Circuit-Wise, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1992

306 N.L.R.B. 766 (N.L.R.B. 1992)

766
306 NLRB No. 157
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s findings that the Re-
spondent violated Sec. 8(a)(5) and (1) of the Act by failing to timely
furnish to the Union requested information concerning replacement
employees after the strike commenced, by withdrawing recognition
from a portion of the bargaining unit encompassing waste water
technicians, and by unilaterally changing work schedules of certain
of its employees in June 1989; that the Respondent violated Sec.
8(a)(3) and (1) of the Act by verbally counseling and issuing a writ-
ten warning to Frank Blazi because of his union activities, by issuing
a warning to Javier Cruz because of his union activities, by issuing
warnings and a 3-day suspension to Lonnie Hailey because of his
union activities, by giving Rose Puccino a 3-day suspension because
of her union activities, and by failing to pay accrued vacation bene-
fits to strikers; that the Respondent violated Sec. 8(a)(1) of the Act
by preventing an employee designated by the Union from speaking
with or questioning other employees during safety inspection tours
conducted by the Occupational, Safety and Health Administration,
by enforcing a no-solicitation rule disparately and discriminatorily
against employees who engaged in union activities, and notifying Jo-
seph Wingate that his absence from work on February 24, 1989, was
unexcused despite advance notice that Wingate would be attending
a union meeting; and that the strike which commenced on September
11, 1989, was an unfair labor practice strike.
The Respondent, the General Counsel, and the Charging Party
have each excepted to some of the judge’s credibility 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.
2 In adopting the judge’s finding that Lennora Daniels was
discriminatorily discharged, we find it unnecessary to rely on his
finding of disparate treatment of employee Bernard Young. We also
find it unnecessary to pass on the judge’s finding that the parties
were at impasse on August 1, 1989, or that the Respondent’s July
18 final offer was never withdrawn. Finally, in adopting the judge’s
finding that the Respondent violated the Act by unilaterally remov-
ing waste water technicians from the bargaining unit, we find it un-
necessary to pass on the General Counsel’s alternate theory with re-
gard to this issue.
The judge concluded that the Respondent unlawfully refused to
provide the Union with certain requested information relevant to the
evaluation of the Respondent’s proposal to pay employees a quality
bonus. The judge, however, failed to order the Respondent to furnish
to the Union requested information relating to average lots and yield
for fiscal year 1989. As this information is necessary for calculating
the existence and amount of any improvement over the 1988 base
year, which in turn determines the bonus pool, we find this informa-
tion relevant to evaluating and assessing the Respondent’s bonus
proposal, and we shall modify the Order accordingly. We have fur-
ther modified the Order to provide a make-whole remedy for the
waste water technicians from whom the Respondent unlawfully with-
drew recognition.
3 The judge found that the Respondent violated Sec. 8(a)(3) of the
Act by discriminatorily denying an outstanding performance rating
to employee Blazi. In reaching this conclusion, the judge credited
Blazi’s testimony that his supervisor told him that he would have re-
ceived an outstanding rating except for his union activity. Despite
this finding, the judge failed to make a finding with regard to the
specific allegation in the complaint that this statement independently
violated Sec. 8(a)(1). Because the Board has consistently found that
such statements linking an employee’s success on the job to involve-
ment in union activities is a violation, we find that the statement by
Blazi’s supervisor violated the Act as alleged. Armour Con-Agra,
291 NLRB 962 (1988).
The General Counsel excepts to the judge’s failure to find that cer-
tain violations found by the judge were also violations of additional
sections of the Act, as alleged. We find merit in this exception. Ac-
cordingly, we find that the Respondent’s denial of access to the
union health and safety expert for evaluation of workplace health
and safety hazards violated Sec. 8(a)(5) in addition to Sec. 8(a)(1).
Hercules, Inc., 281 NLRB 961 (1986), enfd. 833 F.2d 426 (2d Cir.
1987). Further, we find that the Respondent’s enforcement of its no-
solicitation rules against union supporters to be a violation of both
Sec. 8(a)(3) and of Sec. 8(a)(1). Premier Maintenance, 282 NLRB
10, 11 (1986). Finally, we find that the Respondent’s unilateral de-
nial of vacation benefits which was not based on any existing policy
with regard to vacation benefits, violated Sec. 8(a)(5), as well as
Sec. 8(a)(1) and (3). Gulf & Western Mfg. Co., 286 NLRB 1122,
1124–1125 (1987).
Circuit-Wise, Inc. and United Electrical, Radio and
Machine Workers of America (UE). Cases 39–
CA–3885, 34–CA–3975, 34–CA–4173–1, 34–CA–
4173–2, 34–CA–4174, 34–CA–4175, 34–CA–
4189, 34–CA–4199, 34–CA–4200, 34–CA–4207,
34–CA–4216, 34–CA–4305, 34–CA–4330, 34–
CA–4352, 34–CA–4487, 34–CA–4500, and 34–
CA–4583
March 24, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 17, 1991, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions, a supporting brief, and an
answering brief to the exceptions taken by the General
Counsel. The General Counsel filed exceptions, a sup-
porting brief, and an answering brief. The Charging
Party filed cross-exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 only to the extent consistent with this Deci-
sion and Order.3
1. The General Counsel and the Charging Party ex-
cept, inter alia, to the judge’s failure to find that the
Respondent violated Section 8(a)(5) and (1) of the Act
by excluding the Union from its problem-solving pro-
cedure and by dealing directly with employees regard-
ing their grievances and violated Section 8(a)(3) and
(1) by conditioning use of the problem-solving proce-
dure on an employee’s willingness to forgo union rep-
resentation. We find merit in these exceptions.
For some time prior to the Union’s arrival, the Re-
spondent maintained a problem-solving procedure
under which an employee with a complaint could bring
his ‘‘grievance’’ through a series of steps from depart-
767CIRCUIT-WISE, INC.
4 All dates are in 1988 unless otherwise indicated.
5 See Harowe Servo Controls, 250 NLRB 958, 1049 (1980), and
cases cited at fn. 250.
In Member Raudabaugh’s view, the rationale set forth above es-
tablishes a violation with respect to meetings at which the Union
was not present. These meetings occurred when employees agreed
to forgo union representation. However, in those instances where
employees insisted on union representation, no meeting occurred. In-
stead, the Respondent subsequently met with the Union’s representa-
tive with respect to the employee’s grievance. Hence, in the latter
instances, there was no 8(a)(5) violation in Member Raudabaugh’s
view.
6 Furthermore, the Respondent sought to use this state of affairs
to denigrate the Union by observing in correspondence with employ-
ees that contract issues were going unresolved because the Union
was spending too much time in negotiations discussing ‘‘individual
gripes and grievances.’’
7 Chairman Stephens and Member Devaney note that the basis for
finding that the Respondent’s conduct in the matter of grievance res-
olution violated Sec. 8(a)(3) also provides a basis for finding that
the Respondent did not act in good faith in its bargaining over griev-
ances with those employees who had to forgo problem-solving meet-
ings because of their insistence on union representation. Thus, unlike
Member Raudabaugh, they find, as noted above, that the Respondent
violated Sec. 8(a)(5) with respect to these employees as well as the
employees whose grievances were handled in sessions from which
the Union was excluded. In so concluding, they in no way suggest
that the Respondent was required to grant paid time off for the stew-
ards or any other employees who sought to function as grievance
representatives. Paid time for union representation is simply a sub-
ject on which the Respondent was required to bargain in good faith.
ment manager, through various levels of management,
and ultimately to the Respondent’s president. When
bargaining began, the Union proposed the creation of
an interim grievance procedure. The Respondent re-
jected the proposal, preferring instead to continue to
use its problem-solving procedure.
Beginning with the discharge of employee Margaret
Lewis in June 1988,4 the Union attempted to have its
representatives accompany employees to meetings ar-
ranged under the problem-solving procedure. Each at-
tempt was frustrated by the Respondent’s refusal to
allow the union representative to accompany the af-
fected employee or to hold a meeting with the affected
employee if that employee insisted on union represen-
tation. The Union protested this action by letter, and
the Respondent replied that there were ‘‘no rights of
union representation’’ at these meetings and, until a
collective-bargaining agreement was reached, the Re-
spondent intended to exclude union representatives
from the meetings. The Respondent indicated that it
would discuss individual grievances of employees who
insisted on union representation before the commence-
ment of scheduled bargaining sessions. The Respond-
ent, however, continued to meet individually with em-
ployees who agreed not to have a union representative
present.
In January 1989, the Union established a shop stew-
ard system, and, after election of the stewards, notified
the Respondent as to which employees were stewards.
However, when these stewards subsequently attempted
to file grievances on behalf of employees, the griev-
ances were rejected by the Respondent. Supervisors
were instructed not to meet with or accept grievances
from the stewards, and they were also told that if an
employee wanted to have a meeting under the prob-
lem-solving procedure, that employee could only have
such a meeting without the presence of a union rep-
resentative.
Under these circumstances, we find that the Re-
spondent, in its problem-solving procedure, unlawfully
excluded the Union, unlawfully denied union represen-
tation to employees, and unlawfully dealt directly with
employees regarding their grievances. The undisputed
evidence establishes that the Respondent excluded the
Union from its problem-solving procedure and would
agree to meet with the employee in an attempt to re-
solve his grievance only if he agreed not to have a
union representative present. Those employees who
gave up union representation had their grievances proc-
essed through the problem-solving procedure. Those
employees who continued to insist on having a union
representative present had their grievances deferred to
the negotiating sessions between the parties.
The Union had a right to be present at the problem-
solving meetings. In this regard, we note that the pur-
pose of these meetings was to adjust the employment-
related complaints of employees. In these cir-
cumstances, the meetings were ‘‘grievance adjust-
ment’’ meetings, and the Union had a right to be
present, without regard to whether the grieving em-
ployees desired such presence.5
In addition, the Respondent violated Section 8(a)(3)
in these respects. Employees who agreed to forgo
union representation were given a reasonably prompt
face-to-face meeting with the Respondent’s representa-
tives, while those who would not agree had to await
a scheduled contract negotiating session. Discussion of
their grievances with the Respondent’s attorney would
have to be sandwiched into the time available for ne-
gotiation of a collective-bargaining agreement.6 This
discrimination in employment was violative of Section
8(a)(3). The Respondent should have met with those
who sought union representation and those who did
not, in both cases permitting the Union to be present.7
2. The General Counsel and the Charging Party ex-
cepted to the judge’s failure to find that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by re-
fusing to furnish the Union with financial information
requested by the Union in connection with the Re-
spondent’s proposal for a profit-based retirement plan.
We find merit in this exception.
On September 22, 1988, the Respondent proposed a
retirement plan which was to be funded by paying 2
percent of its pretax profits. The profit-based plan was
offered in response to the Union’s demand for a pen-
sion plan with a fixed level of contributions. On No-
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The five questions posed by the Union were: (1) Does this state-
ment include consolidated subsidiaries and joint ventures? (2) How
much of manufacturing overhead is depreciation, and how much is
real cash expenditure? (3) What is included in selling, general and
administrative expense? (4) What is included in ‘‘other’’ expenses?
and (5) What percentage of the total labor items is the unionized
work force.
9 The five questions were the following: (1) Regarding interest
payments—who holds the loan and at what rate? (2) How much rent
is paid and to whom? (3) Over how many years and what accounting
method is used for depreciation? (4) How many salespersons,
clericals, or other administrative positions are there, how many man-
agers are there, and what are their salaries? and (5) Please list each
item in selling, general, and administrative expense and ‘‘other’’ ex-
penses and the amount of money for each one.
vember 15, after discussion at several negotiating ses-
sions, Union Representative Hart requested documenta-
tion of the Respondent’s profits since 1985. On No-
vember 27, the Respondent’s attorney Wilgoren stated
that the Respondent’s profits for 1987 were approxi-
mately $1 million. The Union responded that it wanted
more information and that it wanted it in writing. On
December 15, the Respondent produced a one-page
document purporting to be a ‘‘financial summary’’ for
the years 1985 through 1987.
The financial summary listed for each year the Re-
spondent’s net sales and costs of sales in six broad cat-
egories, including beginning inventory, total labor, and
manufacturing overhead. Those categories were de-
ducted from the net sales figure to arrive at gross prof-
its. The document also listed two more broad cat-
egories of deductions, ‘‘Sell, Gen. & Admin Exp’’ and
‘‘Interest & Other Exp,’’ which were subtracted from
the gross profits to arrive at ‘‘Net Profit (Loss) pre-
tax.’’ The document revealed that the Respondent had
2 years of net profits after experiencing net losses in
1985 and 1986.
At a negotiation session on January 4, 1989, the
Union stated that it did not completely understand the
document and asked that some of the broad categories
listed be broken down. Hart told Wilgoren that he
wanted to know what was included in total labor, over-
head, selling and general administrative expense, and
interest and other expense. Wilgoren explained that
total labor included direct and indirect labor and that
overhead included supervision, pollution control, and
other operation costs. Finally, Wilgoren explained that
‘‘Sell, Gen. & Admin Exp’’ included the salaries of
executives, personnel department employees, and sales
staff. When Hart inquired as to the number of people
in these categories and their salaries, Wilgoren stated
that the information was not relevant. Hart replied that,
as a closely held corporation, the Respondent was not
required to make public disclosure and as the summary
was generalized and showed large fluctuations in net
profit, the Union needed to know specifically how the
Company accounted for its net profits and how it de-
rived those figures. Further, Hart stated that the Union
could not responsibly judge the Respondent’s pension
proposal without more information. On January 26, the
Union again put forward its pension proposal calling
for a fixed level of contribution. Again, the Respond-
ent, through Wilgoren, stated it would only agree to a
pension plan where contributions were tied to profits.
By letter dated January 31, 1989, the Union re-
quested a copy of the Respondent’s balance sheet and
funds flow statements for the last 4 years ‘‘in order to
properly evaluate’’ the Company’s proposal and to
make a counterproposal. The letter also listed five
questions related to the financial summary.8 When the
Union attempted to ask those questions at the bar-
gaining session, Wilgoren answered the first question,
but refused to give more information. The Union also
proposed a counteroffer, basing pension contributions
on gross profits rather than net profits. The Respondent
rejected this proposal. Following this meeting, the
Union, by letter dated February 8, 1989, requested an-
swers to five additional questions concerning the ‘‘net
profit’’ portion of the financial summary.9 At the Feb-
ruary 16 meeting, Wilgoren orally responded to the
questions and for the most part stated that the informa-
tion requested was irrelevant. The union representative,
Carol Lambiase, then asked whether the Respondent
would provide the requested information if the Union
agreed to the Respondent’s proposal. Wilgoren said
‘‘no.’’
The judge concluded that while, as a general matter,
parties involved in collective bargaining are required to
furnish relevant information to each other, the informa-
tion requested by the Union here was not sufficiently
relevant to require disclosure. We disagree.
It is well settled that good-faith bargaining encom-
passes a party’s right to relevant information for use
in the collective-bargaining process. S. L. Allen & Co.,
1 NLRB 714, 727–728 (1936). Here, the Respondent
proposed a pension plan linked to its net pretax profits,
and the information requested by the Union was rel-
evant and necessary to the Union’s need to know what
the Respondent meant by net ‘‘pre-tax profits,’’ how
such a figure was derived, and whether such a figure
was subject to manipulation by the Respondent. Such
questions were not answered by the financial summary
that the Respondent gave the Union. To the contrary,
the financial summary illustrated the need for such in-
formation, given the wide fluctuations in the Respond-
ent’s net profits in the past 4 years, as well as in the
categories enumerated by the Respondent from which
the net profit figures were derived.
In concluding that the requested information was not
relevant, the judge opined that ‘‘the Union never enter-
tained any serious thought of accepting the company’s
profit plan.’’ The record indicates otherwise. At points
769CIRCUIT-WISE, INC.
in the negotiations, the Union, in fact, offered to ac-
cept a profit-based pension plan based on gross profits,
and the union representatives, Lambiase and Hart,
asked whether the Respondent would provide the re-
quested information if the Union agreed to the Re-
spondent’s proposal. The judge conceded that, if the
Union had accepted the Respondent’s proposal, the Re-
spondent would have been obligated to furnish the re-
quested information. Given the proposition that the in-
formation would be relevant once the proposal is ac-
cepted, it is difficult to escape the conclusion that it
is relevant to the Union’s evaluation of the proposal
before acceptance. We find no logical or legal basis
for requiring a party to accept a proposal before being
given a chance to review information that is relevant
and necessary to its evaluation.
Accordingly, we find that the Respondent violated
Section 8(a)(5) and (1) by refusing to furnish the
Union with financial information it requested in con-
nection with the Respondent’s proposal for a profit-
based retirement plan.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Circuit
Wise, Hartford, Connecticut, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(d).
‘‘(d) Refusing to furnish to the Union information
about average lots and yield for fiscal year 1989 and
customer returns which information is relevant to the
Company’s proposed Quality Bonus Plan.’’
2. Insert the following as paragraphs 1(n), (o), and
(p) and reletter the subsequent paragraph accordingly.
‘‘(n) Excluding the Union from the Company’s
problem-solving procedure and dealing directly with
employees regarding their grievances.
‘‘(o) Denying union representation to employees in
its problem-solving procedure.
‘‘(p) Failing to furnish to the Union information re-
quested by it in its letters dated January 30, 1989, and
February 8, 1989, regarding the Respondent’s proposal
for a profit-based retirement plan.’’
3. Substitute the following for paragraphs 2(h) and
(i).
‘‘(h) On request, furnish to the Union the informa-
tion found to be unlawfully withheld.
‘‘(i) Make whole, with interest, any employees who
as a result of the change in work schedules in June
1989, lost overtime pay and for whom recognition was
unlawfully withdrawn.’’
4. Insert the following as paragraph 2(m) and re-
letter the subsequent paragraphs accordingly.
‘‘(m) On request of the Union, set aside the griev-
ances which were unilaterally adjusted by the Re-
spondent in its problem-solving procedure.’’
5. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT prevent a union-designated employee
from speaking with or questioning other employees
during safety inspection tours conducted by the Occu-
pational, Safety and Health Administration (OSHA).
WE WILL NOT refuse to allow a union-designated ex-
pert visit the plant for the purpose of making a safety
inspection.
WE WILL NOT fail to timely furnish to the Union the
following information after the strike commenced;
(1) Rates of pay, job classifications and dates of
hire of replacement employees.
(2) Rates of pay and classifications of all employ-
ees permanently transferred into bargaining unit
jobs.
(3) Names of any bargaining unit employees ter-
minated since 8/30/89 and the reasons therefore.
WE WILL NOT refuse to furnish to the Union infor-
mation about average lots and yield for fiscal 1989 and
customer returns which information is relevant to the
Company’s proposed Quality Bonus Plan.
WE WILL NOT withdraw recognition from a portion
of the bargaining unit encompassing waste water treat-
ment technicians.
WE WILL NOT unilaterally increase employee con-
tributions for health insurance benefits.
WE WILL NOT unilaterally change work schedules of
our employees.
WE WILL NOT enforce a no-solicitation rule dispar-
ately and discriminatorily against employees who en-
gage in union solicitations and activities.
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge employees, issue warnings,
suspensions, or other disciplinary actions to employees
because of their union or protected concerted activities.
WE WILL NOT refuse to give employees deserved job
evaluation ratings and concomitant merit raises be-
cause of their union or protected concerted activities.
WE WILL NOT notify employees that their absences
are not excused in circumstances where we have been
given advance notice that such employees will be at-
tending union meetings and in the absence of a dem-
onstrated need for such employees to be at work.
WE WILL NOT fail to pay accrued vacation benefits
to employees because they are engaged in a strike.
WE WILL NOT exclude the Union from our problem-
solving procedure and deal directly with employees
with regard to their grievances.
WE WILL NOT deny union representation to employ-
ees under our problem-solving procedure.
WE WILL NOT refuse to furnish to the Union infor-
mation requested to evaluate the Company’s proposed
pension plan.
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, on request, bargain with the Union as the
exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full time and regular part time production and
maintenance employees employed by the em-
ployer at its North Haven Connecticut facility in-
cluding employees involved in the production of
products for Mint-Technologies, Inc., chemical
technicians and waste water treatment technicians;
but excluding all other employees, lead persons,
office clerical employees and guard, professional
employees and other supervisors as defined in the
Act.
WE WILL offer immediate and full reinstatement to
Margaret Lewis and Lennora Daniels to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed,
and WE WILL make them whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them.
WE WILL rescind the 3-day suspensions of Lonnie
Hailey and Rose Puccino and make them whole, with
interest, for any loss of earnings or other benefits they
may have suffered.
WE WILL remove from our files any references to
the unlawful discharges, suspensions, and warnings re-
spectively given to Margaret Lewis, Lennora Daniels,
Lonnie Hailey, Rose Puccino, Frank Blazi Jr., and
Javier Cruz, and notify these employees, in writing,
that this has been done and that the disciplinary actions
will not be used against them in any way.
WE WILL change our records regarding Joseph
Wingate to reflect that his absence on February 24,
1989, was excused.
WE WILL change the May 1989 evaluation of Frank
Blazi Jr., to outstanding and make him whole, with in-
terest, for any loss of earnings or benefits that he suf-
fered.
WE WILL, on request, meet with the Union to decide
on reasonable times and places when the Union can
have its designated health and safety expert visit and
inspect the plant.
WE WILL, on request, furnish to the Union, the in-
formation found to have been unlawfully withheld.
WE WILL make whole, with interest, any employees
who, as a result of the change in work schedules in
June 1989, lost overtime pay and for whom recogni-
tion was unlawfully withdrawn.
WE WILL reimburse all employees, with interest,
from March 1, 1989, for the increased contributions
deducted from their pay for medical benefits. In the
event that the Union wishes to revoke the May 1989
interim agreement, we will reimburse the employees
for their share of the increased medical coverage con-
tributions from March 1, 1989, until such time as a
new interim agreement regarding medical benefits is
reached, or until a final collective-bargaining agree-
ment is reached, or until we bargain in good faith until
impasse about medical coverage, whichever comes
first.
WE WILL offer to the strikers on application, rein-
statement to their former or substantially equivalent
jobs without prejudice to their seniority or any other
rights and privileges, and dismiss if necessary any
strike replacements hired after the strike commenced
on September 11, 1989.
WE WILL, on request of the Union, set aside any
grievance which was unilaterally adjusted in our prob-
lem-solving procedure.
CIRCUIT-WISE, INC.
Michael A. Marcionese, Esq. and Thomas Quigley, Esq., for
the General Counsel.
Howard I. Wilgoren, Esq., for the Respondent.
Jamie L. Mills, Esq. (Rosenblatt & Mills), for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Hartford, Connecticut, on various days from
April 30, 1990, to August 1, 1990. The charges were filed
at various times during the period from June 20, 1988,
through March 6, 1990. Based on these charges a variety of
complaints were issued by the Regional Director of Region
771CIRCUIT-WISE, INC.
1 This person changed his name to Ken Burke. I have used his
original name in this decision only because that is the way that most
of the witnesses referred to him.
2 I grant the General Counsel’s unopposed motion to correct the
transcript, a copy of which is attached hereto as Appendix A (omit-
ted from publication).
34 from August 19, l988, to April 17, 1990. All of the alle-
gations involved in these consolidated proceedings may be
found in the third amended consolidated complaint which
was issued on March 27, 1990, the complaint which was
issued on April 17, 1990, and pursuant to a motion to amend
that was presented at the opening of the hearing. In sub-
stance, the allegations are as follows:
1. That on or about April 21, l988, Respondent distributed
a coupon booklet to employees before an election which had
the effect of threatening layoffs and a plant shutdown if the
employees selected the Union.
2. That on June 15, 1988, Respondent discharged Margaret
Lewis and thereafter refused to allow her to participate in its
problem-solving procedure because of her union activity.
3. That since June 16, l988, Respondent has refused to
allow union representatives to be present at meetings be-
tween management and employees held under the Respond-
ent’s problem-solving procedure and has thereby bypassed
the Union when dealing with employees regarding their
grievances.
4. That since June 16, l988, Respondent has refused to
meet with designated shop stewards of the Union for the pur-
pose of resolving grievances.
5. That on or about January 31, 1989, the Respondent
withdrew recognition and refused to bargain with the Union
regarding a portion of the bargaining unit classified as main-
tenance service operators and waste water treatment techni-
cians.
6. That on or about January 31, l989, the Respondent uni-
laterally reassigned work from the maintenance service oper-
ators to waste water treatment technicians.
7. That on or about February 17, 1989, Respondent by
Thomas McMahon and Shelly Albino engaged in surveil-
lance of union and concerted activity.
8. That on or about February 20, 1989, Respondent by
Ken Borkowski1 disparaged the Union.
9. That on or about February 23, l989, Respondent sus-
pended Jesus Agosto because of his union activities.
10. That on or about February 24, 1989, Respondent by
Merle Ames prevented union representatives from talking to
employees.
11. That on February 27, l989, Respondent discharged
Jesus Agosto because of his union activities.
12. That on February 27, l989, Respondent issued a verbal
warning to Frank Blaze for violating an unlawful rule prohib-
iting employees from discussing union matters on company
time.
13. That on February 27, 1989, Respondent issued warn-
ings to Frank Blazi and Javiar Cruz because of their union
activities.
14. That on February 27, l989, Respondent charged an un-
excused absence to Joseph Wingate because of his union ac-
tivities.
15. That on February 28, l989, Respondent issued a warn-
ing to Lonnie Hailey because of his union activities.
16. That on or about March 1, 1989, the Respondent uni-
laterally implemented an increase in employee contributions
to Blue Cross.
17. That on April 24, l989, Respondent discharged Lenora
Daniels because of her union activities.
18. That on May 3, l989, Respondent issued a warning to
Lonnie Hailey because of his union activities.
19. That on May 5, l989, Respondent discharged Jeremiah
Samuel, Jr, because of his union activities.
20. That on May 5, l989, Respondent suspended Rose
Puccino because of her union activities.
21. That on May 11, l989, the Respondent unilaterally im-
plemented a procedure for laying off and/or transferring em-
ployees from a related company called Mint-Pac Tech-
nologies.
22. That on May 11, 1989, Respondent laid off Rose
Puccino from Mint-Pac and offered her another more onerous
job at Circuit-Wise because of her union activities.
23. That the actions of Respondent described above in
paragraph 22 amounted to a constructive discharge of
Puccino.
24. That on May 11, 1989, Respondent laid off Lonnie
Hailey from Mint-Pac and offered him a more onerous job
at Circuit-Wise because of his union activities.
25. That on May 25, 1989, Respondent refused to give
Frank Blazi an outstanding job rating because of his union
activities.
26. That on or about June 6, l989, Respondent told em-
ployees that they would receive higher job ratings if they did
not engage in union activities.
27. That Respondent has at all material times refused to
provide certain information (described below) which was rel-
evant for bargaining.
28. That on September 6, 1989, the Respondent has un-
lawfully denied access to a union agent for the purpose of
inspecting its facility for health and safety.
29. That a strike which commenced on September 11,
l989, was an unfair labor practice strike.
30. That Respondent withheld accrued vacation benefits to
the strikers.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. FINDINGS AND CONCLUSIONS
A. Preelection Conduct
The Union’s organizing drive began in the autumn of 1987
and a petition was filed leading up to an election on May
13, 1988. Pursuant to a Decision and Direction of Election
dated April 14, l988, the bargaining unit was defined as in-
cluding:
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full time and regular part time production and
maintenance employees employed by the employer at
its North Haven Connecticut facility including employ-
ees involved in the production of products for Mint-
Technologies, Inc., and chemical technicians; but ex-
cluding all other employees, lead person, office clerical
employees and guard, professional employees and other
supervisors as defined in the Act.
During the preelection period the Company issued to em-
ployees a piece of propaganda consisting of a coupon booklet
which among other things said:
To protect yourself against wild promises by paid
union organizers, make them sign each promise!
I Guarantee: there will be no lay-offs regardless of
whether or not your company has work to do; and my
union will not sign a contract permitting your company
to lay off or terminate employees. If they do, the union
will be liable.
I Guarantee: my union will pay for the support of
your family and all of their expenses if you are thrown
out ofwork because of union strikes or plant shutdown.
As noted above, the General Counsel contends that the
above constitutes an unlawful threat of layoffs and plant
shutdown if the Union were to be selected by the employees.
I do not agree. At most the assertions merely express the
opinion that no union can guarantee that people will not be
laid off or that plant shutdowns may not occur in the future.
Consequently I do not view these statements as constituting
threats, particularly in light of the fact that no other contem-
poraneous unfair labor practices were alleged or shown. See
Leyendecker Paving, 247 NLRB 28, 36 (1980), where the
Board dismissed an 8(a)(1) allegation on facts substantially
similar to those described above.
B. Overview
Notwithstanding the above, the Union obtained a majority
of the votes and it was certified as the exclusive collective-
bargaining representative on May 31, l988. Negotiations
commenced on June 9, l988.
In all, there were more than 30 bargaining sessions from
June 9, l988, until August 1, l989, when after having made
a final offer, the Respondent declared an impasse.
During the negotiations the Union’s chief spokespersons
were Union Representatives Al Hart and Carol Lambiase in
his absence. The chief spokesman for the Company was At-
torney Howard Wilgoren.
On September 11, l989, the Union commenced a strike
which was still in progress during the hearings. Thus, no
strikers have made unconditional offers to return to work.
C. Allegations Relating to Grievance Handling
Procedures
For some time prior to the arrival of the Union, the Com-
pany maintained a problem-solving procedure. Pursuant to
this procedure, an employee with a complaint (typically con-
cerning disciplinary action), could bring his ‘‘grievance’’
through a series of steps from the department manager, to the
personnel manager, to the vice president of manufacturing,
and ultimately to the president of the Company.
When bargaining began, the Union proposed that there be
created an interim grievance procedure until a contract was
reached. This was rejected by Respondent which indicated
that it already had its own problem-solving procedure. At no
time did the Union insist that the Company cease using its
problem procedure. Rather, as set forth below, it was the
Union’s position that the Company was obligated to allow
union appointed representatives be present when the Com-
pany’s problem-solving procedure was utilized by employees.
(The evidence indicates that the Company bargained in good
faith regarding the subject of a grievance procedure to be in-
cluded in a contract if such a contract was reached.)
Commencing with the discharge of Margaret Lewis, in
June 1988, the Union on various occasions sought have its
representatives accompany employees to meetings set up in
relation to the problem-solving procedure. On all such occa-
sions the Employer refused to allow union representatives to
accompany the affected employee and refused to hold a
meeting with the employee if he or she insisted on having
the Union present.
On June 16, l988, Union Agent Hart sent a letter to
McMahon stating:
[T]he Union is protesting your refusal to allow me to
represent Margaret Lewis in a meeting with Manager
Bill Abbate regarding her discharge. It is the Union’s
contention that employees have a right to such rep-
resentation, and we reiterate our request that the com-
pany meet with Ms. Lewis and a Union representative
to discuss her discharge.
On June 16, l988, Wilgoren responded:
Margaret Lewis was discharged in accordance with
existing Company rules for disseminating false and de-
rogatory rumors concerning co-workers.
Ms. Lewis did not have the right to insist on your
presence at a meeting she requested with her former de-
partment manager. The meeting was scheduled at Ms.
Lewis’ request in accordance with the Company’s Prob-
lem Solving procedure. The purpose of this meeting
was not investigatory, and there were accordingly no
rights of union representation. Similarly, the union’s
status as . . . bargaining representative does not in and
of itself give you the right to be present at any meeting
requested by an employee.
I am certain that once we have a collective bargain-
ing agreement it will provide for a complete grievance
procedure that will include union representation at the
various steps. Until that time, the Company will con-
tinue to follow its existing Problem Solving Procedure.
In relation to the discharge of another employee in August
1988, the Union again attempted without success to have a
union representative accompany the employee to a meeting
under the problem-solving procedure. In a letter dated Au-
gust 29, 1988, after advising of the reasons for the employ-
ee’s discharge and responding to certain requests for infor-
mation, Wilgoren advised union agent Carol Lambiase inter
alia, that:
This letter will confirm our telephone discussion of
August 23, 1988 with respect to the termination of
773CIRCUIT-WISE, INC.
Mary Silver . . . . As you well know, I have been des-
ignated by the Company as its collective bargaining
representative. Accordingly, it is appropriate for you to
direct all requests for information or other matters to
me. I would appreciate if you would do so in the fu-
ture. As we discussed, Ms. Silver was terminated . . . .
. . . .
You also asked whether the Union could be present
at the Company’s Problem Solving Procedure. I am not
aware that Ms. Silver requested any such meeting. In
any event, the Company intends to continue to exclude
any non employees from the Problem Solving Proce-
dure as it has consistently done in the past. Once we
complete negotiations for our contract, I am sure that
it will contain an effective grievance procedure which
will include involvement by Union representatives. in-
deed, the Company has made such a proposal. How-
ever, until we conclude a contract, the company intends
to maintain the status quo in this regard.
Subsequently while the Union continued to press the Com-
pany to allow its representatives to be present during the
problem-solving procedure, the Company has consistently re-
fused and has indicated that it was willing to discuss indi-
vidual grievances through its attorney before the commence-
ment of scheduled bargaining sessions.
In January l989 the Union decided to establish a shop
steward system to handle grievances. Accordingly, stewards
were elected and the Company was notified on January 31,
1989, as to who those stewards were. At the same time the
Union prepared union grievance forms to be used by its
stewards. When those shop stewards thereafter attempted to
file grievances, they were rejected by the employer. Super-
visors were instructed by the Company not to meet with or
accept grievances from the the designated union stewards
and that if an employee wanted to have a meeting under the
problem-solving procedure, he or she could only have such
a meeting without the presence of a union representative. In
short, the Company refused to accept the Union’s attempt to
impose unilaterally, a grievance procedure in which super-
visors would have to deal with shop stewards. Instead, the
Company insisted that all employee grievances be dealt with
through its Attorney Howard Wilgoren.
From the above the General Counsel posits that the Re-
spondent violated Section 8(a)(5) by:
1. Refusing to allow stewards and other designated union
representatives to represent employees.
2. Refusing to allow union representatives to be present
during meetings with employees during meetings with em-
ployees in the employer’s problem-solving procedure.
3. Dealing directly with employees regarding individual
grievances.
When a union has been designated as the employees’ ex-
clusive bargaining representative, the employer must deal di-
rectly and exclusively with the union regarding wages, hours,
and other terms and conditions of employment. It therefore
may not deal directly with its own employees regarding such
subjects. In Medo Photo Supply Corp v. NLRB, 321 U.S. 678
(1944), Court stated:
Petitioner, by ignoring the union as the employees’
exclusive bargaining representative, by negotiating with
its employees concerning wages at a time when wage
negotiations with the union were pending, and by in-
ducing its employees to abandon the union by prom-
ising them higher wages violated Section 8(a)(1) of the
Act . . . .
That it is a violation of the essential principle of col-
lective bargaining and an infringement of the Act for
the employer to disregard the bargaining representative
by negotiating with individual employees, whether a
majority or a minority, with respect to wages hours and
working conditions was recognized by this Court in J.I.
Case Co. v. Labor Board.
Nevertheless, by statute a limited exception is made for in-
dividual grievances. Section 9 of the Act states inter alia;
Representatives designated . . . for the purposes of col-
lective bargaining . . . shall be the exclusive represent-
atives of all the employees in such unit . . . Provided,
That any individual employee or group of employees
shall have the right at any time to present grievances
to their employer and to have such grievances adjusted,
without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with
the terms of a collective bargaining contract or agree-
ment then in effect: Provided further, That the bar-
gaining representative has been given opportunity to be
present at such adjustment.
In the present case, the Employer had a preexisting proce-
dure whereby employees who received discipline could ap-
peal those actions. Once its bargaining status was estab-
lished, the Union did not ask that this procedure be elimi-
nated. Instead the Union unsuccessfully sought to get the
Employer to agree to modify it.
There clearly would have been a violation of the Act had
the Employer continued to insist on settling individual griev-
ances without giving the Union an opportunity to be present.
That however was not the facts in this case. On the contrary,
when an employee or the union insisted on union representa-
tion during the problem-solving procedure, the Employer
ceased meeting with the employee and thereby ceased any
‘‘direct dealing.’’ Cf. Kaiser Foundation Health Plan, 269
NLRB 741 (1984).
As a corollary to the obligation to bargain, each side, ex-
cept in extraordinary circumstances, can designate the indi-
viduals it wishes to represent them. Correspondingly, neither
side can force the other to designate certain individuals to
represent it. Frankline, Inc., 287 NLRB 263 (1987).
Whatever the merits of the Union’s proposed interim
grievance procedure, I do not think that the Act requires the
Employer to consent to such a procedure pending the final-
ization of a collective-bargaining agreement. While an em-
ployer is required by law to bargain about and deal with the
Union in relation to employee grievances, it seems clear that
the law does not require the employer to agree to any par-
ticularized procedure for accomplishing that result. It is suffi-
cient under Section 8(a)(5) for the Employer to be willing to
bargain in good faith at reasonable times and places. By the
same token, I don’t see how the Union can compel the em-
ployer to select who will deal with grievances on the em-
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Sec. 8(b)(1)(B) of the Act makes it an unfair practice for a union
to restrain or coerce ‘‘an employer in the selection of his representa-
tives for the purposes of collective bargaining or the adjustment of
grievances.’’
4 If the Company chooses to have its attorney handle all grievances
at all levels, then I think it must make him available with sufficient
promptness and frequency to deal with individual grievances as they
arise. Also, as it is my opinion that the Union would have the right
to select certain employees as its representatives for grievance-han-
dling functions, it may be that the obligation to meet at reasonable
times and places might entail, in some instances, having such discus-
sions in the plant during regular working hours. Of course, as the
issue was not framed this way, these comments should be construed
as dicta.
ployer’s behalf.3 Yet by its actions in January 1989, this is
precisely what the Union attempted to do. When it selected
shop stewards and gave them instructions as to how and to
whom to present grievances, those actions if acceded to,
would have required the Company to select its bargaining
representatives in accordance with the Union’s desires.
It may be that the Company’s selection of its attorney to
bargain about grievances placed a burden on the process of
negotiating a contract. It may also be that by dealing with
grievances in this fashion, an argument might have been
made (depending upon the number and extent of pending
grievances), that the Employer failed to meet at reasonable
times and places. Nevertheless, the Union did not make such
an argument and it is my opinion that if the Company chose
Wilgoren as its representative in dealing with grievances, the
Union was required to deal with him on this subject and
could not force the employer to select supervisors or anyone
else to be company representatives. That is, although the
Company would be required to deal with the Union’s des-
ignated shop stewards, it can choose to do so through its at-
torney and not through its regular supervisory staff. As the
evidence shows that the Company through its attorney did
deal with grievances, and as there was insufficient evidence
to establish that he did not meet at reasonable times and
places, I do not think that the evidence is sufficient to estab-
lish in these circumstances that the Employer refused to bar-
gain with the Union about grievances.4
D. Allegations Relating to Health and Safety
In the process of making circuit boards, copper and other
metals are released in the water. Also, the process involves
the use of a number of toxic chemicals. In this regard, com-
pany representative Michelle Albino testified that about 70
percent of the employees come into proximity with dan-
gerous chemicals on a daily basis.
Pursuant to a union complaint, representatives of the Oc-
cupational Safety and Health Administration (OSHA) visited
the plant from February 17 to February 20, 1989. This in-
spection was principally in relation to an explosion that had
occurred in the HASL department. In accordance with Fed-
eral Regulations, an employee is entitled to accompany the
inspection and where a union represents the employees, the
inspector usually has a union-designated employee accom-
pany him or her during the inspection.
Janet O’Donnell was one of the OSHA inspectors who vis-
ited the plant in February 1989. Prior to her visit she was
not informed as to which employee the Union wished to
have designated to accompany her on the inspection. There-
fore, according to O’Donnell, when she arrived at the plant
on February 17 and asked if there was a union or union rep-
resentative who could accompany her, she was told that al-
though the Company and the Union were in the middle of
bargaining the Company did not recognize the Union. She
further testified that she was told that the Union had selected
stewards but that the Company did not recognize them be-
cause there was no contract and no grievance procedure had
been agreed to.
In any event, on or about February 18, the Union notified
the Company that employee Lonnie Hailey was designated as
its safety representative. When the OSHA representative was
similarly notified, the OSHA inspectors, accompanied by
Hailey, walked around the plant and interviewed employees
in various departments on February 19 and 20.
In relation to the above, the General Counsel alleges that
the Respondent committed an independent 8(a)(5) violation
by telling the OSHA representative that it didn’t recognize
the Union. I don’t agree. Although I do not dispute
O’Donnell’s veracity, I think that she has confused two sepa-
rate concepts and did not quite understand the notification
that she was given by the Company. Clearly, the Company
in acknowledging that the Union had won an election and
that there was bargaining in progress, did not intend to con-
vey the message that it did not recognize the Union as the
employees’ representative. At most, it is my opinion that
O’Donnell was told that the Company did not recognize the
Union’s shop stewards in the absence of an agreed-upon
grievance procedure and that the Company had not been ad-
vised by the Union (which had filed the OSHA complaint),
as to which employees it wished to designate as its safety
representatives.
In relation to this inspection, the General Counsel contends
that the Company by McMahon and Albino engaged in sur-
veillance of interviews being conducted by the OSHA in-
spectors and that the Company interfered with Section 7
rights by telling Hailey that he could not talk to employees
during the OSHA interviews.
There was evidence that an interview with an employee
was conducted by the OSHA representatives and Hailey in
a glass-enclosed supervisor’s office on the production floor.
Company Representatives McMahon and Albino who also
went along on the tour were, however, not allowed by the
Government agent to participate in the interview. They there-
fore remained outside the office, albeit able to see into the
office because of the window. At one point, according to
O’Donnell, Hailey indicated to her that the company rep-
resentatives were looking into the room. Further she states
that after the interview, McMahon said that he saw Hailey
moving his lips, indicating his displeasure that Hailey was al-
lowed to participate actively in the interview.
Assuming that McMahon and Albino on one occasion
looked into the room during an interview, I do not think that
this is sufficient evidence of unlawful surveillance under the
Act. The interview took place on company property in a
room which, because enclosed by glass, was visible from the
outside. No one told the Company’s officials either before or
during the interview to leave the area, and there is no evi-
dence that they would not have complied had such a sugges-
tion been made. In these circumstances, I therefore conclude
that this allegation lacks merit. See Porta Systems Corp., 238
NLRB 193 (1978).
775CIRCUIT-WISE, INC.
On the other hand, the credible evidence shows that during
this February inspection tour when Hailey attempted to ask
another employee in the HASL department a question, Su-
pervisor Merle Ames shouted. ‘‘You’re not going to say any-
thing to anyone over here, and if you do, you’re going to
get out of here.’’ As the inspection tour dealt with safety
questions, it clearly involved terms and conditions of em-
ployment. Moreover, as Hailey had been designated by the
Union to be its representative during the OSHA inspection
tour, the attempt by Ames to prohibit Hailey from talking to
other employees during the tour constituted, in my opinion,
interference with rights protected by Section 7 of the Act. As
such I conclude that Respondent by this conduct violated
Section 8(a)(1) of the Act.
As noted above, the processes by which the Company
makes its products are probably inherently dangerous. That
is the creation of these circuit boards requires the use caustic
and toxic chemicals. Moreover, in the past there have been
a number of instances where chemical spills have occurred
which had the potentiality of peril. From time to time, in-
spections have been made by OSHA and in addition to the
one described above, another inspection was made in July
l989.
The Union employs a person named Billy Holden as its
health and safety specialist. In July l989 at a bargaining ses-
sion, the Union asked that Holden be allowed to accompany
the OSHA inspectors during a tour of the plant. This request
was made as it was believed that Holden had a degree of ex-
pertise that employees could not match. The Company re-
jected this idea, insisting that the only persons it was re-
quired to allow accompany the OSHA officials were persons
employed by the Company.
On August 25, 1989, Carol Lambiase wrote to Company
Representative David Schumacher as follows:
I am requesting that you grant access to Field Orga-
nizer Billy Holden, the Union’s health and safety spe-
cialist, into Circuit-Wise to observe and survey health
and safety hazards at the plant.
Numerous investigations by OSHA have shown that
there are many serious violations of the law which
jeopardize the health of the workers. Spills of toxic
chemicals are commonplace, potentially fatal accidents
occur with regularity, and chronic exposure to neuro-
toxic, carcingenic, and ergonomic hazards abound. We
believe that it is within the employees’ representational
rights as determined by the NLRB to allow the Union
to ascertain the extent of potential hazards within the
plant. We further believe that such an inspection by Dr.
Holden would occasion little if any interference or dis-
ruption of the production process. As evidenced by
OSHA, the health and safety provisions at Circuit-Wise
are clearly inadequate to safeguard against many of the
hazards present.
Dr. Holden, a Columbia and Yale trained occupa-
tional epidemiologist, has the necessary expertise to
conduct such a survey. Due to the nature of the indus-
try—the solvents and other toxic chemicals used therein
and the hazardous working conditions—an opportunity
for the Union to observe the health hazards is consid-
ered by us to be warranted. Again, such an opportunity
would cause no undue hardship or inconvenience to the
Company.
We would like to schedule the survey to begin on
Thursday, September 31, 1989.
On September 6, 1989, Howard I. Wilgoren responded as
follows:
That letter [to Mr. Schumacher dated August 25, 1989],
is replete with falsehoods and other statements wholly
unsupported by ascertainable fact. Accordingly, your re-
quest is denied. If you have any concrete basis for the
spurious and unsubstantiated allegations contained in
your letter of August 25, 1989, please forward same to
the undersigned. Otherwise, you are strongly advised to
refrain from making such irresponsible and undocu-
mented charges in the future.
In my opinion, Hercules, Inc., 281 NLRB 961 (1986),
enfd. 833 F.2d 426 (2d Cir. 1987), is dispositive of this issue
and compels the conclusion that the employer violated the
Act in this regard. In that case, the Union asked to have an
expert visit the plant to make an inspection after the occur-
rence of an explosion. The Company refused and similar to
the present case asserted among other things that OSHA had
inspected the plant and that such an inspection was suffi-
cient. Unlike the facts of the instant case, Hercules asserted
that such an inspection would compromise secret manufac-
turing processes. The court, in enforcing the Board’s Order
stated:
When the union requests not only information but
also access to the employer’s property in order to ob-
tain health and safety information, the Board balances
the employee’s right to information against the employ-
er’s property rights. Holyoke Water Power Co., 273
NLRB 1369 enfd. sub nom. NLRB v. Holyoke Water
Power Co., 778 F.2d 49 (1st Cir. l985) cert. denied 106
S.Ct. 3274 (1986).
An employer’s property rights must yield when ‘‘re-
sponsible representation of employees can be achieved
only by the union’s having access to the employer’s
premises.’’
In Holyoke, the Board amended [Winona Industries],
257 NLRB [695], and adopted in its place the current
balancing test, which was originally formulated in
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (l956).
When union organizational rights were at issue, Bab-
cock & Wilcox employed a balancing test to resolve
union access to company property. But the unanswered
question is whether—when union representational rights
are at issue—the Babcock & Wilcox rationale applies in
the Section 8(a)(5) context. The fact that a bargaining
relationship already exists makes union access consider-
ably less intrusive on an employer’s property rights,
and thus arguably justifies the application of the more
lenient Winona standard in determining whether to
grant access . . . .
Unlike the cases above, the Company in the instant
case raises a property interest encompassing more than
just the bare right to exclude people from its premises.
Rather the Union’s request for access threatens Her-
cules’ significant property interest in its secret manufac-
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
turing processes and . . . it is therefore appropriate to
employ the Babcock & Wilcox balancing test.
Hercules makes several arguments which it claims
tip the scales in its favor . . . . First, it points to its
proprietary interest in highly confidential . . . produc-
tion techniques . . . . The Board’s order similarly was
conditioned on the Union’s signing a trade secret agree-
ment. We believe this condition adequately protects the
Company’s proprietary interest.
Second, the Company argues that there were effec-
tive alternatives to direct physical access . . . . Requir-
ing total reliance on Company data would in effect
place the Union at the mercy of the Company . . . .
Such total reliance would be even more disagreeable in
the present circumstances, where the explosions raised
safety questions implicating not only the employees’
health but their lives as well.
Third, Hercules questions the qualifications and com-
petence of the Union’s industrial hygienist. Although
the hygienist admitted that he had little experience in-
vestigating explosions or testing and analyzing the
chemical compounds involved . . . his testimony . . .
leads to a reasonable inference that he was capable of
investigating the matter.
Fourth, the Company points to the disruption in its oper-
ations that access would cause. Again, the Board’s Order al-
lays this concern. The limitation that access be allowed only
for reasonable periods and at reasonable times permits Her-
cules to negotiate in order to ameliorate any inconvenience
it might experience.
E. Refusal to Furnish Information Allegations
Although the evidence shows that during the negotiations
there was a great deal of information that passed between the
Union and the Employer, there are several discreet areas
where it is alleged that the Union requested information that
the Company refused to furnish. All of these involve some-
what unusual issues.
1. Request for profit/loss information
On September 22, 1988, the Company proposed a retire-
ment plan which was to be funded by paying 2 percent of
pretax profits. This was in response to the Union’s demand
for a pension plan calling for the Company to pay a fixed
and determined amount to a fund.
Regarding the differing approaches to this issue, the evi-
dence indicates that the Union never seriously considered ac-
cepting the Company’s proposal because if adopted, it would
have meant that payments under the plan would be com-
pletely indeterminate from year to year and there would be
no guarantee that any payments would be made. As Union
Agent Lambiase correctly observed, the Company’s pension
proposal was ‘‘like a game of chance.’’
On November 15, 1988, Union Representative Hart re-
quested that the Company produce documentation regarding
its profits since 1985. On November 27, Wilgoren stated that
in l987 the Company’s profits were about $1 million. The
Union responded that the information given was insufficient
and that it wanted the information in writing.
On December 15, 1988, the Company handed over to the
Union a document purporting to be a financial summary for
the years 1985 through 1988. This read:
FY 1988 FY 1987 FY 1986 FY 1985
Net Sales $33,529 $$26,328 $19,650 $36,574
Cost of Sales
Beg Inventory 1,512 1,218 1,624 3,711
Purch Material 10,857 8,261 5,446 11,007
Total labor 6,802 4,513 3,690 6,498
Mfg. Overhead 10,103 8,590 7,168 11,614
Outside Ven-
dor 63 390 252 630
Less End Inv. (2,080) (1,512) (1,218) (1,624)
Cost of Sales 27,257 21,460 16,962 31,836
Gross Profit $6,272 $4,868 $2,688 $4,738
Sell, Gen. &
Admin. Exp. 3,129 3,884 2,792 4,854
Interest &
Other Ex-
penses 774 351 649 1,253
Total Other
Ex. 4,903 4,235 3,441 6,107
Net Profit Pre
Tax $1,369 $633 ($753) ($1,369)
At a negotiation session held on January 4, 1989, the
Union’s representatives stated that they did not completely
understand the document; asking what was included in total
labor, overhead, selling, interest, other expenses, and general
and administrative expenses. Wilgoren responded that total
labor included inter alia supervision; and that the category
sell, gen. & admin. exp. included salaries of executives,
salespeople, and personnel employees. When Hart then de-
manded to know what the salaries were of the sales people,
the owners and the executives, Wilgoren replied that such in-
formation was not relevant. Hart then stated that as the Com-
pany was a closed corporation not required to make public
disclosure, and as the Company’s summary was generalized
and showed large fluctuations in net profits and losses from
year to year, the Union needed to know specifically how the
Company accounted for its net profits and how it derived
those figures. Hart stated that the Union could not respon-
sibly judge the Company’s pension proposal without more
information and expressed the fear that the Company could
hide profits. Wilgoren responded that information setting
forth the salaries of the owners and nonunit personnel was
none of the Union’s business.
At the negotiation session held on January 26, 1989, the
Union again put forward its pension proposal calling for a
fixed level of contributions. Wilgoren on behalf of the Com-
pany stated that it would not agree to such a plan and that
the Company would only agree to a pension plan where con-
tributions were tied to profits.
On January 30, 1989, Carol Lambiase sent a letter to the
Company reading:
777CIRCUIT-WISE, INC.
5 See also E. W. Buschman Co. v. NLRB, 820 F.2d 206 (6th Cir.
1987); Steelworkers Local 5571 v. NLRB, 401 F.2d 434, 436 (D.C.
Cir. 1968); Clemson Bros., 290 NLRB 944 (1988); American Model
& Pattern, 277 NLRB 176 (1985); Advertisers Mfg. Co., 275 NLRB
100 (1985); Havestone Mfg. Corp., 272 NLRB 939 (1984).
6 My opinion would be completely different had the Union actually
agreed to a pension plan where contributions were based on profits.
In such a circumstance, and for purposes of enforcing such a con-
tract, the Union would clearly be entitled to detailed financial infor-
mation because the issue then would be the extent to which the
Company had profits upon which contributions would be due and
owing. Moreover, in such a circumstance, I think that the Union
would be entitled to have its own accountants examine the Com-
pany’s original books and records.
In order to properly evaluate the Company’s profit
sharing pension proposal, and enable the union to make
a serious counter-proposal, the union needs a copy of
the balance sheet and the funds flow statement for the
last four years. Without these, the income statement is
of little use, and is subject to distortions based on ac-
counting conventions that make interpretation a guess-
ing game.
In addition, in order to properly interpret the income state-
ment previously supplied, the following questions have aris-
en:
1) Does this statement include consolidated subsidi-
aries and joint ventures?
2) How much of manufacturing overhead is depre-
ciation, and how much is real cash expense?
3) What is included in selling, general and adminis-
trative expense?
4) What is included in ‘‘other’’ expenses?
5) What percentage of the the Total labor items is
the unionized work force?
The Union’s letter of January 30 was thereafter followed
up by an additional letter dated February 8, 1989, calling for
additional information. This read:
Because your pension proposal is based on ‘‘net’’
profit, we need the following information, plus the
clarifications listed in our previous letter or January 30,
l989 . . . .
1) Regarding interest payments-who holds the loan
and at what rate?
2) How much rent is paid and to whom?
3) Over how many years and what accounting meth-
od is used for depreciation?
4) How many sales-persons, clericals or other admin-
istrative positions are there, how many managers are
there, and what are their salaries?
5) Please list each item included in selling, general
and administrative expense and ‘‘other’’ expenses and
the amount of money for each one.
To avoid any confusion of the matter we would ap-
preciate a written response.
At a meeting on February 16, Wilgoren made an oral re-
sponse to the two union letters. He stated the requests insofar
as they called for information regarding loans and rents were
irrelevant. As to depreciation he stated that this was done in
accordance with generally accepted accounting principles.
Wilgoren stated that information regarding the salaries of
nonunit employees was irrelevant and that having set forth
what the Company meant by selling, general, administrative,
and other expenses, he was not going to give any more infor-
mation on that subject. Wilgoren further stated that the finan-
cial information originally given did not include the oper-
ations of Mint-Pac Technologies or Multi-Layer Products
Group, these being two affiliated companies to the Respond-
ent. He also stated that the other questions in the January 30
letter were not relevant. As a general matter, the parties in-
volved in collective bargaining are required to furnish rel-
evant information to each other. This is to aid the bargaining
process and ease the procedure by which agreements are
reached. However, it has been held that financial information
regarding profits and losses are not disclosable unless a
Company pleads inability to pay. NLRB v. Truit Mfg. Co.,
351 U.S. 149 (1956).5 Similarly, a company generally has no
obligation to furnish information regarding the wages and
salaries of nonbargaining unit employees, unless specific rel-
evancy where for example supervisors are shown to perform
substantial amounts of bargaining unit work. Northwest Pub-
lications, 211 NLRB 464, 465 (1974); Ohio Power Co., 216
NLRB 987, 991 (1975).
In my opinion the financial information requested is not
sufficiently relevant as to require disclosure. The Union quite
rightly characterized the Company’s pension proposal as
being one without guarantees. Thus, under the Company’s
proposal, if there were no net profits in any given year, then
no contributions would be made for pensions. The key factor,
from the Union’s point of view would be whether they could
reasonably anticipate that the Company would have future
profits and be in a reasonable position to guess the level of
such profits. But to that end, the Company’s actual past prof-
its or losses are, and could not serve as a guide as to wheth-
er, and to what extent, the Company would have future prof-
its.
I shall assume that the Union had reason to be worried
about the Company being able to manipulate profit figures
when the time came to put up money. Given that assumption
there nevertheless would be nothing to prevent the parties
from bargaining and agreeing on a method by which future
profits would be defined for purposes of pension contribu-
tions. For example, if the Union was worried that the Com-
pany could deduct rents paid to the owners, the Union could
argue that this item should not be counted when defining net
profits. If the Union was concerned about depreciation, it
could bargain to select one of the various methods by which
depreciation is accounted for. In short, the past methods and
procedures by which the Company had determined its net
profits would not prevent or even inhibit the parties from
bargaining over the definition of profits insofar as that term
would be used for pension purposes.
Finally, it is my opinion that the Union never entertained
any serious thought of accepting the Company’s profit plan.
As such, I do not think that the information was really rel-
evant to the Union’s bargaining strategy. I am inclined to
suspect that the Union’s real purpose in demanding the finan-
cial information was not to evaluate the Company’s proposal,
but rather to exercise tactical pressure to get the Company
to accept the Union’s concept for a fixed rate pension plan.6
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Inasmuch as I have concluded that there was an inadequate re-
quest, I need not decide the extent to which and under what precise
circumstances the Company might be required to turn over informa-
tion of a medical nature. Cf. New Jersey Bell Telephone Co., 289
NLRB 318 (1989), for a discussion of the nature and extent of a
company’s obligation to furnish information regarding employee
medical situations. See also LaGuardia Hospital, 260 NLRB 1455
(1982).
2. Request for medical information
Frank Blazi was one of the employees on the Union’s ne-
gotiating team and was designated by the Union as a shop
steward. He testified that on May 4, 1989, he heard that a
ventilation problem had arisen in the PTH area and that an
employee had become sick. Blazi states that on May 5 or 6
he went to the office of John Bartalotta, the vice president
of manufacturing, and asked if Paul LaFontaine had indicated
to them that he had suffered due to chemical exposure. Ac-
cording to Blazi, Bartalotta said it was none of his business.
Blazi also states that when they asked who sent him, he re-
sponded that he took it upon himself to investigate the ill-
ness.
Subsequent to the conversation described by Blazi the
Union did not follow up this ‘‘request’’ with any kind of
written communication. Nor did the Union’s representatives
ever repeat this request at the negotiating table.
In my opinion, the statement by Blazi to Bartalotta did not
amount to a sufficient request which therefore would gen-
erate an obligation on the Company’s part to respond. For
one thing, Blazi’s statement doesn’t really amount to a re-
quest for information, but merely asks if another employee
had expressed an opinion regarding the cause of his illness.
Further, the practice of the parties throughout the negotia-
tions was to present them formally at the bargaining table
and to confirm them in writing through the mail. Under these
circumstances, I therefore conclude that in this respect the
Employer has not violated the Act.7
3. Information regarding employees hired after
the strike
The Union commenced a strike against the Employer on
September 11, 1989, after the Employer tendered what it de-
scribed as its final offer. After the strike began, the Employer
hired replacement workers. On October 2, 1989, the Union
sent a letter to Wilgoren requesting certain information in-
cluding the following:
l) The names and addresses of all new employees
hired since 8/30/89 their rate of pay, hire date and clas-
sification;
2) The names of Circuit-Wise employees temporarily
or permanently transferred to bargaining unit jobs since
8/30/89, their rate of pay and classification.
3) Any changes in benefits or conditions of employ-
ment the company has made since 8/30/89.
4) Any work which has been subcontracted out since
8/30/89 including the name and address of the subcon-
tractor, the type and quality of work.
5) Any changes of address, rate of pay, or classifica-
tion of bargaining unit employees since 8/30/89 as well
as any bargaining unit employees who have been termi-
nated since that time, and reason therefor (quit, retire-
ment, or discharge). Please also list which bargaining
unit employees have been reporting for work since the
strike began.
On October 13, 1989, Wilgoren responded as follows:
1) We will not disclose the names or addresses of
new employees hired since August 30, 1989 in view of
the repeated harassment and threatening conduct which
you and your agents have visited upon our employees
at the picket line and at their homes.
2) Your request number 2 is vague and unclear.
Please advise me specifically the information you re-
quest. Insofar as you are referring to managers or other
non bargaining unit employees performing production
work, such information is not relevant . . . .
3) There have been no changes in benefits or condi-
tions of employment since August 30. As you have
been previously advised, on October 2 the Company
adjusted the wage scales by 2.6% in accordance with
its long standing policy of semi-annual adjustment.
4) The company has not subcontracted out any new
work since August 30. You have been previously ad-
vised of various subcontracting engaged in by the com-
pany prior to that date.
5) The company is in the process of preparing rel-
evant data contained in your request number 5.
Without waiving the company’s position, please ad-
vise as to the relevancy of your request for the names
of all bargaining unit employees who have been report-
ing to work since the beginning of the strike.
On October 23 the Union retorted:
1) We repeat our request for the names and address-
es of all new employees hired since 8/30/89, their rate
of pay, hire date, and classification. This information is
. . . necessary to us in our capacity as . . . representa-
tive and is not for the purpose of ‘‘harassment and
threatening conduct’’ as you imply.
2) Our request #2 applies to all employees tempo-
rarily or permanently transferred to bargaining unit
jobs. This would be the list of employees who pre-
viously performed non-bargaining unit work but are
presently performing bargaining unit work. These
would be workers who would not be on the list of new
hires, and do not appear on previous bargaining unit
lists. We need name and address, rates of pay and clas-
sification.
3) We repeat our request for a description of any
changes in benefits or conditions . . . since 8/30/89.
We understand . . . that the company has instituted a
policy of free food in the cafeteria, a flex-time policy
and even has set up special quarters for napping.
In response to an additional question you raised re-
garding the relevancy of names of employees reporting
to working during the strike—the union plans to send
different communications to employees who are in the
plant and employees who are on strike.
On March 16, 1990, the Company sent the following letter
to the Union regarding the request for information:
In accordance with your request and after review by the
National Labor Relations Board, I am enclosing copies
779CIRCUIT-WISE, INC.
of documents which the Regional office found to be
relevant. The following documents are enclosed:
1) A list of discharges from September 1, l989 to
February 19, l990.
2) A list of voluntary terminations from September
l, l989 to February l9, l990.
3) A list of all employees hired from September l,
l989 to March 5, l990.
The foregoing . . . was not previously provided . . .
because of the Company’s concern of the confiden-
tiality of the names and addresses of our employees.
This concern was prompted by the acts of violence and
vandalism engaged in by the Union and its agents at the
picket line since the commencement of the strike. In
addition the company was quite concerned with respect
to disclosure . . . in view of the numerous acts of van-
dalism occurring at employees’ homes since the com-
mencement of the strike.
The attachments to the above letter included a list of em-
ployees hired without their names or addresses. Also set
forth were their dates of hire, departments, rates of pay, and
classifications.
As indicated above, the Company refused to divulge infor-
mation regarding employees hired after the strike on the
grounds that the strikers had engaged in acts of vandalism
and harassment. In this regard the Company filed an unfair
labor practice charge against the Union and at least some of
the allegations were found to be meritorious by the Regional
Office which notified the parties that it intended to issue a
complaint against the Union. As a consequence, the Union
entered into a settlement whereby it agreed, without con-
ceding fault, to cease and desist from damaging vehicles,
threatening employees with bodily harm, following vehicles
driven by employees, and throwing objects at employees
crossing the picket line. While I do not view the settlement
agreement as proof of the 8(b)(1)(A) allegations, I do con-
clude that the Company had a reasonable basis for believing
that the Union engaged in such actions in relation to the
strike.
The complaint does not allege that the Company refused
to furnish the information as the Union requested it. No
doubt because of the evidence of union misconduct, the Gen-
eral Counsel does not contend that the Company illegally re-
fused to give the names and addresses of persons employed
after the strike commenced. Rather, the allegation is that the
Respondent unlawfully refused to provide the Union with the
following information:
a) Rates of pay, job classifications and dates of hire
of replacement employees.
b) Rates of pay and classifications of all employees
permanently transferred into bargaining unit jobs.
c) Names of any bargaining unit employes termi-
nated since 8/30/89 and the reasons therefor.
The names and addresses of bargaining unit employees are
presumptively relevant. Phoenix Co., 274 NLRB 995 (1985).
Also, the Board has held that an employer is obligated to
furnish the names, addresses, and wage information of strike
replacements. Georgetown Associates, 235 NLRB 485
(1978); Soule Glass & Glazing Co., 246 NLRB 485 (1979).
On the other hand, I can see a justification in refusing to
give a union the names and addresses of strike replacements
where there is a reasonable and objective basis for fearing
that the union will engage in illegal harassment. Sign & Pic-
torial Union Local 1175 v. NLRB, 419 F.2d 726, 737 (D.C.
Cir. 1969); Webster Outdoor Advertising Co., 170 NLRB
1395 (1968).
In the present case, the General Counsel does not contend
that the Union would not be entitled to the names and ad-
dresses of the replacement employees. However, I also agree
with the General Counsel’s contention that the Union is enti-
tled to certain other information regarding replacements.
Thus, although there was arguably an impasse prior to the
strike, that does not mean that the Union no longer rep-
resents the employees in the bargaining unit including those
people who come in as strike replacements and do bargaining
unit work. Clearly to perform its duty as bargaining rep-
resentative, a union is entitled to know the job classification,
wage rates, and seniority dates of all persons in the bar-
gaining unit whether they participated or did not participate
in a strike.
The Company maintains that it did not have to furnish the
information because the Union’s request was too broad and
encompassed materials which were not disclosable. To me
such an argument is a non sequiter. To the extent a union
requests relevant and unprivileged information, it seems to
me that the Company is obligated to comply even if it may
lawfully reject demands for other information that may not
be relevant. LaGuardia Hospital, 260 NLRB 1455, 1463
(1982). Nor do I think the matter is moot on account of the
Employer’s agreement to turn over the relevant information
5 months after the request was made and only after a com-
plaint was issued. Where information is relevant and readily
available, compliance with such request should be made
without undue delay. Tennessee Steel Processors, 287 NLRB
1132 (1988).
4. Information regarding quality bonuses
In September 1988 the Company, as part of its proposal
for a 1-year contract, offered a ‘‘Quality Bonus’’ plan. The
purpose of this plan was to induce employees to raise both
productivity and quality. To that extent, the plan as proposed
was in the Company’s self-interest and, in large measure,
was designed to help the Company and not the Union.
Quality in the production of circuit boards is defined sim-
ply as the total number of circuit boards made divided by the
ones that work and are shipped. Quantity is defined as the
number of lots shipped per week. In 1987 the quality figure
was 93 percent. In 1988 the quality figure was 89 percent.
The Company proposed that 1988 be set as the base year.
It proposed that if the average lots per week were between
140 and 180, the Company would place $100,000 into a
bonus pool for each 1-percent improvement in the quality
percentage figure. If average lots were between 180 and 220,
$125,000 would be put into the pool for each 1-percent im-
provement. If average lots were between 220 and 260,
$150,000 would be put into the pool for each 1-percent im-
provement. For example, assuming that the average lots for
1989 were 160 and the quality figure improved by 3 percent,
then under the Company’s proposal, $300,000 would be put
into a pool set aside for employee bonuses.
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The bonus proposal also had a provision that quality de-
fects would be subtracted from the bonus pool on a dollar-
for-dollar basis.
When this proposal was first discussed in September 1988,
the Company gave the Union information regarding the lots
and the yields for 1986 and 1987. Also given was similar in-
formation regarding the projected figures for the fiscal year
ending September 30, l988. On October 19, 1988, the Com-
pany gave to the Union the final figures regarding lots and
yields for fiscal 1988. On November 15, 1988, the Company
pressed the Union on the quality bonus proposal, indicating
that it would like to implement this program on an interim
basis even before a contract was reached. No agreement was
reached. There was no further substantive discussion between
the parties about the Company’s quality bonus proposal dur-
ing the course of the negotiations. And the Union, during
that time, made no requests for information regarding the
proposal. It was, however, included in the Company’s final
offer presented to the Union on July 18, l989. By its terms
the final offer does not limit the quality bonus only to the
year 1989. As written it is an offer that would go into effect
upon the execution of the agreement.
In a letter from Wilgoren to the Union dated September
28, l989 (after the strike began), he stated that effective Oc-
tober 2 the Company would implement the proposed quality
bonus plan as set forth in its final offer.
On October 2, 1989, the Union sent a letter to Wilgoren
stating:
We received your letter today regarding your an-
nouncement that Circuit-Wise is unilaterally imple-
menting your quality bonus proposal effective today.
On this and the other open proposals we wish to bar-
gain—we are not at impasse and we consider your uni-
lateral implementation another effort to undermine the
. . . bargaining process.
In addition, in order to evaluate the proposal we re-
quire certain information:
1) The average lots per week for each fiscal year,
from 1980—1988, and the quality, as measured by
yields, for each of those years;
2) The average lots per week, on a week by week
basis for fiscal 1989, and the quality measurement for
each of those weeks;
3) Please explain the basis upon which the quality,
as measured by yields is determined;
4) Please list the dollar value of customer returns due
to quality defects for each fiscal year, from 1980—
1989.
On October 13, 1989, Wilgoren responded as follows:
Please be advised that the Company is not imple-
menting the quality bonus proposal at this time. Please
disregard my prior letter . . . as that letter is incorrect
insofar as it stated that the quality bonus was being im-
plemented.
Accordingly, . . . as the Company is not imple-
menting the quality bonus, and due to the fact that you
rejected that proposal on August l, l989, your request
for information is not timely or relevant.
On October 23, 1989, the Union sent another letter to
Wilgoren regarding the quality bonus proposal. This stated:
[W]e have reviewed the company’s quality bonus pro-
posal and wish to repeat our request for information in
order to further evaluate the proposal, whether or not
the company intends to unilaterally implement it . . . .
On January 5, 1990, the Union wrote to Wilgoren as fol-
lows:
The Union repeats its request for information regard-
ing the Circuit-Wise quality bonus proposal. Any pro-
posal which the company considers worthy of our con-
sideration will receive full consideration from the
Union as long as we are given enough information to
evaluate the proposal.
So far the Union has not received any of the infor-
mation requested.
At this time we would like to repeat and update our
request:
1) The average lots per week for each fiscal year,
from l980 to l989 and the quality as measured by
yields, for each of those years;
2) The average lots per week, on a week by week
basis for fiscal l989 and the quality measurement for
each of those weeks;
3) Please explain the basis upon which the quality as
measured by yield is determined; and
4) Please list the dollar value of customer returns due
to quality defects for each fiscal year, from l980 to
l989.
On January 17, l990, Wilgoren responded as follows:
As you know, the parties have discussed the quality
bonus proposal and the offer was rejected by the Union
on numerous occasions during the 38 negotiation ses-
sions held.
The company has provided sufficient information for
the Union to fully understand the proposal. Moreover,
the Union rejected the quality bonus proposal when it
rejected the Company’s final offer.
The request contained in your letter are considered
by the Company to be superfluous and irrelevant.
For the foregoing reasons, the request for this infor-
mation is denied.
Although I conclude that the parties were at impasse upon
the Union’s rejection of the Company’s final offer, this does
not mean that bargaining cannot or will not resume in the
future. Hi-Way Billboards, 206 NLRB 22, 23 (1973). The
Company’s final offer, including its proposal concerning
quality bonuses, was never withdrawn and therefore is still
a proper subject of bargaining if and when negotiations re-
sume. The fact that the Company changed its mind about
unilaterally implementing the bonus proposal does not mean
that the proposal was taken off the bargaining table. Accord-
ingly, as a mandatory subject of bargaining, the Union would
be entitled to any information relevant to assess and evaluate
the bonus proposal.
The questions are to what extent were the Union’s infor-
mation requests relevant and to what extent has the Com-
781CIRCUIT-WISE, INC.
pany, to the extent that it has not already done so, refused
to give relevant information. The Company’s proposal on its
face is fairly easy to comprehend and as explained to the
Union during negotiations, depends essentially upon arith-
metical computations during the period when bonuses are
proposed to be given. Using the year 1988 as the base year,
the amount of money contributed to the proposed pool would
basically be defined by ascertaining the percentage yield fig-
ure during the bonus period and to the extent it exceeded 89
percent plugging the number into the formula. As the Com-
pany furnished information relative to average lots (produc-
tivity), and yields (quality), for 1986, 1987, and 1988, I see
no relevancy or purpose to be served by figures going back
to 1980. Moreover, the Union has not explained why infor-
mation covering such a broader period of time would be rel-
evant to it in evaluating the Company’s proposal.
On the other hand, as the Company’s proposal does factor
in customer returns, it is my opinion that the Union would
be entitled to know for a representative period of time, the
extent to which there were customer returns. In this regard,
it seems to me that a 3-year base period would suffice and
it is recommended that the Respondent furnish to the Union,
on request, information regarding customer returns for any 3-
year period chosen by the Union to be representative.
F. Alleged Unilateral Changes
1. Regarding waste water treatment employees
The Company’s manufacturing process generates a variety
of metals and chemicals (mostly copper) that by law are re-
quired to be removed before entering the Quinnipaiac River.
Consequently, the Company for many years has maintained
a waste treatment plant on its premises.
At the time that the Union was certified there were three
to four employees who worked in the waste water treatment
area of the plant who were classified as ‘‘maintenance serv-
ice operators.’’ These people were included in the bargaining
unit and their responsibilities basically were to monitor var-
ious gauges indicating the level of pollutants and adding
chemicals to remove the waste products from the outgoing
water. None of these people were particularly skilled.
In late 1988 due to problems with the Connecticut Depart-
ment of Environmental Protection, the Company assigned
Nancy Smith, its process engineer, and Shelly Albino to
evaluate the waste water treatment system. When they ran
the system themselves without the employees they discov-
ered that it could meet legal requirements so long as they
paid attention to the indicators and carefully followed the di-
rections of the system’s manufacturer. They testified that
they therefore concluded that the problem was not the sys-
tem, but rather the employees who were assigned to run the
system. (Based on the testimony of Nancy Smith, I think that
a good deal of the problem was with the lack of adequate
supervision and training that the employees were given.)
On December 15, 1988, the Company notified the Union
that it was going to create a position called the waste water
treatment technician which would be part of the engineering
department. The Union was told that new people would be
hired to fill the newly created positions and that these new
jobs would not be in the bargaining unit. Wilgoren asserted
that the reason for this change was due to state regulations
and that it needed people with more technical qualifications
to perform the jobs. The Union’s representatives said that al-
though it had no objection to a change in the job description
or the need for additional training, it did object to the job
category being taken out of the bargaining unit. In this re-
gard, the Union pointed out that the bargaining unit included
a group of chemical technicians whose pay scale was similar
to that of the proposed waste water treatment technicians.
On December 28–29, 1988, the Company posted the job
of waste water treatment technicians. About the same time,
an advertisement for this position was placed in a New
Haven newspaper. On January 4, 1989, the Union objected
to the Respondent unilaterally taking this new position out of
the bargaining unit. The Union also proposed that the incum-
bent employees be trained to upgrade their skills. Wilgoren
asserted that the Company did not have time to do this and
intended to go ahead with its plans even while contemplating
the filing of a unit clarification petition. (No such petition
was ever filed.) During the meeting, the Respondent advised
that it would take a couple of months to accomplish the
change and that, in the meantime, the existing employees
would continue to operate the waste water treatment system.
When the Union stated that the proposed jobs were not dif-
ferent in kind from other technical job categories in the unit,
Wilgoren stated that the jobs would not be in the bargaining
unit and that the Company would only be willing to talk
about the effects on the current employees doing the work.
On January 31, 1989, Nancy Smith gave a presentation as
to why the Company needed to create the new position. The
Union, while recognizing the need to comply with state regu-
lations, still asserted that this problem could be met with ad-
ditional training and that even if new and more qualified em-
ployees had to be hired, there was no justification for taking
the job category out of the bargaining unit. Wilgoren replied
that the Company was going ahead with its plans and that
the Union could file charges with the Labor Board.
On February 16, 1989, Wilgoren told the Union that the
change would take place the following week, that the exist-
ing workers would be transferred to other jobs, and that
newly hired people would occupy the newly created job clas-
sification. While not insisting that the incumbents should be
placed into the new classification, the Union still objected to
the Company’s assertion that the job was now outside the
bargaining unit.
On February 20, 1989, the people employed as mainte-
nance service operators were transferred to other jobs within
the Company without loss of pay or benefits. At the same
time the Company hired four new employees, of which only
one, Wedman, had any experience or educational background
in handling waste water treatment plants. While it may be
that some of the employees who were hired to do this job
had a higher degree of general education, the fact is that
none had prior educational or work experience in dealing
with pollution control equipment. Moreover, the actual work
done by the new employees was essentially the same as done
by the old employees, albeit done with a greater degree of
care.
I do not think that the General Counsel is correct in assert-
ing that the Company violated the Act by unilaterally chang-
ing the job classification and hiring new employees to fill
that classification. Clearly, the Company notified the Union
about this change several months prior to its implementation.
It explained its reasons for making the change and in effect,
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The Company also offers to its employees medical coverage
through a health maintenance organization. Under that plan, the pre-
miums paid are based on the amounts paid for Blue Cross.
9 The Company does pay Blue Cross for an insurance policy
whereby the Company does not have to pay any employee’s claim
over $75,000. In such a circumstance, the insurance policy will pay
the remainder.
10 Since 1978 the Company has dealt with increased costs in a va-
riety of ways without increasing employee contributions. In 1983 the
Company changed carriers to get better rates. In 1984, it raised
deductibles and co-insurance. In 1985, it changed the plan in certain
ways including adding certain previously uncovered employees to in-
crease the base. In 1986, it again changed carriers to get lower rates.
In l987, it implemented a separate deductible for dental claims and
adopted an Administrative Services Only contract with Blue Cross
to lower costs. It is noted that Dowd acknowledged that in all these
years, the Company absorbed at least a portion of the increased costs
and never passed on 100 percent of the increases to employees. Ac-
cording to Dowd, on January 30, 1989, Blue Cross notified him that
they projected that the Company’s projected medical costs for the
year March 1, l989, to March 1, 1990, would go up by about 40
percent. (In its brief the Respondent avers that it was notified that
its rates would go up. This is incorrect because as described above,
the Company does not pay rates. Rather it pays medical bills as they
are incurred. One function of Blue Cross is to use its expertise to
guess what the totality of those bills will be at the end of the year.)
gave the Union ample time to convince it that the change
was not necessary. Indeed, it appears to me that the Union’s
principal concern was not with the fact of the change, but
rather with the Company’s opinion that the new jobs would
be outside the bargaining unit. Moreover the Company of-
fered to bargain about the effects of the change on the in-
cumbent employees who were not really affected in any sig-
nificant way. That is, the incumbent employees went to other
jobs within the plant and suffered no reduction in wages or
benefits.
On the other hand, I see no justification whatever for the
Company’s contention that these new jobs should be outside
the bargaining unit. On the contrary, it is my opinion the
new job classification was substantially similar to the old
job, requiring at most, a marginal increase in educational
background. Virtually all of the job functions of the new
classification were done by the old workers, if perhaps with
less attention to detail. But that, in my opinion, was largely
due to the lack of proper training and supervision. In light
of the above, its my opinion that the Company has unilater-
ally withdrawn recognition from a portion of the bargaining
unit. As the bargaining unit in the present case was estab-
lished by the Board pursuant to a Decision and Direction of
Election, and as the new job classification is substantially
similar to job categories in the existing unit, it is my conclu-
sion that the parties are required to adhere to the bargaining
unit and that neither party may, without the consent of the
other, alter the unit. NLRB v. United Technologies Corp., 884
F.2d 1569, 1572 (2d Cir. 1989). As stated by the Board in
Arizona Electric Power, 250 NLRB 1132, 1133 (1980):
It is axiomatic that parties to a collective-bargaining re-
lationship cannot bargain meaningfully unless they
know the scope of the unit for which they are to bar-
gain. Thus, it is well established that the integrity of a
bargaining unit cannot be unilaterally attacked, and that
once a unit is certified, it may be changed only by mu-
tual agreement of the parties or by Board action. [Cita-
tions omitted.]
2. Regarding Blue Cross/Blue Shield
For many years the Company has maintained a medical
program. For the vast majority of the employees, the Com-
pany has had an agreement to pay Blue Cross/Blue Shield
a fee to administer a self-insured plan.8 As explained by Jef-
frey Dowd, the Company’s vice president of finance, the
Company essentially has committed itself to paying as in-
curred, such employee medical claims in amounts over a set
deductible (paid by the employee) and less co-insurance. In
this regard, it should be noted that the Company does not
pay into any fund a fixed and periodic sum of money to in-
sure covering the claims made. Rather, each year, Blue Cross
notifies the Company regarding its guess as to what the
Company will likely pay out in medical claims for the up-
coming year. This does not establish a premium payment of
any kind, and if claims for a given year are less than pre-
dicted, the Company keeps the money.9
Since at least as far back as 1978 employees have paid for
part of the medical coverage through a payroll deduction of
92 cents for single coverage and $1.85 for two persons and
family coverage. These amounts were unchanged since l978
and since that time the Company absorbed all or part of the
additional costs as they were incurred. 10
At a negotiation session held on February 16, 1989, the
Union asked if the Respondent had a proposal on insurance.
Wilgoren stated that they did not have anything to offer at
that time because the Company was having discussions with
Blue Cross/Blue Shield.
On February 22, l989, Blue Cross/Blue Shield notified the
Company that they estimated that the Company’s medical
costs for the coming year would probably increase by about
$250,000.
On February 23, 1989, the Company told the Union that
it had received ‘‘new rates’’ from Blue Cross/Blue Shield
and that it needed an answer to the Company’s proposals that
day. Wilgoren then proceeded to put on the table a set of
three options all of which were designed to increase the costs
to the employees either by way of increased deductibles,
elimination of benefits, etc. Not having seen these Company
proposals before, the Union asked questions. After some dis-
cussion, Wilgoren stated that if the Union did not consent to
one of the Company’s proposed options, the Respondent
would pass along the entire ‘‘increase’’ to the employees
through higher weekly payroll deductions. Wilgoren justified
this position by claiming that by passing on to the employees
the entire additional cost, this was maintaining the status
quo, because the Company’s contribution for medical costs
remained the same. The Union’s chief negotiator viewed the
situation quite differently, claiming that the Company’s pro-
posal would be, in effect, a unilateral reduction in employee
wages. When Wilgoren asserted that there would be a unilat-
eral change if the Company absorbed the added cost, the
Union said that they would not file a charge if the Company
paid the additional costs. (Note again that this did not rep-
resent added current costs but estimated costs as of the year
783CIRCUIT-WISE, INC.
ending March l, l990.) The Union also advised that just as
the Company had rejected any interim agreements proposed
by the Union, it would not make any interim agreements that
were sought by the Respondent.
On or about February 27, 1989, the Company sent a news-
letter to its employees regarding health benefits. This stated,
inter alia:
Unfortunately, the Union rejected the Company’s pro-
posal. As a result, by law, we are not allowed to in-
crease our contribution to Blue Cross. Therefore, until
a new package is agreed to by the Union, the increased
cost will be paid by employees through higher payroll
deductions.
On March 1, 1989, the Company increased the weekly
payroll deductions thus resulting in a net reduction in em-
ployees’ weekly pay.
On March 3, 1989, Wilgoren stated that inasmuch as the
Union had not accepted any of the Company’s options, it
had, as of March 1, passed on the entire added costs to the
employees. The Union characterized this action as being a
unilateral change in employee benefits and Wilgoren re-
peated his opinion that there had been no change because the
Company was keeping constant its contribution to the health
program. The employee contributions were increased to
$6.27 for a single person, $12.52 for two people, and $13.35
for a family.
On March 6, 1989, the Company sent notice to employees
stating in substance that because the Union had not agreed
to one of the Company’s interim agreement options, it was
required ‘‘by law’’ to increase employee contributions to
maintain the present level of benefits. On April 7, 1989, the
Union proposed that the ‘‘increase’’ be shared 50–50 be-
tween the employees and the Company, retroactive to March
1, 1989. The Union repeated this proposal at several later
meetings.
In the meantime, the Regional Office of the NLRB issued
a complaint alleging that the Company made an unlawful
unilateral change when it increased the amount of money
withheld from employees to pay for the prospective increases
in medical coverage.
Thereafter, on May 17, 1989, the Company stated that it
would accept the Union’s April 7 proposal if the Union
would withdraw the unfair labor practice charge relating to
this subject. The Union agreed, conditioned on the agreement
being retroactive to March 1. After more debate, an interim
agreement was executed whereby there would be no change
in the level of benefits and the increases would be shared
50–50 between the Company and the employees. It also was
agreed that the Union was not waiving its claims for reim-
bursement retroactive to March 1, 1989.
In the absence of consent or an impasse in negotiations,
an employer may not make unilateral changes in existing
wages and benefits while the parties are bargaining for a col-
lective-bargaining agreement. NLRB v. Katz, 369 U.S. 763
(1962); Massey-Ferguson, Inc. v. NLRB, 78 LRRM 2289
(7th Cir. 1971), enfg. 184 NLRB 640 (1970).
In the present case there clearly was no impasse in the
overall bargaining as of March 1989. There was not even an
impasse regarding the medical plan issue as of March 1,
when the Company implemented the increase in the employ-
ees’ payroll deductions. The Company asserts that by in-
creasing the employee contribution, it made no change be-
cause it simply maintained the existing level of benefits with
the same amount of money that it had paid in the past. How-
ever, from employees’ point of view, the Company’s action
amounted to a substantial change because in order to main-
tain the existing benefits, their net pay was reduced by an
increase in the payroll deduction. In effect, the employees
suffered a pay cut as of March 1, in order to maintain their
existing medical coverage.
Clearly health care plans are mandatory subjects of bar-
gaining and an employer may not make unilateral changes in
them. Thus, in Clear Pine Moulding v. NLRB, 632 F.2d 721,
729 (9th Cir. 1980), the court held that the employer violated
the Act when, due to increased costs, it unilaterally discon-
tinued payments into one medical plan and purchased a sub-
stitute medical plan. In order to restore the status quo ante,
the employer was ordered to make whole its employees for
any money lost as a result of switching the plans. As the
General Counsel points out, Garrett Flexible Products, 276
NLRB 704 (1985), is squarely on point. In that case the
Board, with Chairman Dotson dissenting, held that the em-
ployer violated the Act when it unilaterally passed on to the
employees a premium increase. The Board stated at footnote
1:
[W]e adopt the judge’s finding that the Respondent vio-
lated Sec. 8(a)(5) by unilaterally increasing the health
insurance premium paid by bargaining unit employees
without bargaining with the Union. As found by the
judge, the Respondent did not have an established past
practice regarding the payment of premium increases.
Rather, it exercised substantial discretion in allocating
the increases between the Company and the employees.
Thus, we agree with the judge that the Respondent was
obligated to notify and bargain with the Union before
passing on the entire premium increase to the employ-
ees in July 1984. See Oneita Knitting Mills, 205 NLRB
500 fn. 1 (1973).
Regarding the facts of the present case, I also note that the
employees were required to increase their contributions not
in response to an actual rate or premium increase imposed
on the Company by Blue Cross. In fact, there was no actual
increase in rates, just a an estimate as to how much medical
claims would cost during the following year. Theoretically at
least, if claims did not reach anticipated levels, the costs of
the existing benefits (i.e., the status quo), would not have in-
creased at all.
Based on the above, it is my conclusion that the Respond-
ent violated Section 8(a)(1) and (5) of the Act by unilaterally
increasing employee payroll deductions to pay for the main-
tenance of the existing level of health benefits. Simply put,
I view this action as constituting a unilateral pay cut.
3. The layoffs at Mint-Pac
Mint-Pac is a joint venture Company set up by the Re-
spondent and General Electric Company. The employees of
Mint-Pac who were employed by the Respondent were in-
cluded within the bargaining unit.
According to Michael Dodd, Mint-Pac’s manufacturing
manager, in January 1989 a technical problem arose concern-
ing the way in which certain unusually designed circuit
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 A small number of employees in the Cinch department were not
laid off at Mint-Pac. These employees seem to have worked on a
process that was separate and apart from the other affected employ-
ees and therefore were retained in that department.
boards were being made for IBM. He states that the Com-
pany asked IBM if it could convert the product to conven-
tionally made circuit boards and they agreed. According to
Dodd, since the bulk of the employees were working on the
IBM process which needed to be discontinued and converted,
this created a major problem. (Apparently there were about
four employees working on a separate product for a Com-
pany called Cinch and those employees were unaffected.)
At the May 4, 1989 bargaining session, the Company an-
nounced that four employees working at Mint-Pac had been
laid off and had been placed in other jobs at Respondent.
(There is no contention that this layoff was caused by any-
thing other than economic factors.) The Respondent further
stated that in accordance with past practice, these employees
were offered jobs by seniority. (That is the employee with
the highest seniority being asked first.) When asked if there
was going to be any more layoffs at Mint-Pac, Wilgoren said
that he didn’t know.
On May 10, 1989, Wilgoren advised Union Representative
Hart that 17 more employees of Mint-Pac were scheduled for
lay off. He assured Hart that the affected employees would
be offered jobs at the Respondent in seniority order and that
there would be no bumping of employees in the main plant.
On May 11, 1989, the affected employees were called into
McMahon’s office one at a time (and in order of seniority),
where they were offered certain preselected jobs in the main
plant. (That is, these employees were not given the option of
selecting any available jobs for which they were qualified,
but rather were offered a limited choice of jobs that
McMahon thought were suitable for them.)11
On May 12, 1989, Hart called Wilgoren and complained
that the layoffs were not being done by seniority; that more
senior employees like Lonnie Hailey were not being given
the same job choices that more junior employees were given.
He also mentioned that there was a complaint that one em-
ployee was bumped. By letter of the same date, Hart re-
quested clarification of the Mint-Pac business situation as it
impacted on the employment of the unit employees.
Wilgoren thereafter responded by tendering a list of all Mint-
Pac employees who were employed before the reduction in
force, setting forth their job classifications and dates of hire.
Wilgoren asserted that all employees who had been laid off
(with the exception of three) were placed in other jobs with-
out any reduction in pay.
The initial question here is whether under these cir-
cumstances the Company had a duty to notify and bargain
with the Union about the decision to lay off employees from
Mint-Pac. Thus, although the layoff was for economic rea-
sons, it was not really due to a falloff in business. Rather,
the layoff came about because the product being produced
for IBM could not, because of engineering or design reasons,
be manufactured properly by the process then in use. There-
fore, with IBM’s approval, the Company ceased manufac-
turing this product by the method employing the affected
employees.
In Lapeer Foundry, 289 NLRB 952 (1988), the Board stat-
ed:
The Respondent’s decision to lay off the employees
. . . constituted an economically motivated business de-
cision that resulted in the loss of work for unit employ-
ees. In determining the Respondent’s bargaining obliga-
tion . . . we shall apply the principles set forth in Otis
Elevator Co., 269 NLRB 891 (1984) . . . . The plural-
ity opinion . . . applied a two-factor test—whether the
decision turned on a change in the nature or direction
of the business or whether it turned on labor costs—and
concluded that the decision turned on a change in the
nature of the business. In a concurring opinion, Mem-
ber Dennis applied a two step test: (1) Whether the de-
cision was amenable to resolution through the bargain-
ing process, and (2) if so, whether the benefit for labor
management relations and the collective-bargaining
process outweighed the burden placed on management.
Concluding that the decision to consolidate operation
was not amenable to resolution through the bargaining
process she agreed that the decision was not a manda-
tory subject of bargaining. Under either the two-factor
or two step test, we find that the Respondent’s decision
to lay off the seven employees for economic reasons
was a mandatory subject of bargaining.
When a business is confronted with an economic
problem such as declining sales, excessive inventory, or
an unprofitable department, it may have several options
to address this problem. Management may decide, for
example, to lay off employees, to shut down the un-
profitable department, or to consolidate operations and
transfer work to a more efficient plant. Although job
losses may result whether the decision is to lay off,
shut down, or consolidate, the focus of the decision to
lay off differs from the focus of the other two decision
in a critical manner. In deciding to lay off employees,
management directly alters employees’ terms of em-
ployment. This decision, like the decision to reduce
workers’ wages, necessarily turns on labor costs be-
cause the decision itself is to modify terms of employ-
ment in order to save money during economic
downturns. By contract the decisions in FNM, [First
National Maintenance], to shut down and in Otis to
consolidate part of the business involved a direct modi-
fication of the business structure. Those decisions had
only a secondary effect of altering employees’ terms of
employment. Accordingly, pursuant to the Otis plurality
two-factor test, the decision to shut down part of the
business or consolidate operations affects the scope, di-
rection, or nature of the business and need not be bar-
gained. On the other hand the decision to lay off turns
on labor costs and must be bargained.
The Otis two-step test of Member Dennis mandates
the same conclusion. A decision to lay off is predicated
on the assumption that savings will accrue from the re-
duced labor costs during a period when a full com-
plement of workers is unnecessary. Labor related con-
siderations therefore form the basis for the decision. As
a union has control over this labor-related factor, it can
offer alternatives to the layoff, such as wage reductions,
modified work rules, or part-time schedules for a larger
group, in order to save the Company money during the
economic downturn. Accordingly, the layoff decision is
amenable to resolution through the collective-bargaining
785CIRCUIT-WISE, INC.
12 The Company’s employee manual defines premium pay as fol-
lows:
All hours worked in excess of 40 hours per week will be paid
for at a one and one-half times rate. Unworked holidays will be
credited for overtime purposes.
Work performed on a Sunday or holiday will be paid for at dou-
ble time. This excludes double time when a person’s normal
work week begins with a Sunday night start-up.
It seems to me that as to those employees whose workweek was
changed from Monday through Friday to Sunday through Thursday,
that the remedy should require that they be paid at double time rates
for any Sundays that they worked. For employees whose week was
changed to Tuesday through Saturday, their entitlement to overtime
rates would still be dependent on whether they worked in excess of
40 hours.
process . . . . Although management has a legitimate
concern with the need for speed and flexibility in effec-
tuating a layoff to remedy its economic plight, we be-
lieve that the legal requirements that exist to ensure
meaningful bargaining in a timely fashion address this
concern adequately.
In light of the above analysis, we conclude that the
decision to lay off employees for economic reasons is
a mandatory subject of bargaining. Consequently, an
employer must provide notice to and bargain with the
union concerning the decision to lay off bargaining unit
employees and the effects of that decision . . . .
In order to illustrate the limits of our holding, we
stress that our analysis today applies only to an eco-
nomically motivated decision to lay off employees. We
recognize that a managerial decision is often not easily
categorized under a label such as layoff or consolida-
tion. For example the permanent contraction of a Com-
pany’s work force which might be viewed as a mass
layoff, may be part of a change in the scope and direc-
tion of the business enterprise and therefor not
bargainable under FNM . . . .
It seems to me that the decision to lay off employees at
Mint-Pac was based on technological grounds and not gen-
eral business conditions. The employees were employed in
making an unusual product by a novel method. In the end
that process did not work. As such, I do not see how this
situation could have been addressed, much less resolved by
collective bargaining.
By the same token, I don’t believe that the Company re-
fused to bargain about the effects of the decision. When the
Union’s representative asked Wilgoren to explain the Com-
pany’s actions and furnish information, Wilgoren responded
promptly. Rather than seeking to bargain, the Union chose to
file an unfair labor practice charge instead.
4. Changes in work schedules
A principal customer of the Respondent is Ford Motor
Company. Sometime in 1989 sales in the automobile busi-
ness turned down and as a result Ford’s purchase of circuit
boards from the Respondent also dropped.
In early June employees in the strip/etch/reflow depart-
ment were asked to volunteer for furloughs because of a re-
duction in business. When no one volunteered, the Respond-
ent told the employees in that department that effective June
12, 1989, it was changing the workweek schedule from Mon-
day through Friday to Tuesday through Saturday. In the
Photo Department the work schedule was changed to Sunday
through Thursday.
David Shumacher, the vice president of manufacturing tes-
tified that the change in schedules were put into effect in part
to reduce the amount of overtime worked by the maintenance
staff. That is, he testified that with fewer shifts working dur-
ing the week, the maintenance staff could get to more areas
on fewer days. Shumacher also asserted that during business
slowdowns in 1984 and 1985, the Company had shifted work
schedules.
On June 15, 1989, the Union raised the issue of the work
schedule changes. Wilgoren responded that he was unaware
of them.
On June 21, 1989, Wilgoren stated that the changes were
consistent with Company past practice asserting that similar
changes were made in 1984 and 1985. According to Union
Committee Member Dorothy Johnson, the Company stated
that it did not give the Union advance notice because it
claimed that it did not have enough time.
After July 4, 1989, the workweek changes were canceled
and the employees went back to their old hours and days of
work.
Hours of employment clearly is a mandatory subject of
bargaining. Thus, absent unusual circumstances, the Com-
pany was obligated to notify and bargain with the Union
prior to making the changes noted above. Whether or not the
Company in 1984 or 1985 made similar changes to accom-
modate a business slowdown is essentially irrelevant as there
was no union representing the employees at that time. As
stated by the Board in Adair Standish Corp., 292 NLRB 890
fn. 1 (1989):
The Respondent argues that because of its past practice
of instituting economic layoffs due to lack of work, it
had no obligation to bargain with the Union over such
layoffs. However, because of the intervention of the
bargaining representative, the Respondent could no
longer continue unilaterally to exercise its discretion
with respect to layoffs. See e.g., Ladies Garment Work-
ers Local 512 v. NLRB, 795 F.2d 705 (9th Cir., 1986).
Instead, the Respondent was obligated to bargain with
the Union over the layoffs, which are mandatory sub-
jects of bargaining. Lapeer Foundry & Machine, 289
NLRB No. 126 (July 20, 1988). Accordingly, we agree
with the judge that the Respondent violated Sec. 8(a)(5)
and (1) of the Act by failing to bargain with the Union
over the layoffs.
Also, I reject as unpersuasive any contention that the Re-
spondent did not have sufficient time to notify the Union
prior to making the change. Automobile sales did not pre-
cipitously drop overnight. I can’t imagine that this Company
did not see the market trends and was blind to the effects
on its product.
It therefore is concluded that the Company violated Sec-
tion 8(a)(1) and (5) by unilaterally changing hours of work
without prior notification to the Union and without affording
the union an opportunity to bargain about such changes.12
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
G. Other Alleged 8(a)(1) Conduct
1. No-solicitation rules
The Company, as part of its manual, maintains the fol-
lowing rules:
C-2 Unauthorized visiting in departments other than
that to which assigned, or leaving the department with-
out permission.
C-4 Congregating in groups for unauthorized discus-
sions, or loafing, littering or wasting time during work-
ing hours, including unauthorized extended time in a
restroom or cafeteria or at a pay phone.
C-7 Distribution of written and printed materials,
vending, selling, soliciting or collecting contributions
for any purpose on the property is prohibited during
working time. The restrictions contained in this rule do
not apply during break periods or meal times or other
specified periods during the work day when people are
properly not engaged in performing their work tasks.
On June 8, l988, the Company issued a letter to its em-
ployees reminding them of its no-solicitation rule. This letter
stated:
The company has, for many years had, in effect a No
Solicitation rule. This rule applies to everyone equally.
Contrary to the Union’s insinuation, the Company takes
no position on whether an employee should sign a
union card. As we have discussed with you many times,
the decision to sign or not sign a union card is yours
alone. Don’t let anyone pressure you into signing some-
thing that is not in your best interest.
The law protects your right to engage in union activ-
ity or to refrain from taking part in union activity. Any
employee is entitled to solicit during non-working time
(during breaks and meal time.) We intend to continue
applying this rule to all employees equally. All super-
visors have been reminded of our policy and we will
not tolerate special treatment for anyone.
The General Counsel does not contend that any no-solici-
tation rules maintained by the Company are unlawful per se.
Rather, he contends that the Company has discriminatorily
applied its rules so as to ban talk about the Union while per-
mitting employees to converse about other subjects.
There is evidence from company supervisors such as Wil-
liam Abbate and Merle Ames that employees working near
each other, in their departments, will carry on nonwork-re-
lated conversations during working time. There also was tes-
timony that from time to time, solicitations occur for such
things as girl scout cookies, etc. (However, the nature and
extent of such solicitations during working time in working
areas was not made that clear.) On the other hand, there was
evidence that the employer enforced its rules more strin-
gently insofar as visits by employees from one department to
another during working time. There also was persuasive evi-
dence that almost all employees during the course of their
work, come into contact with toxic chemicals of one sort or
another. Clearly, undue distractions not only could detract
from the work being performed, but could also result in harm
to the workers themselves. The General Counsel cites five
incidents involving employees Francis Blazi, Lonnie Hailey,
Lenora Daniels, Janet McCutchen, and Joseph Wingate.
Frank Blazi who worked in the plating department as a
floater, was on the union negotiating committee and was one
of the stewards selected by the Union. (He was named as a
steward on February 23, 1989.) On or about February 28,
1989, Blazi had a heated conversation with another em-
ployee, Pat Scirocco, who worked in the maintenance depart-
ment. The gist of this encounter was that Blazi orally ex-
pressed his anger at Scirocco who had indicated that he was
not interested in the Union. When John Bartalotta (vice
president of manufacturing) appeared and inquired as to what
was going on, Blazi said that he was upset that Scirocco had
quit the Union. According to Blazi, Bartalotta stated that he
was not to be discussing union matters in his department on
company time. The conversation between Blazi and Scirocco
took place in an area adjacent to, but outside, the plating de-
partment while Scirocco was repairing a machine. According
to Blazi, he was later told in relation to a different warning
that he had received verbal counseling in relation to this inci-
dent.
Blazi also testified that in early May 1989, the company
made a proposal at the bargaining table to the effect that the
employees in the chemical lab be converted from salaried to
hourly employees. According to Blazi, when he was deliv-
ering samples to the lab, he commented, ‘‘good morning fu-
ture hourly employees.’’ Blazi states that he was then called
into Bartalotta’s office where he was confronted by
Bartalotta and by Supervisors Ken Borkowski and Kenneth
Gilbert. He states that Bartalotta said that he understood that
Blazi was making overtures to Oscar Carigan on company
time, which Blazi denied. According to Blazi, Bartalotta
showed him but didn’t let him read, a two page letter signed
by Carigan and Miriam Nespral (supervisor in the labora-
tory), and said that I was harassing Carigan. Blazi states that
when he said that he didn’t think that the Company had any
right to prohibit him from talking to other employees about
the Union, Bartalotta replied that it was not going to go on
in his department.
Lenora Daniels and Janet McCutchen testified that on one
occasion, in April 1989 they were talking together when the
leadperson, Alina Mazewski, said that she was bringing the
message that the supervisor, Chuck Senger did not like the
idea of them talking. Daniels and McCutchen were not how-
ever, talking about the Union. (Both were moderately in-
volved in union activities. Neither was a member of the ne-
gotiating team nor appointed as a shop steward.) No discipli-
nary action was taken against these employees in relation to
this incident.
McCutchen testified that in April 1989 Joseph Wingate,
one of the stewards, came into her department while she was
working at the Colight machine (function unknown), and told
her that the Union was backing her up in relation to some
sort of incident she had. McCutchen states that about 5 min-
utes later, Mazewski told her that she didn’t want anyone
talking or hanging around the machine while working. No
disciplinary action was taken with respect to this incident.
Lonnie Hailey, who worked at Mint-Pac, testified that on
February 20, 1989, he brought some union cards with him
into the plant and while delivering some materials to the
HASL department left some of the cards in the area. He
states that he thereupon made eye contact with another em-
787CIRCUIT-WISE, INC.
ployee so as to indicate where the cards were located. Hailey
testified that he did not speak with anyone while in the de-
partment.
On February 20, 1989, Supervisor William Abbate made
the following report to McMahon based on a report made to
him by leadperson Cora Hopkins who did not testify in this
proceeding:
February 20, l989 at 2:05 p.m. in the HEO7 depart-
ment, Cora Hopkins, the area leadperson, observed and
overheard Lonnie Hailey of Mint-Pac give a union
membership card and discuss filling it out and returning
it, with Charlie Vidro . . . Lonnie Hailey also left ap-
proximately five union membership cards in the area
before he departed . . . Cora Hopkins took possession
of the cards and immediately informed me of the situa-
tion. I took possession of the cards and turned them in
to Tom McMahon . . . This activity took place at a
production line during normal working hours for both
Lonnie Hailey and the HEO7 operator. At 2:45 p.m.,
Lonnie Hailey approached Cora Hopkins andasked her
for the blank union membership cards that he had left
in the area. He was told that the cards were given to
the department supervisor. He departed. Recommended
Action: no less than a written warning depending on
any previous history.
On February 28, 1989, McMahon issued to Hailey the fol-
lowing written warning:
You have been instructed that during hours of work you
must limit yourself to performing job related duties. On
February 20, l989 you were involved in union activities
at 2:05 p.m. in HASL. This is a plant rule violation
since you were an unauthorized visitor in a department
other than your own, interfering with the job activities
of an employee in that department. Because of this, I
am giving you a written warning with the expectation
that this type of unauthorized activity will not happen
in the future.
In Our Way, 268 NLRB 394 (l983), the Board held, in es-
sence, that rules prohibiting solicitation during working time
would be presumptively lawful whereas solicitation bans dur-
ing ‘‘company time’’ would be presumptively invalid. There-
after, in Provincial House Living Center, 287 NLRB 158
(l987), the Board held that the employer did not violate the
Act when it banned solicitation or distribution during ‘‘work
time’’ rather than ‘‘work hours.’’
On the other hand a no-solicitation rule which is directed
only against union solicitations will be construed as being
facially invalid. Southwest Gas Corp., 283 NLRB 543
(1987). Also, a rule which although presumptively valid may
violate the Act if it is applied in a discriminatory fashion.
Marathon Letourneau Co. v. NLRB, 699 F.2d 248 (5th Cir.
1983); Lawson Co., 267 NLRB 463 (1983); St Vincent’s
Hospital, 265 NLRB 38 (1983), enfd. denied in part 729
F.2d 730 (11th Cir. l984); Hammary Mfg. Corp., 265 NLRB
38 (1982). A no-solicitation rule will not be unlawful merely
because they allow charitable solicitations as an exception to
the general rule. South Nassau Communities Hospital, 274
NLRB 1181 (l985). However the Board may examine the
level and nature of the solicitations under the exception to
determine if the rule is applied in a discriminatory fashion.
See Hammary Mfg. Corp, supra. In Restaurant Corp. of
America v. NLRB, 827 F.2d 799 (D.C. Cir. 1986), the court
in trying to find the dividing line between nondiscriminatory
and discriminatory application of a facially valid no-solicita-
tion rule stated:
Carefully developed legal doctrine indicates that re-
strictions on union solicitation must be justified by the
employer’s legitimate concerns for work place effi-
ciency. This is the only sensible way to reconcile the
cases in this area. Thus, a ban on solicitation on work-
ing time and in working areas is presumptively valid;
conversely an employer may not generally prohibit
union solicitation or the distribution of union literature
by employes during nonworking times or in non work-
ing areas . . . . Employees may be restricted to distrib-
uting union literature and materials to nonworking time
and nonworking hours . . .
Disparate enforcement inherently requires a finding
that the employer treated similar conduct differently
. . . . This is a fact based inquiry in which the Board
proceeds on a case-by-case basis . . . .
[N]otwithstanding the unconditional ban on solicita-
tion, the Company had condoned six general instances
of solicitations of its employees for social purposes dur-
ing the year prior to the discharge of Herbekian and
Dameron. These non-union solicitations may be charac-
terized as the ordinary ad hoc expressions of friendship
that naturally occur among small groups of people.
Most of the solicitations involved individual request
during working hours in working places for contribu-
tions . . . among a small group of friends and co-work-
ers. While these solicitations probably averaged at least
ten workers, (making a minimum total of around 50 to
60 solicitations), they probably took only a few seconds
each.
[D]uring scarcely more than a month Herbekian
spoke on twenty-two occasions with other employees
about the union. These solicitations were concentrated
into a short period and each contact occurred on work
time in working areas in clear violation of the Com-
pany’s rule. Moreover, Herbekian violated the no-solici-
tation rule in systematic fashion . . . . It is equally ob-
vious that Herbekian’s solicitations on behalf of the
Union were significantly more involved than, say a
simple request to chip in for a small gift. According To
Herbekian’s testimony, her solicitations . . . often in-
volved an explanation of the comparative merits of the
union’s dental, hospitalization, and legal plans . . . .
The interference by Herbekian was substantial, system-
atic, and concentrated while the interference caused by
the social solicitations was comparatively minimal and
irregular. Since the interference in the workplace caused
by Herbekian’s solicitations substantially exceeded that
condoned for social purposes, the facts do not support
the Board’s finding of a disparate application of the no-
solicitation rule . . . .
However, when Dameron’s single union solicitation
is compared with the numerous condoned non-union so-
licitations, a different situation is presented . . . The in-
terference . . . caused by Dameron’s solicitation was
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 In this context, it is irrelevant whether the statement by John
Bartalotta on February 28, 1989, amounted to warning as defined in
the Company’s disciplinary system or simply a verbal criticism. In
either case, the issue here is whether the transaction was an attempt
to enforce the no-solicitation rule in a discriminatory manner.
substantially less than that caused by Herbekian’s so-
licitations and substantially less that the Company con-
doned non-union solicitations. Thus in discharging
Dameron while condoning non-union solicitations that
caused greater disruption of the working place, the
Company disparately enforced its no-solicitation rule.
Applying the balancing test described above, it seems to
me that the warning to Hailey was unjustified by his actions
and represents a discriminatory application of the Respond-
ent’s no-solicitation rule. Hailey’s presence in the HASL de-
partment was legitimate because he was making a delivery
there. The credible evidence indicates that he did not speak
to anyone while there and simply left some union cards in
an area where they could be seen and picked up by another
employee. (While the Respondent asserted that Hailey con-
versed with an employee named Vidro, while the latter was
handling toxic chemicals, it did not produce any witness to
substantiate this claim.) Therefore, there was no interference
with production and no action which could reasonably be
construed as inducing employees to be careless with respect
to chemicals. As there is evidence that the employer allows
a degree of nonwork related communications by employees
while at work, it is my opinion that the Respondent’s
issuance of a disciplinary warning to Hailey was grossly dis-
proportionate to his actions and was inconsistent with its nor-
mal response to similar nonunion communications by other
employees.
I also reach the same conclusion with respect to the verbal
warnings or criticisms given to Blazi on February 27 and
early May 1989.14 In both of these situations Blazi spoke
briefly to other employees about the Union either in or near
where he was scheduled to be working. While in one cir-
cumstance, he was involved in a short but heated argument
with another employee about the latter having quit the
Union, there was no evidence that Blazi interfered with pro-
duction or created any safety hazard. Here too, the evidence
as a whole indicates that Blazi’s communications were, apart
from their union content, the types of communications that
the Company has normally tolerated.
As I conclude that the incidents involving Hailey and
Blazi represented instances where the Respondent violated
Section 8(a)(1) by the discriminatory application of its no-so-
licitation rule, it is unnecessary for me to consider the inci-
dents involving Daniels, McCutchen, and Wingate.
2. Alleged disparagement of the Union
Essentially this allegation relates to two related incidents
on February 20 and 21, l989. Basically this boils down to
a situation where Supervisor Ken Borkowski on one occasion
during a meeting of the four employees in the plating depart-
ment made some moderately obscene comments questioning
the masculinity of the Union. According to employee
Benitez, similar statements were repeated on the following
day. In my opinion these isolated statements by Borkowski
merely amounted to name calling and did not rise to the
level of actions which are violative of the Act. Mademoiselle
Knitwear, 297 NLRB 272 (1989); Newsday, Inc., 274 NLRB
86, 95 (l985).
H. The 8(a)(3) Allegations
1. Margaret Lewis
Margaret Lewis was employed in the photo department
and worked from October 1987 to June 15, 1988, when she
was discharged. Her supervisor was Chuck Senger who was
admittedly aware of her union activities. Lewis signed a card
for the Union in March 1988. She was an active union sup-
porter and her activities included wearing union buttons in
the plant and distributing union literature in the cafeteria. She
wrote and signed an article which appeared in the union
newspaper on March 24, 1988. This article contended that
the Company was willing to spend money for a high-priced
lawyer to stall the election, but was not willing to do much
about health and safety. Prior to the events discussed below,
Lewis had a spotless work record and had received no prior
warnings.
On June 8, 1988, Lewis told various of the employees in
her department that she had observed two of the leadpersons,
Alina Mazewski and Rosa Green, engaged in lesbian activi-
ties. (In fact, no such thing occurred although one was put-
ting some type of cream on the other to soothe a bad sun-
burn.) The credible evidence is that Lewis repeated these ac-
cusations on or about June 9 at lunch and in the hearing of
Mazewski who became extremely upset about it.
On or about June 9 or 10, Lewis was called into Senger’s
office and questioned about the incident. In this record, the
testimony of Senger was that when Lewis admitted the inci-
dent, he did not either tell her that what she had done was
wrong or suggest that she ought to apologize to Mazewski
and Green. Indeed, the tenor of Senger’s testimony indicates
that he was not really trying to resolve a problem, but rather
was seeking to build a record to justify Lewis’ discharge.
Thus, even after Lewis admitted the infraction, Senger con-
tinued to seek out and obtain statements from other wit-
nesses.
On Friday evening, Senger told Lewis that he had orders
from Tom McMahon (personnel manager), that she was not
to return to work on Monday, June 13 but was to call
McMahon instead. On June 15, 1988, McMahon told Lewis
that she was discharged.
McMahon, who admittedly was aware of Lewis’ union ac-
tivity, testified that he is the only person who has the author-
ity to make decision to suspend or discharge employees, al-
beit he makes such decisions based on reports given to him
by company supervisors and managers. He also described the
operation of the Company’s disciplinary rules. Regarding
such rules as they relate to misconduct (not as to latenesses
and absences), McMahon testified that there were two classes
of conduct. One which could lead to immediate termination
without prior warnings, and the other which required a three-
step procedure consisting of a warning, a suspension, and
discharge. In the case of Lewis, he testified that she broke
rule A-14 which is grounds for immediate discharge. This
rule reads:
789CIRCUIT-WISE, INC.
15 The case of Eva Jenkins might be somewhat different as she ap-
pears to have had a medical condition which was, in some degree,
indulged.
A-14 Engaging in conversation or activity which is in-
tended to detract form or impair a person’s, a group’s
or the Company’s reputation.
Notwithstanding McMahon’s assertion that the conduct of
Lewis warranted immediate termination under rule A-14, it
is clear that other employees who were involved in similar
or even more serious types of ‘‘slanders’’ were not dis-
charged. Thus, company records show that Christopher
Ames, David Hall, Alexander Jimenez, and Eva Jenkins en-
gaged in similar or more aggravated types of misconduct on
several occasions without being discharged.15 Moreover, the
Company could not cite any other employee who was ever
discharged for an infraction of rule A-14 where that em-
ployee had no prior disciplinary record.
In my opinion, the General Counsel has established that
the discharge of Margaret Lewis, coming soon after the
opening of negotiations, was motivated by antiunion consid-
erations. While I do think that Lewis showed poor judgment
in telling other employees that the two leadpersons were in-
volved in a sexual encounter, I also believe that this was
seized upon as a pretext to justify her discharge. Thus, in-
stead of attempting to correct the situation when Lewis ad-
mitted the infraction, Supervisor Senger sought instead to
make a record justifying her discharge. Also, it is my opinion
that the record in this case shows disparate treatment as de-
scribed above.
2. Jesus Agosto
Agosto was first employed by the Company in October 18,
1986, and worked for most of his time in the plating depart-
ment. In December 1988, he transferred to the waste water
plant as a maintenance service operator, a job, which as
noted above was replaced in late February 1989. On Feb-
ruary 20, Agosto was transferred back to the plating depart-
ment (without loss of pay). Agosto was an active union sup-
porter, wearing union buttons and passing out union lit-
erature. He testified in the representation case regarding the
supervisory status of leadpersons. He also was designated by
the Union as one of its shop stewards on February 1, 1989,
and attempted without success, to present grievances to su-
pervisors in early February. As noted above, on or about
February 20, he was involved in an unpleasant exchange
about the Union with his Supervisor Ken Borkowski.
When Agosto returned to the plating department on Feb-
ruary 20, Supervisor Borkowski assigned him to a number of
different tasks that Agosto described as leadperson’s work.
Instead of being pleased with the responsibility given,
Agosto apparently felt that he was being mistreated.
On Friday, February 23, 1989, Agosto was assigned by
Borkowski to work on the deburr machine and he refused,
stating that he didn’t like being treated ‘‘like some fucking
yo-yo.’’ (According to Blazi, it would not be unreasonable
for a person employed in Agosto’s job category to be as-
signed to the deburr machine.)
After an exchange of insults, Agosto went to the place
where he was assigned, but instead of beginning work, he
chatted with the leadman while the other employees were on
break. When they returned to work, Agosto then went to the
cafeteria where he was seen by Borkowski who asked why
he was not at work. After saying that he was taking his
break, Agosto went back to the machine and worked for
about 2 hours.
At about 11:30 a.m. Agosto was called to the office of De-
partment Manager Bartalotta, who in the presence of
Borkowski, asked what had happened. Agosto testified that
after he gave his side of the story, Bartalotta told him to go
home and call Personnel Director McMahon the next day.
On Sunday, February 26, McMahon called Agosto at home
and told him that he had been discharged.
Needless to say, the Company contends that Agosto was
discharged, not because of his union activities, but rather be-
cause of his insubordinate refusal to follow orders. Signifi-
cantly, this was not the first time that Agosto engaged in in-
subordinate behavior, as the record shows that he had re-
ceived a 3-day suspension in August 1988 for refusing a job
assignment. Moreover, under the published company rules, a
suspension remains active for 12 months and leads to dis-
charge if another violation occurs within that period.
In my opinion, the Respondent has demonstrated that the
discharge of Agosto was motivated by factors other than
union considerations. As the evidence shows that Agosto re-
fused a direct order to perform work within his job descrip-
tion, and as he had been previously suspended for similar in-
subordination, I think that the Respondent has met its burden
under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
3. Frank Blazi Jr.
Blazi was not an active union supporter until around De-
cember 1988 when he came to negotiating session to grieve
a warning he had received from his supervisor. Thereafter,
he remained on the Union’s negotiating committee and was
one of the people that the Union designated as a steward.
On February 24, 1989, the day after the Union designated
Blazi as a steward, he was questioned by supervisor
Borkowski about reading on the job. When Blazi explained
that he was reading the company employee handbook while
during down time, Borkowski told him ‘‘just do your job.’’
On Monday February 27, 1989, Blazi attempted without
success to present a grievance to Bartalotta who refused to
accept it. Also, as discussed above, Blazi had a conversation
in the plant, with another employee named Sirocco about the
latter’s decision to withdraw from the Union. Later that day,
Blazi was given a warning by Ken Borkowski which read:
Last Friday, February 24, 1989 I informed you to dis-
continue reading literature while you were supposed to
be performing duties of your job. This occurred at
11:55 a.m. One hour and 10 minutes later, I again saw
you reading literature during working hours when you
were expected to be performing job duties. Your dis-
regard for adherence to this company rule leaves me no
choice but to issue you a written warning for reading
of literature while on duty . . . .
When Blazi stated that the warning was not appropriate
under the Company’s progressive discipline system because
it was not preceded by a verbal counseling, he was told by
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Borkowski testified that one reason that he did not give Blazi
a higher rating was because he was hitting the foot-switch on his
machine too much and therefore slowing it down. Nevertheless,
these actions which were denied by Blazi, were not cited in any
evaluation that Borkowski made of Blazi.
17 I also note the timing of this warning which tends to show a
retaliatory motive. The Union had filed a complaint with OSHA
which conducted an inspection of the plant beginning on February
16, 1989. As noted above, that inspection generated a degree of frac-
tiousness between the Respondent and the Union.
Bartalotta that his earlier admonition to Blazi regarding Si-
rocco constituted verbal counseling.
The Company does have a rule which prohibits ‘‘unau-
thorized reading of books, magazines or newspapers while on
duty.’’ The Company also showed that in the past, it has en-
forced this rule. This was evidenced by warnings given to
Wilbur Thorne and June Glenn, respectively on September 9,
and October 12, 1988.
On the other hand, the warning given to Blazi was not for
reading a newspaper, but rather for reading the Company’s
employee handbook. While he admittedly was reading during
worktime, it was shown that he did so during a period which
did not interfere with his job. Further, to the extent that the
warning was predicated on an earlier verbal counseling (a
necessary predicate under the Company’s procedure), I have
already concluded above that Blazi had been engaged in pro-
tected concerted activity for which disciplinary action would
be unlawful. I therefore conclude that the warning to Blazi
on February 27 constituted a violation of Section 8(a)(1) and
(3) of the Act and is an example of a rule more strictly en-
forced for union activists than for ordinary employees.
In May 1989 Blazi received his regular 6-month evalua-
tion wherein he was rated as ‘‘above satisfactory.’’ (The rat-
ing system has five steps from unsatisfactory to outstanding.
Above satisfactory is the second highest rating and merit
raises were geared to the rating system.) When Blazi dis-
cussed his evaluation with Borkowski he stated that he
thought he should have been rated as outstanding. Although
Borkowski upgraded Blazi in one area (housekeeping), he
did not change his overall evaluation. As a consequence,
Blazi decided to appeal his evaluation through the Com-
pany’s problem-solving procedure.
Blazi testified that when he spoke with Bartalotta about
the evaluation, Bartalotta agreed that Blazi was an out-
standing employee and would have gotten that rating if he
(Blazi) was not off ‘‘on so many tangents.’’ According to
Blazi, Bartalotta in response to Blazi’s inquiry mentioned
among other things the Scirrocco incident.
Bartalotta denied saying anything about Blazi’s union ac-
tivities when discussing the evaluation. However, he did cite
among the reasons for the evaluation, a warning given to
Blazi in December 1989 which had been retracted and the
previously described warning of February 27 about reading.
In deciding this issue I have credited the account of Blazi.
Thus, I accept his testimony that he was told by Bartalotta
that he would have received an outstanding rating were it not
for the fact that he was ‘‘off on so many tangents,’’ meaning
Blazi’s union activities. Moreover, I would reach the same
conclusion even if I credited Bartalotta’s account as it is evi-
dent that a reason for not giving Blazi the outstanding rating
was because of a revoked warning on one hand and an ille-
gally motivated warning on the other.16
4. Javiar Cruz
Cruz received a verbal counseling on February 24, 1989,
allegedly for having three attendance incidents in that month.
These, according to the Company, consisted of leaving early
by 3 hours on February 20, being 3 minutes late on February
21, and being absent on February 23.
Cruz who was employed at Mint-Pac was elected by the
employees of his department as a shop steward in January
1989. The Company was notified of this action by letter
dated January 31.
About 2 weeks before February 23, 1989, Cruz notified
his supervisor, Jim Semsel, that he was going to take off on
February 23 because his wife was scheduled to have surgery
on that date. He again reminded Semsel that he would be out
on the day before February 23. Semsel did not tell Cruz that
under the Company’s policy Cruz might be disciplined if he
was absent on February 23. (That is, the Company asserts
that it has a strict policy of imposing disciplinary action
without consideration of fault, against any employee who has
three absences and/or latenesses in any given month.) Semsel
also did not inform Cruz that to avoid discipline, he (Cruz)
could take a personnel day or a portion of his vacation to
which he was entitled. Therefore, Cruz, who had duly noti-
fied his supervisor that he was going to be absent on Feb-
ruary 23, thereafter discovered to his surprise, that he had
been given a disciplinary action.
As in the cases of Margaret Lewis and Frank Blazi, it is
my opinion that the Company has applied its rules in a dis-
criminatory fashion to impose disciplinary action against
union supporters. Thus, even if the Company has a uniformly
applied rule regarding absences and latenesses, the trans-
action here looks more like the springing of a trap than the
valid exercise of discipline to correct attendance deficiencies.
Clearly Semsel was aware that Cruz’ wife was going into
surgery and would be out on February 23, 1989. He also was
in a position to know (or find out), that Cruz already had
two lateness/absence occurrences in February. Given these
circumstances, I find that the only rational explanation for
Semsel’s failure to notify Cruz of his option to take a per-
sonnel or vacation day so as to avoid discipline, was the de-
sire to build a disciplinary record against Cruz who was an
active and open union supporter.17
5. Joseph Wingate
Wingate was employed on the second shift in the plating
department. On January 31, 1989, the Company was advised
that he was one of the Union’s shop stewards.
On or about February 22, 1989, Wingate asked permission
from his supervisor to go to a convention of the Union’s Dis-
trict Counsel to be held in Peabody, Maine, on February 24.
When his supervisor told Wingate that he could not authorize
such time off, Wingate went to and told Borkowski that he
wanted to go to the union meeting. Borkowski replied that
if Wingate went, he would be written up (i.e., given a dis-
ciplinary warning).
On February 24, Wingate went to the meeting accom-
panied by employees Lonnie Hailey and Dorothy Johnson.
On his return to the plant, Borkowski told him that his ab-
sence went on his record. A couple of days later, Borkowski
791CIRCUIT-WISE, INC.
and Bartalotta told Wingate that his absence was not excused
and that if he had two more similar incidents he could be
fired. Wingate was told that it was not necessary for him to
take time off to go to a union meeting; that they thought it
was more important for Wingate to be inside the factory.
McMahon conceded that the Company and the Union had
agreed that absences for ‘‘union business’’ would not be
counted against an employee so long as adequate advance
notice was given to the employee’s supervisor. As such no-
tice was given and as the Company has not attempted to
prove any compelling reason to deny Wingate’s request to go
to the Union’s convention, I conclude that it violated Section
8(a)(3) by charging him with an unexcused absence.
6. Jeremia Samuel Jr.
Samuel was employed in the drilling department and was
scheduled to work from 9 a.m. to 5 p.m. which meant that
his work overlapped between the first and second shift. Al-
though Samuel claims that he was not supervised during the
period from 3 to 5 p.m. I think that this assertion is absurd
and I don’t credit it.
During his brief stint of employment, Samuel, apart from
signing a union card, was not active in the Union. Moreover,
there was, in my opinion, insufficient evidence to show that
the Company was aware of his membership.
The evidence establishes that in the 2 months prior to his
discharge on May 5, 1989, Samuel, during his probationary
period, was warned on several occasions regarding his at-
tendance and tardiness record. The evidence further estab-
lishes that Samuel was also repeatedly spoken to about his
habit of wandering off from his designated work areas.
In summary, it is my opinion that Samuel was discharged
for cause and not because of his union sympathies or activi-
ties.
7. Lonnie Hailey
Lonnie Hailey was an extremely active union supporter, a
fact which was known to the Company. Among other things,
he was on the Union’s negotiating committee and was ap-
pointed by the Union to accompany the OSHA inspectors
when they toured the plant in February 1989. In March 1989
Hailey was elected to be the Union’s Recording Secretary.
Hailey began his employment on June 15, 1989, and
worked at Mint-Pac until May 1990 when there was the re-
duction in force. At that point he was transferred over to the
drilling department of the main company.
On February 28, 1989, Hailey received a warning for his
conduct on February 20 and this related to the incident when
he left a union card for another employee in the HASL de-
partment. I have already concluded above that this warning
constituted a violation of the Act.
In April 1989, Hailey had two absences and one tardiness.
On May 3, 1989, instead of receiving the normal verbal
counseling (of lower consequence), Hailey received a written
warning which read:
On February 28, l989, you received a warning for an
unauthorized visit in a department other than your own
and interfering with the job activities of an employee
in that department. During the month of April you have
incurred three attendance incidents (two absences, and
one tardiness). Because of these deficiencies I am giv-
ing you a written warning with the expectation that you
will favorably solve this problem. If . . . you are in
violation of this or any other company rule, you may
receive a more severe form of corrective, progressive
disciplinary action, including discharge.
Since the issuance of this written warning was predicated
on the prior illegally issued warning of February 28, 1989,
it follows that this action was violative of the Act. That is,
in the absence of the prior unlawful warning, the normal
company action would have been to give Hailey a verbal
counseling which is at a lower level of the Company’s pro-
gressive disciplinary system. See Crestfield Convalescent
Home, 295 NLRB 525 (1989).
Subsequently, on August 25, 1989, Hailey received a 3-
day suspension for attendance deficiencies in July. As this
level of discipline was based on the earlier and illegal written
warnings of February 28 and May 3, I conclude that the sus-
pension was also violative of Section 8(a)(3) of the Act.
8. Lennora Daniels
Daniels worked on the second shift from 3 to 11 p.m. as
a photo printer. Her supervisor was Chuck Senger and the
leadperson in her area was Alina Mazewski. Her union ac-
tivities were modest. She handed out a union newsletter in
the cafeteria and wore union T-shirts at work. On the other
hand she was not a member of the Union’s negotiating com-
mittee and she was not one of the employees elected to be
a steward.
On the evening of April 19, 1989, Daniels was asked to
work overtime by Mazewski, who in the absence of Senger
was the acting supervisor. Sometime between 10:30 and
10:45 p.m. a security guard reported to Daniels that the tire
on her car was low. Daniels then went over to Mazewski to
tell her about the tire that she would be a little late for the
overtime shift. According to Daniels, Mazewski shook her
head up and down thereby indicating approval. (Employees
are given a 10-minute break between the end of their shift
and the commencement of overtime work. Therefore Daniels
would be required to be back at her work station com-
mencing at 11:10 p.m.)
At about 10:55 p.m., prior to the end of the shift, Daniels
and another employee Bernard Young went to the parking
lot. Upon her return, Daniels was told by Mazewski that the
next time she left before the end of the shift, she should tell
Mazewski first. At this point, Daniels and Young left the
plant and drove to a gas station to get air. They returned at
about 11:25 p.m. or 15 to 20 minutes after the start of the
overtime shift. Upon her return, Daniels was confronted by
Mazewski regarding the amount of time away from work and
told to go home. Daniels, who was not given an opportunity
to state why she was delayed, uttered a profanity to
Mazewski and the latter wrote up the incident as follows:
On April 19, 1989 around 10:40 PM, Lennora Daniels
came to me, Alina Mazewski, concerning a flat tire.
She asked my permission to go and check on it. I told
her yes at her break time which was at 11:00 PM since
she was working overtime. Lennora left to check on her
tire before 11:00 PM without my permission. Lennora
came back at 11:00 PM and left again, she didn’t return
until 11:30 PM. Since she was 20 minutes late, I told
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Abbate claimed, contrary to the testimony of Andrew Young,
that when asked, Young denied hearing Mazewski give Daniels per-
mission to leave. Yet it must be recalled that Mazewski conceded
that she did in fact give Daniels permission to check her tires at
breaktime. There is therefore no real dispute that Daniels was given
permission to do something regarding her automobile.
19 The Company’s evidence does not establish that other employ-
ees were treated similarly for breaching rule A-11. In this respect
the records offered show that five employees discharged under this
rule were each terminated after leaving the plant in the middle of
their respective shifts and after being denied permission to leave or
not receiving such permission. I therefore do not believe that any of
these situations is consonant with the facts surrounding the discharge
of Daniels.
her she could not work overtime. I told her to punch
out, after she punched out, she came up to me and said
‘‘Alina you’re fucked-up’’ in Brian Cumming’s pres-
ence. Brian asked Lennora to leave. Lennora Daniels is
well aware of Company policy in regards to punching
out when leaving Company property. On occasion when
leaving company property during the meal break
Lennora has punched out when leaving and punched
back in upon returning to work. Also this policy was
discussed at a department meeting held approximately
2 months ago.
On April 20 Daniels was called to a meeting with Man-
ager Bill Abbate and Mazewski to discuss the incident. After
talking to the people involved including Young,18 Abbate
wrote up a memorandum recommending that Daniels be dis-
charged for the following reasons:
1. Insubordination the fact that Lennora left her work
station prior to break after being told not to.
2. Leaving the company property without punching
out.
3. Swearing at a leadperson (who is acting as super-
visor while Chuck Senger is on vacation)
On Wednesday, April 26, 1989, Daniels was told by
McMahon that she was being discharged for being in viola-
tion of the rules. According to McMahon, Daniels was dis-
charged for violating rule A-11 which states that an em-
ployee would be subject to discharge without prior discipli-
nary actions, for: ‘‘Leaving the property while on duty with-
out management permission.’’ Note that the decision to dis-
charge Daniels was not based on her cursing at Mazewski or
the fact that she went to the parking lot for a brief period
of time shortly before the end of her shift. Note too that no
disciplinary action was taken against Andrew Young who
went and returned with Daniels.
In my opinion the facts surrounding the discharge of Dan-
iels indicates a disparate application of company rules to
punish union supporters. Although it is claimed that Daniels
was in breach of a company rule prohibiting employees from
leaving the premises without permission, the fact is that she
was given permission to leave at breaktime to check her car.
It therefore was not unreasonable for her to go to a local gas
station during her breaktime to get her tire filled rather than
risk being stuck at the plant at 3 a.m. in the morning. Since
there is no dispute that Daniel’s tire was low on air, that
Mazewski had given her permission to leave and that Dan-
iels, at most, was 20 minutes late for the overtime shift, the
punishment of discharge, was in my opinion, grossly dis-
proportionate to the alleged offense. Moreover, it clearly was
carried out in a disparate manner as Young was not given
any disciplinary action for the same incident.19
In light of the above, and in view of the fact that Daniels’
union activities were carried out openly, I conclude that her
discharge violated Section 8(a)(1) and (3) of the Act. As stat-
ed by the Board in White Oak Coal Co., 295 NLRB 567
(1989):
In a case turning on employer motivation, it is not for
the judge to offer reasons not advanced by the em-
ployer to justify the employer’s actions. Here, the Re-
spondent, to rebut the General Counsel’s prima facie
case, stated, through Deel, that it discharged Coleman
for being absent for work for 2 consecutive days. The
Respondent did not state that it discharged Coleman for
showing an affront or indifference to management’s
rights. Given that Coleman was not absent from work
on Saturday, the Respondent’s proffered reason for the
discharge was false and must be deemed a pretext. Fur-
ther, the Respondent’s reliance on a reason for the dis-
charge that was ‘‘clearly wrong’’ lends support to a
finding that the discharge was for unlawful reasons
. . . .
9. Rose Puccino
Rose Puccino worked at Mint-Pac as a screener setup op-
erator. She was employed from May 31, 1988, until May 12,
1989, when the layoffs at Mint-Pac occurred. At the time of
her layoff she worked on the first shift.
Puccino’s union activities were much the same as Lenora
Daniels in that she wore union shirts and distributed union
literature from time to time. There was uncontested evidence
that Supervisor Semsel was aware of her union activity.
Puccino received a written warning on February 10, 1989,
regarding attendance problems. There is no dispute that this
warning was not discriminatorily motivated. This warning
stated:
On January 17, 1989, you were verbally counseled
concerning attendance deficiencies (tardiness). Since
that time, and also during the month of January, 1989,
you have incurred seven additional incidents of tardi-
ness. Because of this problem, I am giving you a writ-
ten warning with the expectation that you will satisfac-
torily resolve this matter right away.
If in the immediate and ongoing future your attend-
ance does not show significant improvement, or if you
are in violation of any other Company rule, you will re-
ceive a more severe form of corrective, progressive dis-
ciplinary action, including discharge.
This is a WRITTEN warning notice.
On April 28, 1989, Chuck Semsel, in response to
Puccino’s request to leave early told her that as she had two
lateness incidents that month, any other attendance incidents
would lead to a suspension. Puccino therefore remained at
work.
According to Puccino, on April 29 she had a flat tire on
the way to work and called in to report that she would be
793CIRCUIT-WISE, INC.
late. She testified that she was only able to reach Gerald
Green, a leadman in another area, and told him that she
would be late because of the flat. She also states that when
she told Green that she was worried about being suspended
because this of what Semsel had told her the day before,
Green replied that he would take care of it and that she
shouldn’t worry because she had a legitimate excuse. (Ac-
cording to Puccino, Green told her on May 1, that he had
spoken to Semsel about her lateness on April 29 and that it
was taken care of. Green was not called to rebut this testi-
mony.)
On May 3, Semsel wrote up a situation sheet regarding
Puccino’s latenesses in April and recommended that she be
suspended. According to the unrebutted testimony of
Puccino, this was the same day that she was reminded by
Semsel that she could not hand out union literature at the be-
ginning of the shift. On Friday, May 5, Puccino was told by
Semsel not to come to work on Monday and to call
McMahon instead. When Puccino asked what this was about,
Semsel told her that she had three lateness incidents in April
and that it was of no consequence that she had a good ex-
cuse for the third. Thereafter on May 9, 1989, Puccino re-
ceived a 3-day suspension from McMahon.
The Company asserts that it has a no-fault
attendance/lateness policy. In this regard, McMahon testified
that if an employee has three or more incidents in a given
month where he is late, absent, or leaves early, that will lead
to progressive discipline. This starts with verbal counseling,
goes to a written warning, to suspension and ultimately to
discharge. McMahon also testified that the policy is a no
fault policy in that no excuses are allowed for lateness or ab-
sence. There is however, nothing in the employee manual
which notifies employees of this no fault policy. Indeed, al-
though the manual expresses the importance of attendance, it
also states that ‘‘we realize that from time to time, you will
have valid reasons for being absent or tardy.’’ Moreover, the
manual does not notify employees of a rule that any com-
bination of three or more absences or latenesses during a
month will lead to some form of disciplinary action. In the
plant rule section of the manual, setting forth a wide variety
of offenses, the only mention of latenesses or absences is
rule C-3 which makes it an offense for an employee’s ‘‘fail-
ure to notify management of inability to report to work as
early as possible on the first day of absence.’’
There is no question but that discipline has been meted out
to employees for excessive latenesses or absences. The ques-
tion here is whether Puccino, in receiving the 3-day suspen-
sion, was treated differently or the same as other employees.
Company records introduced into evidence show that one
employee in the main plant, David Hall, received a suspen-
sion for attendance problems after having received a prior
verbal counseling and a written warning. On the other hand,
the Company’s records show that the rules regarding attend-
ance were not so strictly enforced at Mint-Pac where Puccino
worked. Thus, the only disciplinary action that Graciella
Vargas received was verbal counseling on April 27, 1989, for
her April latenesses. Nevertheless, she had four latenesses in
January, six latenesses in February, and eight latenesses in
March. (She received no disciplinary action in any of those
months.) Amporo Dussan left early and was late three times
in March 1989. In April 1989 she was late eight times, left
early three times, and she received verbal counseling for
those attendance deficiencies. In May 1989, Dussan had one
absence, one lateness, and one early quit but received no dis-
ciplinary action. Ken Majeske was verbally counseled for at-
tendance on October 26, 1988, and received a written warn-
ing for latenesses in November 1988. Five months later,
Majeske received a verbal counseling for two latenesses and
two absences in April 1989. In May 1989, he received a
written warning for absences and latenesses in May. In June
Majeske received another written warning for attendance de-
ficiencies during that month. At no time did Majeske receive
a suspension. Robert Olson another Mint-Pac employee who
was late three or more times during December 1988 and Jan-
uary and February 1989, received no disciplinary actions at
all.
In my opinion the General Counsel has demonstrated that
Puccino, who was an open and known union supporter, was
treated in a disparate manner from other similarly situated
employees in the Mint-Pac division. I therefore shall con-
clude that the Respondent violated Section 8(a)(1) and (3) by
giving her a 3-day suspension on May 9, l989.
10. Transfer offers to Puccino and Hailey
As noted above, there was a substantial layoff at Mint-Pac
in May 1989 caused by technological problems. This resulted
in the cancellation of the production line doing work for
IBM and required the Company to either layoff or transfer
the employees working on that product line to other areas of
the Company.
With respect to procedure, McMahon testified that the
most senior employees would be given first choice within a
range of jobs selected by him. He testified that although
transfers would be offered by seniority, he made the selec-
tion of the jobs to be offered to the individual employees,
making an attempt in to match skills, job grades, etc. That
is, according to McMahon, the most senior person although
given first choice as to jobs did not have carte blanche in
selecting from the jobs then available in the plant. Also, em-
ployees would not suffer a reduction in pay, irrespective of
the jobs they were offered and accepted. Of the group af-
fected by the layoff, the two most senior employees were re-
spectively, Puccino and Hailey.
About a week before May 11, 1989, Puccino asked Mi-
chael Dodd, the manufacturing manager of Mint-Pac (and
whose testimony I credit), if she could be laid off. She told
him that she had babysitting problems and had some eligi-
bility left for unemployment benefits. (Puccino’s daughter
was 12 years old at the time.) He rejected her request as
being against company policy.
On May 11, 1989, Puccino, being the employee with the
highest seniority, was the first employee called into
McMahon’s office. According to Puccino, she was told that
she could choose among three jobs, one in the drilling de-
partment that didn’t have overtime, one in the HASL depart-
ment which involved the handling of chemicals, and one on
the third shift. Regarding the offers, McMahon testified that
he also offered Puccino a job as a final inspector on the first
shift. In any event, Puccino turned down the jobs offered and
‘‘chose’’ to be laid off instead.
In August 1989, the Company offered Puccino a job that
opened up at Mint-Pac and that was on the second shift.
Puccino also rejected that job.
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The General Counsel asserts Puccino’s job at Mint-Pac had pro-
vided her with a good deal of overtime. He therefore contends that
the offer of a first shift job without overtime made the offered job
less desirable. Overtime, however, is not a matter of right and is de-
pendent upon the level of business. At the time that Puccino was
being offered few overtime hours versus a job at Mint-Pac which
was about to offer zero hours.
It is the General Counsel’s contention that Puccino should
have been offered jobs that other less senior employees were
offered, that McMahon chose the jobs offered to her with
discriminatory intent, and that Puccino therefore ‘‘chose’’ to
be laid off as a result of this discriminatory action. Con-
sequently, the General Counsel argues that Puccino was con-
structively discharged in violation of Section 8(a)(3) of the
Act. I do not agree.
Faced with the necessity to reduce its labor force at Mint-
Pac, the Company chose to offer job transfers in order of se-
niority. I credit McMahon’s testimony that he attempted to
match employees to the jobs available in terms of skills, ex-
perience, labor grades, etc. The first-shift jobs offered to
Puccino were regular bargaining unit jobs which, if accepted,
would have given her the same rate of pay and the same
level of benefits as her Mint-Pac job that was being elimi-
nated. Nor were they shown to be more onerous.20
In my opinion the General Counsel has not established
that the range of jobs offered to Puccino on May 11 were
discriminatorily motivated or were selected with the intent to
cause her to resign. Moreover, it is my opinion that Puccino
chose to take a layoff, not because the jobs offered were un-
desirable but for reasons of her own as evidenced by her pre-
vious request of Michael Dodd to be laid off.
In Hailey’s case, he was initially offered a job in the
HASL department. When he expressed his negative reaction
to that job, he was offered a job in the drill grinding depart-
ment which was on the same shift and paid the same wage
rate and benefits as he had at Mint-Pac. When Hailey asked
if there were any other jobs available, such as a porter’s job,
McMahon said no and Hailey accepted this transfer. As in
the case of Puccino, I do not think that the Company had
an obligation to offer Hailey any job that he would have
liked. Rather, I think that the Company could take into ac-
count nondiscriminatory factors including a desire not to
transfer an employee to a job requiring skills beneath the
ability and talents of the employee affected. Although I have
previously concluded that the Respondent discriminated
against Hailey in other respects, I do not think that the Gen-
eral Counsel has established in this instance, that the job
transfer offer that Hailey accepted in May 1989 was moti-
vated by discriminatory reasons.
I. Nature of the Strike
The General Counsel contends and I agree that the strike
which commenced on September 11, 1989, was an unfair
labor practice strike.
A strike which is caused or prolonged by an employer’s
unfair labor practices, even in part, is an unfair labor practice
strike entitling the strikers to immediate reinstatement upon
their unconditional offers to return to work. (When such an
offer to return is made, the employer would be required to
terminate permanent strike replacements in order to make
jobs available to the strikers.) That the strike may also be
motivated by economic considerations is not relevant. Mastro
Plastics Corp. v. NLRB, 350 U.S. 270 (1956); Drivers Local
662 v. NLRB, 302 F.2d 908 (D.C. Cir. 1962); Northern Wire
Corp., 291 NLRB 727 (1988); Workroom For Designers,
274 NLRB 840, 856 (1985). Moreover, the fact that a strike
commences some time after the commission of the unfair
labor practices is not sufficient grounds for asserting that it
was not motivated by the employer’s unfair labor practices.
Lapham-Hickey Steel Corp. v. NLRB, 904 F.2d 1180 (7th
Cir. 1990). On September 8, 1989, there was a notice of a
strike vote distributed by the Union to the employees. This
read:
The ballot in this strike vote shall ask: ‘‘Shall the
employees of Circuit-Wise conduct an Unfair Labor
Practices Strike?’’ Members shall vote ‘‘Yes’’ or
‘‘No.’’
The Union is recommending that Circuit-Wise work-
er decide whether or not to conduct an Unfair Labor
Practices Strike, rather than any other type of strike,
because the National Labor Relations Board and all
Federal Courts have consistently upheld the guaranteed
right of Unfair Labor Practice strikers to return to their
jobs at the conclusion of such a strike.
A majority of the employees present at the meeting voted
‘‘Yes,’’ and the strike ensued on September 11, 1989. Clear-
ly the evidence shows that the group motivation for the strike
was to protest the unfair labor practices that have been al-
leged in this proceeding. Inasmuch as I have concluded that
many of those allegations have merit, I conclude that the
strike was an unfair labor practice strike.
J. Denial of Vacation Benefits
The Respondent’s vacation policy as set forth in its em-
ployee manual is as follows:
VACATIONS
A Schedule of vacation time for hourly people based
upon credited length of service is presently in effect
and will be reviewed periodically for possible modifica-
tion as the need for change arises. Listed below is the
eligibility schedule for paid vacation time.
Less than 10 months - 1/2 day for each full month
before June 1 of vacation year not to exceed 5 days
10 months to less
than 2 years
1 week
2 years to less than 8
years
2 weeks
8 years to less than
15 years
3 weeks
15 years to less than
25 years
4 weeks
25 years and over 5 weeks
Vacation pay will be distributed on either the Thurs-
day or Friday just prior to the vacation period.
Approved vacation changes will be accommodated
whenever possible, but dependent upon the timing of
the request, vacation pay may or may not be available
before the newly approved vacation time is taken.
795CIRCUIT-WISE, INC.
21 Recent cases explicating the Texaco test include Glover Bottled
Gas Corp., 292 NLRB 873 (1988); Nuclear Fuel Services, 290
NLRB 309 (1988); Helca Mining Co., 286 NLRB 1391 fn. 1 (1987);
and Bill-Mar Foods, 286 NLRB 786 (1987).
In practice the Respondent each year distributes to the em-
ployees a form stating how much vacation time every em-
ployee has available to use during the coming year period
from June 1 through May 31. As the plant is shut down for
40 hours during early July, which is counted as part of an
employees’ vacation time, any remaining time accrued by an
employee can be used as he or she sees fit, subject to com-
pany approval regarding availability. For example, an em-
ployee who, as of June 1 of a given year, has accumulated
2 weeks of vacation, that employee will be required to take
1 week during the plant shutdown in July and can generally
take the remaining week whenever he or she chooses. (Em-
ployees can also break up their excess time using a day here
or there.)
McMahon testified that employees must use or lose their
vacation time. He testified that in order to receive vacation
pay, an employee must actually take vacation time except in
those situations where the employee either quits or is fired.
In that case, according to McMahon, the accrued vacation
pay is given at the time of an employee’s termination.
McMahon’s description of the vacation policy described
above is not consistent with the employee manual which is
quoted above and has no such condition. Moreover, his testi-
mony that employees must take vacation time to receive va-
cation pay was effectively contradicted by employees who
stated that they had received vacation pay during years when
they had not taken vacation time due to disability or other
reasons.
As of the date of the strike (Sept. 11, 1989), many of the
strikers, particularly those that had been employed longer
than 2 weeks, had accrued paid vacation time in accordance
with the terms of the employee manual. However, because
of the strike, many of these people had not taken the vaca-
tions that they otherwise were entitled to take. (As noted
above, the amount of vacation time an employee had accrued
for the year June 1, 1989 to May 31, 1990, would be based
on the number of years’ service that employee had as of June
1, 1989. Thus, by the start of the strike, the strikers had al-
ready accrued whatever vacation pay entitlement they were
supposed to receive for the year ending May 31, 1990.)
On January 22, 1990, the Union sent a letter to the Com-
pany as follows:
It has come to our attention that there are many strikers
who have not received their 1989 vacation pay. On be-
half of all of the strikers, we are writing to request that
any vacation pay that hasn’t been paid to date, be sent
to each striker with a summary sent to the Union.
On January 29, 1990, Wilgoren wrote back as follows:
As you may be aware, it is the Company’s policy
not to pay vacation pay in lieu of time off. This policy
has been uniformly applied by the Company. I call your
attention to page 41 and 42 of the Company’s Em-
ployee Manual which has previously been give to you.
‘‘Vacation pay will be distributed on either the Thurs-
day or Friday prior to the vacation period.’’
The only time the Company pays for accrued vaca-
tion time is when an employee’s employment with the
company is terminated either voluntarily or involun-
tarily.
On February 19, 1990, the Company issued a communica-
tion to its employees stating:
[T]he Union has requested that we pay strikers any
remaining l989 vacation pay. It is the CW policy that
we distribute vacation pay only when time off is sched-
uled and approved for vacation purposes. The only time
vacation payment is made in lieu of scheduled vacation
taken is when an employee is terminated or voluntarily
quits.
This is the CW policy and it will be followed with-
out exception.
Subsequent to a charge being filed on the vacation pay
question and upon notification that a complaint would be
issued, the employer on June 1, 1990, sent the following let-
ter to the strikers:
Enclosed is a check representing your remaining vaca-
tion entitlement as of May 31, l990.
[I]t has been the Company’s policy not to pay vaca-
tion pay unless vacation time is taken. However, due to
the unique circumstances of the strike, for this year
only, we will allow employees to take vacation pay
without taking time off.
In Texaco, Inc., 285 NLRB 241 (1987), the Board stated:
[T]he question of whether an employer violates Sec-
tion 8(a)(3) or (1) by refusing to continue benefit pay-
ments to a disabled employee on commencement of a
strike will be resolved by application of the test for al-
leged unlawful conduct [set forth in NLRB v. Great
Dane Trailers, 388 U.S. 26, 34 (1967).
Under this test, the General Counsel bears the prima
facie burden of proving at least some adverse effect of
the benefit denial on employee rights. The General
Counsel can meet this burden by showing that (1) the
benefit was accrued and (2) the benefit was withheld on
the apparent basis of a strike.
Once the General Counsel makes a prima facie
showing of at least some adverse effect on employee
rights, the burden under Great Dane then shifts to the
employer to come forward with proof of a legitimate
and substantial business justification for its cessation of
benefits . . . . Moreover, as under Great Dane, even if
the employer proves business justification, the Board
may nevertheless find that the employer has committed
an unfair labor practice if the conduct is demonstrated
to be ‘‘inherently destructive’’ of important employee
rights or motivated by anti-union intent.21
In the present case, the evidence establishes that the strik-
ing employees were denied their request for vacation pay be-
cause they were on strike. Also, it is clear that for those
strikers who had been employed for at least 2 years, they
would have accrued vacationentitlements as of the com-
mencement of the strike assuming that they had not used up
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their vacation time between the time of the plant shutdown
in July and before the strike started.
The Company argues that it had nondiscriminatory busi-
ness justification for refusing to pay these benefits. Thus,
McMahon testified that the Company’s policy was that em-
ployees had to take vacation time in order to receive vacation
pay and that unless used during a given year it would be for-
feited. On this point I do not credit McMahon for several
reasons. First, if this was the existing policy then it should
be contained in the employee manual which is used by the
Company to advice employees as to their benefits from and
obligations to the Company. Second, the evidence indicates
that employees who have been out of work for reasons other
than vacation have received vacation pay. Indeed, that fact
alone establishes a discriminatory intent vis a vis the strikers
as it shows disparate treatment between people who sup-
ported the union and people who did not. (This conclusion
is buttressed by my findings above, that the Company has
enforced various other rules in a disparate manner so as to
punish union supporters.)
The fact that the Company after a substantial delay paid
the accrued vacation benefits to the strikers does not make
this issue moot. For one thing, the delay in and of itself,
would constitute a violation of the Act. NLRB v. Borden,
Inc., 645 F.2d 87 (1st Cir. 1981). Further, the payments were
made only after a complaint was issued and the Company
continued to insist, as it does here, that it is entitled to deny
such benefits in the future.
CONCLUSIONS OF LAW
1. By preventing a union designated employee from speak-
ing with or questioning other employees during a safety in-
spection tour conducted by the Occupational, Safety and
Health Administration (OSHA), the Respondent has inter-
fered with the rights of employees to engage in union and
protected concerted activity within the meaning of Section 7
of the Act.
2. By refusing to allow a union designated expert to visit
the plant for the purpose of making a safety inspection, the
Respondent has violated Section 8(a)(1) of the Act.
3. By the failure to timely furnish to the Union the fol-
lowing information after the strike commenced, the Respond-
ent has violated Section 8(a)(1) and (5) of the Act:
a) Rates of pay, job classifications and dates of hire
of replacement employees.
b) Rates of pay and classifications of all employees
permanently transferred into bargaining unit jobs.
c) Names of any bargaining unit employes termi-
nated since 8/30/89 and the reasons therefore.
4. By refusing to furnish to the Union information about
customer returns which information is relevant to the Com-
pany’s proposed quality bonus plan, the Respondent has vio-
lated Section 8(a)(1) and (5) of the Act.
5. By withdrawing recognition from a portion of the bar-
gaining unit encompassing waste water technicians, the Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
6. By unilaterally increasing employee contributions for
health insurance benefits on March 1, 1989, the Respondent
has violated Section 8(a)(1) and (5) of the Act.
7. By unilaterally changing work schedules of certain of
its employees in June 1989, the Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act.
8. By enforcement of a no-solicitation rule disparately and
discriminatorily against employees who engage in union so-
licitations and activities, the Respondent has violated Section
8(a)(1) of the Act.
9. By discharging Margaret Lewis on June 15, 1988, be-
cause of her union activities, the Respondent has violated
Section 8(a)(1) and (3) of the Act.
10. By issuing a verbal counseling and a written warning
to Frank Blazi Jr. respectively on February 24 and 27, 1989,
because of his union activities, the Respondent has violated
Section 8(a)(1) and (3) of the Act.
11. By refusing to give Frank Blazi Jr. an outstanding rat-
ing with a concomitant merit raise because of his union ac-
tivities, the Respondent has violated Section 8(a)(1) and (3)
of the Act.
12. By issuing a warning to Javiar Cruz on February 24,
1989, because of his union activities, the Respondent has
violated Section 8(a)(1) and (3) of the Act.
13. By notifying Joseph Wingate that his absence from
work on February 24, 1989, was not excused, in cir-
cumstances where the Respondent had been given advance
notice that Wingate would be attending a union meeting, the
Respondent has violated Section 8(a)(1) of the Act.
14. By issuing warnings and a 3-day suspension to Lonnie
Hailey respectively on February 28, May 3, and August 25,
1989, because of his union activities, the Respondent has
violated Section 8(a)(1) and (3) of the Act.
15. By discharging Lenora Daniels on April 26, 1989, be-
cause of her union activities the Respondent has violated
Section 8(a)(1) and (3) of the Act.
16. By giving Rose Puccino a 3-day suspension on May
9, 1989, because of her union activities, the Respondent has
violated Section 8(a)(1) and (3) of the Act.
17. By failing to pay accrued vacation benefits to strikers
until June 1, 1989, the Respondent has violated Section
8(a)(1) and (3) of the Act.
18. The strike which commenced on September 11, 1989,
was caused, at least in part by the aforesaid unfair labor
practices and was an unfair labor practice strike.
19. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
20. The following unit constitutes a unit appropriate for
collective bargaining:
All full time and regular part time production and
maintenance employees employed by the employer at
its North Haven Connecticut facility including employ-
ees involved in the production of products for Mint-
Technologies, Inc., chemical technicians and waste
water treatment technicians; but excluding all other em-
ployees, lead person, office clerical employees and
guard, professional employees and other supervisors as
defined in the Act.
21. Except as found herein the Respondent has not vio-
lated the Act in any another manner encompassed by the
complaints.
797CIRCUIT-WISE, INC.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Mar-
garet Lewis and Lennora Daniels, it must offer them rein-
statement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987). Further,
Respondent must expunge from its files any references to
these discharges and notify the employees that this has been
done and that the discharges will not be used against them
in any way.
The Respondent having discriminatorily given 3-day sus-
pensions to Lonnie Hailey and Rose Puccino, it must make
them whole, with interest, for their lost earnings and must
expunge those suspensions, removing from it files any ref-
erences to these unlawful suspensions and giving notice to
the employees that this has been done and that such suspen-
sions will not be used against them in any way.
Similarly, as I have concluded that the Respondent has, for
dicriminatory reasons, issued warnings to Frank Blazi, Lon-
nie Hailey, and Javiar Cruz, as described in the Decision, it
must expunge those warnings and give notice to the affected
employees that this has been done and that such warnings
will not be used against them in any way.
As I have concluded that the Respondent refused to give
an outstanding rating to Frank Blazi because of his union ac-
tivities, it is required that the Respondent change his job
evaluation rating to outstanding and make him whole, with
interest, for the merit increase that he otherwise would have
received.
Regarding Joseph Wingate, the Respondent must change
its records to reflect that his absence on February 24, 1989,
was excused.
Having found that the Respondent has refused in timely
fashion to furnish information relevant for bargaining, the
Respondent must furnish upon request, such information con-
cluded to have been unlawfully withheld. Regarding informa-
tion about customer returns, the Respondent must furnish
such information for any 3-year period selected by the
Union, assuming that such information for the requested
years is available.
I have concluded that the Respondent unlawfully refused
to allow a health and safety expert chosen by the Union to
inspect its plant. In order to ensure that there is no undue
disruption of the Company’s operations, the parties are di-
rected to meet to decide such reasonable times and places
when such inspection or inspections shall take place.
With respect to the unilateral change in the work schedule,
the Respondent has already restored the preexisting schedule
and therefore affirmative action in that respect is required.
However, as it appears that at least some of the affected em-
ployees may have been denied overtime pay as a con-
sequence, they should be made whole with interest.
I have also concluded that the Respondent unilaterally and
unlawfully increased employee contributions for medical in-
surance on March 1, 1989. Therefore, the Respondent is re-
quired to reimburse all affected employees for such increased
contributions retroactive to March 1, 1989. Additionally, as
the subsequent interim agreement between the Union and the
Company to share the added costs was made as a con-
sequence of the Respondent’s illegal unilateral action, it is
my opinion that the interim agreement is terminable at the
option of the Union. If such option is exercised by the
Union, then the Respondent shall be liable for the increased
employee contributions for medical insurance from March 1,
1989, until such time as a new interim agreement is reached
on this subject, or until a final collective-bargaining agree-
ment is reached and executed, or until such time as the par-
ties have bargained in good faith and reached an impasse re-
garding medical insurance.
Regarding the delay in paying the strikers their accrued
vacation pay, it appears that such payments were made in
June 1989. However, as there might be some disputes as to
whether particular employees received he correct amounts, I
shall leave any such disputes for the compliance stage of the
proceeding.
Having concluded that the strike which commenced on
September 1, 1989, was an unfair labor practice strike, I
shall order the Respondent to reinstate the strikers if and
when they make offers to return to work, dismissing if nec-
essary any employees hired after September 11, 1989. In this
respect, the Board in North American Coal Corp., 289
NLRB 788 (1988), adopted the judge’s recommended Order
which provided for a reinstatement remedy even where the
unfair labor practice strikers had not yet offered to return to
work. The administrative law judge at footnote 18 stated:
North American argues that it is premature to consider
in this proceeding whether the strike is an unfair labor
practice strike since the strike is ongoing and since (as
of the end of the hearing, at least), no employees have
made unconditional offers to return. And it is true that
the General Counsel could properly have litigated in a
subsequent proceeding the question of whether the
strike is an unfair labor practice strike. E.g., Inter-
national Business Systems, 258 NLRB 181, 193 (1981)
. . . . But the Board long ago concluded that an appro-
priate alternative approach is to deal with that question
in the proceeding that considers the actions alleged to
constitute the underlying unfair labor practice even
though the strike is then still underway. J.H. Rutter Rex
Mfg. Co., 115 NLRB 388, 414 (1956), enfd. 245 F.2d
594, 597–598 (5th Cir. 1957).
However, to the extent that there are any claims that cer-
tain strikers are not entitled to reinstatement because of strike
misconduct or other valid reasons, those issues are left to the
compliance stage of this proceeding. Windham Community
Memorial Hospital, 230 NLRB 1070 (1977).
Finally, I have concluded that the Respondent has unlaw-
fully withdrawn recognition from a part of the bargaining
unit when it created the position of waste water treatment
technician and refused to bargain in relation to those employ-
ees. As I have found that this new job category encompassed
work which previously had been part of the bargaining unit,
and as I have found that there was no significant change in
job duties, this ‘‘new position constitutes an accretion to the
certified collective-bargaining unit. Accordingly, I shall mod-
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 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.
ify the unit to include the job category of waste water treat-
ment technician.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended22
ORDER
The Respondent, Circuit-Wise, Inc., Hartford, Connecticut,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Preventing a union-designated employee from speaking
with or questioning other employees during safety inspection
tours conducted by the Occupational, Safety and Health
dministration (OSHA).
(b) Refusing to allow a union-designated expert to visit the
plant for the purpose of making a safety inspection.
(c) Failing to timely furnish to the Union the following in-
formation after the strike commenced;
(1) Rates of pay, job classifications and dates of hire
of replacement employees.
(2) Rates of pay and classifications of all employees
permanently transferred into bargaining unit jobs.
(3) Names of any bargaining unit employees termi-
nated since 8/30/89 and the reasons therefor.
(d) Refusing to furnish to the Union information about
customer returns which information is relevant to the Com-
pany’s proposed quality bonus plan.
(e) Withdrawing recognition from a portion of the bar-
gaining unit encompassing waste water treatment technicians.
(f) Unilaterally increasing employee contributions for
health insurance benefits.
(g) Unilaterally changing work schedules of its employee
(h) Enforcing a no-solicitation rule disparately and
discriminatorily against employees who engage in union so-
licitation and activities.
(i) Discharging employees because of their union or pro-
tected concerted activities.
(j) Issuing warnings, suspensions, or other disciplinary ac-
tions to employees because of their union or protected con-
certed activities.
(k) Refusing to give employees deserved job evaluation
ratings and concomitant merit raise because of their union or
protected concerted activities.
(l) Notifying employees that their absences are not ex-
cused in circumstances where the Respondent had been given
advance notice that such employees would be attending
union meetings and in the absence of a demonstrated need
for such employees to be at work.
(m) Failing to pay accrued vacation benefits to employees
because they are engaged in a strike.
(n) 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) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All full time and regular part time production and
maintenance employees employed by the employer at
its North Haven Connecticut facillity including employ-
ees involved in the production of products for Mint-
Technologies, Inc., chemical techninicians and waste
water treatment technicians; but excluding all other em-
ployees, leadperson, office clerical employees and
guard, professional employees and other supervisors as
defined in the Act.
(b) Offer immediate and full reinstatement to Margaret
Lewis and Lennora Daniels to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the
remedy section of the decision.
(c) Rescind the 3-day suspensions of Lonnie Hailey and
Rose Puccino and make them whole with interest, for any
loss of earnings or other benefits suffered in the manner set
forth in the remedy section of the decision.
(d) Remove from its files any references to the unlawful
discharges, suspensions, and warnings respectively given to
Margaret Lewis, Lennora Daniels, Lonnie Hailey, Rose
Puccino, Frank Blazi Jr., and Javiar Cruz, and notify these
employees, in writing, that this has been done and that the
disciplinary actions will not be used against them in any
way.
(e) Change its record regarding Joseph Wingate, to reflect
that his absence on February 24, 1989, was excused.
(f) Change the May 1989 evaluation of Frank Blazi Jr. to
outstanding and make him whole, with interest, for any loss
of earnings or benefits that he suffered.
(g) Upon request, meet with the Union to decide on rea-
sonable times and places when the Union can have its des-
ignated health and safety expert visit and inspect the plant.
(h) Upon request, furnish to the Union, in the manner set
forth in the remedy section of this decision the information
found to have been unlawfully withheld.
(i) Make whole, with interest, any employees who as a re-
sult of the change in work schedules in June 1989, lost over-
time pay.
(j) Reimburse all employees, with interest, from March 1,
1989, for the increased contributions deducted from their pay
for medical benefits. In the event that the Union wishes to
revoke the May 1989 interim agreement, the Respondent
shall reimburse the employees for their share of the increased
medical coverage contributions from March 1, 1989, until
such time a new interim agreement regarding medial benefits
is reached, or until a final collective-bargaining agreement is
reached and executed, or until the Respondent bargains in
good faith until impasse about medical coverage, whichever
occurs first.
(k) Offer to the strikers upon application, reinstatement to
their former or substantially equivalent jobs without preju-
dice to their seniority or any other rights and privileges, and
799CIRCUIT-WISE, INC.
23 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.’’
dismiss if necessary any strike replacements hired after the
strike commenced on September 11, 1989.
(l) 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 ther records necessary to analyze the
amount of backpay due under the this of this Order.
(m) Post at its facility in New Haven, Connecticut, copies
of the attached notice marked ‘‘Appendix.’’23 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 34 after being signed the Respondent’s anthorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(n) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.