Columbian Distribution Services

National Labor Relations Board - Board Decisions

Mar 27, 1996

320 N.L.R.B. 1068 (N.L.R.B. 1996)

1068
320 NLRB No. 132
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent excepts, arguing that the judge inadvertently
erred when stating in sec. C, par. 4, of his decision that ‘‘I find the
testimony of Wickard and Haisma to be less convincing than that of
Wickard and Clary.’’ (Emphasis added.) The totality of the judge’s
decision and the record make clear that it was General Counsel wit-
nesses Holzgen and Haisma that the judge found less convincing.
We modify his decision accordingly.
1 All dates are in 1994 unless otherwise indicated.
2 The original complaint was withdrawn and the proceedings were
deferred to the parties’ contractual grievance arbitration procedures
on September 9, 1994, pursuant to the Board’s policies as explicated
in Collyer Insulated Wire, 192 NLRB 837 (1971), and United Tech-
nologies Corp., 268 NLRB 557 (1984). That deferral was revoked
upon the Regional Director’s conclusion that Respondent had ‘‘en-
gaged in conduct inconsistent with its earlier expression of willing-
ness to arbitrate the underlying dispute and has thus prevented or im-
peded the prompt resolution of the underlying dispute’’ through the
contractual procedures. On brief herein, Respondent has opted not to
contest this conclusion, stating, ‘‘At this late date, the Employer
does not intend to proceed (again) through the grievance arbitration
procedures, and therefore will not address the deferral issue.’’
3 Respondent’s unopposed motion to correct the record is granted.
Columbian Distribution Services, Inc. and General
Teamsters Union Local No. 406, International
Brotherhood of Teamsters, AFL–CIO. Case 7–
CA–36062
March 27, 1996
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND FOX
On January 25, 1996, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed limited 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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Thomas Doerr, Esq., for the General Counsel.
Jack C. Clary, Esq. and Jack R. Clary, Esq. (Clary, Nantz,
Wood, Hoffius & Cooper), for the Respondent.
Ronald E. Holzgen, Business Representative, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Grand Rapids, Michigan, on November 7,
1995, based on a charge filed by General Teamsters Union
Local No. 406, International Brotherhood of Teamsters,
AFL–CIO (the Union or the Charging Party) on June 14,
1994,1 and an amended complaint which was reissued on
June 14, 1995.2 The amended reissued complaint alleges that
Columbian Distribution Services, Inc. (Respondent, the Em-
ployer, or CDS) violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act) by threatening its em-
ployees with changes in wages, hours, and other terms and
conditions of employment and by reducing an employee’s
hours. Respondent’s timely filed answer denies the commis-
sion of any unfair labor practices.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Preliminary Conclusions of Law
The Respondent, a corporation, with its principal office
and place of business in Grand Rapids, Michigan, is engaged
in the transportation and warehousing of commodities. Annu-
ally, it directly transports goods and materials valued in ex-
cess of $50,000 from its Grand Rapids, Michigan facilities
to points located outside the State of Michigan. The com-
plaint alleges, Respondent admits, and I find and conclude
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. The complaint
alleges, Respondent admits, and I further find and conclude
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has long represented Respondent’s warehouse
employees and drivers. Since about 1986, it has also rep-
resented Respondent’s office clerical employees in a separate
unit. Certification in that latter unit followed a short recog-
nitional strike and an election.
At the times involved herein, from about January to June
1994, Richard Wickard was Respondent’s vice president and
general manager; he became its president in December. Re-
spondent’s counsel and bargaining representative was Jack R.
Clary. During the same period, Ronald Holzgen was the
Union’s business representative; Larry Haisma was the stew-
ard in the warehouse and drivers unit; and Haisma subse-
quently became a paid union representative.
Abdulio Negron and Donald Nelson were Respondent’s
janitors. Until March 1994, they were not represented by any
labor organization. Negron was the more senior of the two.
Nelson had been hired in December 1992. As he was retired
from other employment, he received no fringe benefits but
was hired at a greater rate of pay. Until June, Negron and
Nelson worked on the first shift, 6 a.m. to 2 p.m., Mondays
through Fridays. Nelson did not always work 40 hours each
week. He had commitments to social organizations which
met during the workday and Respondent accommodated him
by allowing him the necessary time off.
1069COLUMBIAN DISTRIBUTION SERVICES
4 Holzgen acknowledged that were discussions of sanitation prob-
lems, ‘‘probably’’ at the point in the negotiations when the parties
were discussing the par. 6. Haisma had no recollection of that dis-
cussion but may not have been at the bargaining table at all times.
5 Sec. 4.1, Management Rights, reserved to management the ex-
clusive right, inter alia, to determine schedules of work. The contract
also provided for part-time employees and disclaimed any guarantee
of hours.
6 Neither Clary nor Wickard alluded to nor contradicted Holzgen’s
testimony as to this. I find it credible. In fact, there was no reduction
in the janitorial work motivating this action. Holzgen further claimed
that he suggested that, as there was no reduction in the amount of
work, there was no reason for any reduction in Nelson’s hours. He
further claimed to believe that management had agreed with that as-
sumption. These latter claims are belied by the statements in the affi-
davits of both Holzgen and Haisma to the effect that the change in
Nelson’s hours ‘‘was left that this was a business decision.’’ One
can only speculate on the assumptions Holzgen made which appar-
ently lead him, in seeking the employees’ ratification of the agree-
ment, to assure Nelson that his hours would not likely be reduced.
7 Haisma did not immediately recall it in the same terms. Initially,
he recalled Wickard stating, ‘‘[B]ecause of restructuring the janitory
system . . . that [Nelson’s] hours would have to be changed.’’ It
Continued
At issue is whether Respondent’s change and reduction of
Nelson’s hours, proposed by the Employer and ostensibly
agreed to by the Union on May 24, and its alleged statement
that it was doing so because of the union activity, violated
Section 8(a)(3) and (1).
B. Union Activity Recognition and Agreement
In January or February, Negron and Nelson expressed an
interest in union representation. Haisma related this informa-
tion to Holzgen, received authorization cards for the employ-
ees, secured their signatures, and returned those cards to
Holzgen. Holzgen made a demand for recognition and filed
an RC petition.
In early March, Clary proposed to the Union’s secretary
treasurer, Carl Schobey, that if the Union would agree to in-
clude the janitors in the clerical unit, the Employer would
recognize the Union as their representative. Schobey agreed.
On March 17, Holzgen and Wickard met and formally exe-
cuted a recognition agreement which placed the janitors in
the unit with office and clerical employees. It further pro-
vided that the Employer and the Union would meet to bar-
gain an addendum for the wages and other terms and condi-
tions of employment of the janitors.
There were two bargaining sessions. At the first, the
Union presented its proposals. One sought full fringe benefit
coverage under the clerical contract for the janitors. At the
second, held on May 24, the Company’s proposals were put
forward. Each item was discussed and, with some modifica-
tions, that proposal formed the basis for the agreement
reached that day.
Respondent’s proposal excluded all those in the janitorial
classification from most of the fringe benefits of the clerical
agreement. That proposal, with one change granting them un-
paid holidays and personal days, was quickly agreed to. It in-
cluded a separate proposal to continue Negron’s health insur-
ance. Respondent also specifically proposed, in paragraph 5,
to exclude Nelson from all fringe benefits for the remainder
of that contract’s term, while continuing his present rate of
pay. In making that proposal, it referred to Nelson as a
‘‘part-time employee.’’
Paragraph 6 stated as follows: 6. ‘‘Note that Mr. Nelson
will soon be scheduled to work from 3 p.m. to 8 p.m. four
days per week.’’
According to what I find to be the more credible evidence
as offered by Clary (see infra), Holzgen stated, ‘‘You can’t
change hours because of union activity.’’ Clary denied any
discriminatory motivation. Rather, he stated, they had de-
cided to broaden the janitorial coverage because of sanitation
problems.4 Holzgen agreed that the clerical agreement gave
Respondent the authority to change hours and work sched-
ules without notice to the Union.5 He asked and was assured
that there had been no reduction in the amount of work
available.6
The parties caucused to prepare their best and final offers.
During the caucus, Holzgen presented the Employer’s pro-
posal to Nelson and Negron. Nelson initially objected to the
language cutting his hours. Apparently upon an assurance
from Holzgen that it would not happen, he assented to the
contract, as did Negron.
After the caucus, the parties agreed to the terms of an ad-
dendum for the janitors, including the language of paragraph
6, quoted above. In that agreement, the Employer’s proposed
wage scale was increased, at least for Negron, and Respond-
ent’s proposal to continue health benefits for Negron was
amended to give him the option of a cash payment in lieu
of insurance. Respondent also agreed that Nelson would be
eligible for holiday and vacation pay so long as he regularly
worked more than 24 hours per week (which, under the Em-
ployer’s proposal, he would not be scheduled to do).
C. Alleged Expressions of Animus
Allegedly, according to Holzgen, when they had met about
March 17, Wickard complained about Nelson’s having gone
to the Union for representation. Holzgen recalls Wickard as
stating:
Don Nelson pisses me off . . . Nelson is a retiree from
another employer . . . He’s a close personal friend of
a supervisor . . . and said ‘‘I don’t need any benefits,
I don’t need anything like that, I just need to supple-
ment my retirement income.’’ We gave him a job be-
cause he’s a friend of . . . the supervisor. Now he
comes to you and wants to join the Union and wants
to negotiate for benefits.
Similarly, Haisma claimed that sometime in March or
April, he spoke with Wickard about the janitors’ union activ-
ity. Purportedly, Wickard told him that he was ‘‘just a little
bit upset with’’ and ‘‘disappointed in’’ Nelson because Nel-
son had been hired as a favor to one of the supervisors. Nei-
ther Holzgen nor Haisma claim that there were any ref-
erences to Nelson’s hours, or threats of retribution, in these
conversations.
In the May 24 negotiations. when Holzgen questioned why
Respondent had proposed to cut and change Nelson’s hours
(discussed above), Wickard allegedly stated (according to
Holzgen), ‘‘This whole union thing has forced us to re-evalu-
ate our janitors.’’7
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was only after he was asked whether Wickard had said anything
about the hours being changed ‘‘in connection with the janitors
going to the union’’ that Haisma recalled Wickard as stating, ‘‘[T]
because of Mr. Nelson joing the union, they would have to restruc-
ture their janitorial.’’ The statement as Haisma initially recalled it,
although he attributed it to Wickard rather than Clary, tends to cor-
roborate Clary’s testimony and contradict that of Holzgen.
8 I find no basis for concluding that Respondent feared another
work stoppage such as had occurred in 1986 in connection with the
demand for recognition on behalf of the office and clerical employ-
ees.
9 FPC Advertising, 231 NLRB 1135, 1136 (1977).
10 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981);
NLRB v. Transportation Management Corp., 462 U.S. 393 399
(1983).
Wickard convincingly denied making any of these state-
ments. In that meeting, both he and Clary stated, only Clary
spoke for the Employer; Wickard did not speak beyond
greeting the participants. I find the testimony of Wickard and
Haisma to be less convincing than that of Wickard and
Clary. Their testimony was somewhat vague and imprecise;
Holzgen recalled few details of what was said on May 24
other than Wickard’s alleged threat and acknowledged that
he did not ‘‘have that good [of a] recollection of the meet-
ing.’’ Significantly, there were no references to the pre-May
24 statements of alleged animosity in either Holzgen’s or
Haisma’s affidavits, given on June 24, much closer in time
to the events than this hearing. I note that no animosity was
ever expressed to Nelson, that Wickard was experienced in
labor relations, somewhat less likely to openly express union
animus than a manager who was not, and that, after recogni-
tion and the change in Nelson’s hours, Respondent continued
to accommodate Nelson with time off for his social activities
and continued to offer him extra hours. Similarly reflecting
a lack of animosity are the facts that Respondent has a long-
standing relationship with the Union and recognized the
Union as the janitor’s representative quickly and with no
pressure being applied.8
D. The Change
Sometime after May 24, Nelson’s hours were changed in
line with the language of paragraph 6. He worked four after-
noons a week, beginning at 2 p.m., and he averaged about
20 hours per week. However, in the first week after the
change, he worked full time, filling in for Negron who was
on vacation. On a number of Fridays, Nelson was offered
overtime to be worked at the end of his shift. He declined
those offers.
Prior to the change, Nelson and Negron bore the principal
responsibility for cleaning the warehouse. Nelson also paint-
ed, made safety inspections of the lights, alarms, fire extin-
guishers and doors, checked the rodent traps and, when nec-
essary, went out to purchase cleaning materials and supplies.
Nelson acknowledged that, from time to time, others also did
some of this work. After June 1, he no longer did the safety
inspections, painting, or purchasing. On one occasion, he
learned that some painting had been done in his absence on
a weekend. Other employees, including some nonunit casual
workers, continued to do janitorial work from time to time.
According to Wickard, whose testimony I credit, Nelson
had never been the only one to paint or clean. Other employ-
ees mopped and picked up; they also painted. After June,
some painting may have been done by employees called in
to work at their warehouse jobs on a Saturday, as a way of
filling out the hours which they were guaranteed when called
in for weekend overtime.
Nelson voluntarily left Respondent’s employ in September.
There is no contention that he was constructively discharged.
E. The Employer’s Rationale
Beginning in the summer of 1993, Respondent began to
expand on its storage of raw food products, including raisins
and nuts, used for the production of cereals by a national
manufacturer with plants in the area and by its suppliers. In
January, it encountered a problem when a customer found ro-
dent droppings in a shipment of raw materials and rodent
droppings were observed in the warehouse. The immediate
response was to ask everyone to pick up trash around the
warehouse. The problem continued into March when an in-
spection, although generally satisfactory, found further evi-
dence of rodents.
Wickard concluded that Respondent needed to expand the
coverage of its janitorial staff. Respondent’s was a three-shift
operation and, with janitors working only on the first shift,
the dirt created by the other two shifts accumulated until the
start of the next day’s first shift. Twelve hours of janitorial
service, covering half of the full workday, he concluded,
would be ‘‘a good start.’’ Wickard had decided on this
change by May, he claimed, but withheld implementation
pending the negotiations for the janitor’s addendum.
At first blush, it would appear contradictory for Respond-
ent to seek to expand its sanitation coverage by reducing the
hours worked by the janitors from about 16 per day to about
12. Wickard explained, however, that the work was more ef-
ficiently performed after the end of the first shift because
there were fewer people present to impede cleanup efforts.
Additionally, he noted, when Nelson and Negron worked the
same hours, they sometimes worked together, performing
functions which one man could do alone. He also noted that,
where necessary, one of them could be asked to work addi-
tional hours. The 12-hour arrangement, he said, was a start-
ing place for restructuring the work of the janitors.
While I am left with some questions as to the validity of
this rationale, I do not find it so unreasonable as to warrant
a substitution of this administrative law judge’s business
judgment for that of the Employer.9 I must note that there
is no evidence that Respondent hired or assigned anyone else
to regularly perform janitorial work while Nelson continued
in his employment or that Nelson’s replacement, if any,
worked any different or greater hours than Nelson had. It
would thus appear that the altered hours satisfied Respond-
ent’s business objectives.
F. Analysis
The General Counsel’s complaint alleges that Wickard
violated Section 8(a)(1) by stating, in the presence of Haisma
who was then still an employee, that Respondent was reduc-
ing and changing Nelson’s hours because of the union activ-
ity. As I have found insufficient credible evidence to support
this allegation, I shall recommend that it be dismissed.
Wright Line10 provides the analytical mode to determine
Respondent’s motivation with respect to the 8(a)(3) allega-
tion. Pursuant to that test, General Counsel must establish a
1071COLUMBIAN DISTRIBUTION SERVICES
11 See Farmer Bros. Co., 303 NLRB 638, 649 (1991).
12 Fluor Daniel, Inc., 304 NLRB 970 (1991).
13 As I find no discrimination, I need not reach the issue of wheth-
er, by agreeing to the addendum which specifically provided for the
reduction and change in hours, the Union and/or Nelson waived their
statutory rights. See Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983), and NLRB v. Magnavox Co., 415 U.S. 322 (1974).
See also Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).
14 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.
requisite prima facie case by showing union or protected ac-
tivity, knowledge, animus and adverse action.11 Once the
General Counsel has put forth a prima facie case, the burden
shifts to the Respondent to demonstrate that the same action
would have taken place even absent any protected conduct.12
The General Counsel has shown union activity, knowledge
and adverse action. However, as I have discredited his wit-
nesses with respect to the evidence of animus, I find that es-
sential element to be lacking. Absent animus, the prima facie
case falls and the General Counsel has failed to sustain his
burden of proof on the 8(a)(3) allegation.13
Even if I were to find that the evidence presented by the
General Counsel rises to the level which would warrant a
shifting of the evidentiary burden, I would find that Re-
spondent has successfully rebutted the prima facie case. In
addition to rebutting the evidence of animus, Respondent has
presented a rationale for its actions, a business judgment
which, as noted above, I am not at liberty to reject. I am
compelled to find that Respondent would have changed and
reduced Nelson’s hours whether or not the janitors chose to
be represented by the Union.
Accordingly, I shall recommend that the 8(a)(3) allegation
be dismissed.
CONCLUSION OF LAW
Respondent has not violated the Act in any manner alleged
in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The complaint is dismissed.