered,
‘‘Yes, I think there was. I’m not sure if it was in the pro-
posals or what have you. If it was in the proposals it was
discussed in generalities, one of the two. The Christmas
bonus, turkey, thanksgiving, possibly the attendance, et
cetera, or what have you. I think the company had a so-
called, not a wish list but they proposed that they could no
longer afford to continue these benefits.’’ Benbenek was then
asked, ‘‘Did the company inform you at that time that they
intended not to distribute the Christmas bonus for 1989?’’
Benbenek answered, ‘‘I don’t recall.’’
Kosikowski, who was in attendance at the January 18
meeting, was asked, ‘‘Has the company in negotiations, ever
discussed the incentive bonus or the Christmas bonus, that
you can recall?’’ He answered, ‘‘Not really. We’ve been
staying away from monetary issues, really. We basically just
got wording out of the way up until now.’’
It appears to me from the foregoing evidence that the par-
ties were aware of the nonpayment, discussed the matter of
the Christmas bonus at the first bargaining sessions and post-
poned bargaining over it until a later point in negotiations.
Unlike the decision to lay off employees which could have
been held until negotiations began, I believe that Respond-
ent’s cash flow problem had to be addressed immediately.
That it did not pay the bonus on the date normally paid does
not make subsequent negotiations over restoring the payment
futile. The parties were at the date of the hearing just begin-
ning to address economic issues, including the matter of the
Christmas bonus. This delay in addressing the economic
issues was the joint decision of the parties. Under the cir-
cumstances, I do not find that there has been a failure to ne-
gotiate over the decision not to pay the bonus and therefore
do not find a violation of the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent, American Diamond Tool, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL–CIO–CLC is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Since December 20, 1989, the Union has been certified
as the exclusive representative for purposes of collective bar-
gaining of Respondent’s employees in the following appro-
priate unit:
All full-time and regular part-time molding department
employees, finishing department employees, mainte-
nance department employees, and carbon room employ-
ees employed by Respondent at its Arthur Street, Buf-
falo, New York facility; excluding all office clerical
employees, managerial employees, mix room employ-
ees, packing and shipping employees, hot press metal
bond pilot project employees, quality control employ-
579AMERICAN DIAMOND TOOL
10 There is evidence that Fournier did not suffer any loss of earn-
ings by virtue of the layoff as he was reemployed almost imme-
diately in a nonunit position. However, in the event it is found sub-
sequently that he did suffer any loss between January 2 and 18,
1990, he is entitled to recover such losses.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
12 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.’’
ees, store clerks, guards and supervisors as defined in
the Act.
4. By unilaterally laying off three of its employees in the
above-described unit and transferring one of these employees
to a nonunit position on or about January 2, 1990, without
providing the Union with notice and opportunity to bargain
about the decision to lay off and transfer employees, and the
effects of that decision, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act.
5. By its actions on and after January 18, 1990, and con-
tinuing until April 24, 1990, the Union has waived its right
to bargain further over the decision and effects of Respond-
ent’s layoff of unit employees on January 2 and February 5,
1990. The Union did request to bargain over the transfer of
an employee to a nonunit position and Respondent complied
with the request.
6. The unfair labor practices found above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. The Respondent did not commit any of the other unfair
labor practices alleged in the involved complaint.
THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices in violation of Section
8(a)(1) and (5) of the Act, it is recommended that it be or-
dered to cease and desist therefrom and take the following
affirmative action deemed necessary to effectuate the policies
of the Act.
Having found that Respondent unilaterally and unlawfully
laid off its employees Gerald Fournier,10 Kevin Collins, and
Hipolito Nunez effective January 2, 1990, and thereafter un-
lawfully maintained them in layoff status until the Union’s
waiver of its right to bargain over their layoff on January 18,
1990, it is recommended that Respondent be ordered to make
these employees whole for any losses they may have suffered
by their unlawful layoff from January 2 until January 18,
1990, to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest to be
computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, American Diamond Tool, Inc., Buffalo,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Absent an agreement with the Union embodied in a
collective-bargaining agreement, unilaterally laying off em-
ployees without providing the Union with notice and oppor-
tunity to bargain about the decision to lay off employees and
the effects of that decision.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Gerald Fournier, Hipolito Nunez, and Kevin Col-
lins whole for any losses they may have suffered by their un-
lawful layoff from January 2 until January 18, 1990, in the
manner set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its Buffalo, New York facility copies of the at-
tached notice marked ’’Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT, absent an agreement with the United Steel-
workers of America, AFL–CIO–CLC embodied in a collec-
tive-bargaining agreement, unilaterally lay off our employees
without providing the Union with notice and opportunity to
bargain about the decision to lay off employees and the ef-
fects of that decision.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employee in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL make Gerald Fournier, Hipolito Nunez, and
Kevin Collins whole for any losses they may have suffered
by their unlawful layoff from January 2 until January 18,
1990, with interest.
AMERICAN DIAMOND TOOL, INC.