Comau, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 2016

364 NLRB No. 48 (N.L.R.B. 2016)

364 NLRB No. 48
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Comau, Inc. and Wisne Automation Employees Asso-
ciation. Case 07–CA–073073
July 14, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On December 26, 2012, Administrative Law Judge
Mark Carissimi issued the attached decision. The Re-
spondent and the General Counsel each filed exceptions,
a supporting brief, and an answering brief.1 The General
Counsel filed a reply brief.

1 In addition, pursuant to Reliant Energy, 339 NLRB 66 (2003), the
Respondent filed a postbrief letter calling the Board’s attention to re-
cent case authority, and the General Counsel filed a letter in opposi-
tion. In the letter, the Respondent, for the first time, contests the
validity of Lafe Solomon’s appointment as the Board’s Acting
General Counsel and cites to SW General, Inc. v. NLRB, 796 F.3d 67,
74–75 (D.C. Cir. 2015), cert. granted __ U.S.L.W. __, No. 15–1251,
2016 WL 1381487 (U.S. June 20, 2016), as support. The Respondent
did not raise any question about the authority of the Acting General
Counsel (AGC) in its answer to the consolidated complaint, during the
hearing before the administrative law judge, in its posthearing brief, or
in its exceptions to the Board. Under these circumstances, we reject the
Respondent’s challenge to the AGC’s authority as untimely. See also
Boeing Co., 362 NLRB No. 195, slip op. at 1 fn. 1 (2015).
Moreover, even if we were to consider the Respondent’s challenge
to the authority of the AGC, we would not find it appropriate to dismiss
the complaint. On May 19, 2016, General Counsel Richard F. Griffin
Jr. issued a Notice of Ratification in this case which states, in relevant
part,
The prosecution of this case commenced under the authori-
ty of Acting General Counsel Lafe E. Solomon during the peri-
od after his nomination on January 5, 2011, while his nomina-
tion was pending with the Senate, and before my confirmation
on November 4, 2013.
The United States Court of Appeals for District of Colum-
bia Circuit recently held that Acting General Counsel Solo-
mon's authority under the Federal Vacancies Reform Act
(FVRA), 5 U.S.C. § § 3345 et seq., ceased on January 5, 2011,
when the President nominated Mr. Solomon for the position of
General Counsel. SW General, Inc. v. NLRB, __ F.3d __, 2015
WL 4666487, (D.C. Cir., Aug. 7, 2015). The Court found that
complaints issued while Mr. Solomon's nomination was pend-
ing were unauthorized and that it was uncertain whether a law-
fully-serving General Counsel or Acting General Counsel
would have exercised discretion to prosecute the cases. Id. at
*10.
I was confirmed as General Counsel on November 4, 2013.
After appropriate review and consultation with my staff, I have
decided that the issuance of the complaint in this case and its
continued prosecution are a proper exercise of the General
Counsel's broad and unreviewable discretion under Section
3(d) of the Act.
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 decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
The Respondent, Comau, Inc., designs and installs as-
sembly lines and robotic equipment for the automotive
industry. It operates five production facilities in the De-
troit, Michigan area, including the facilities in Wisne,
Novi, and Royal Oak involved in this proceeding. De-
pending on project specifications and customer needs,
employees may be temporarily reassigned from their
home plant to any one of the other five facilities or to a
client’s site to perform field service work.
Charging Party Wisne Automation Employees Associ-
ation (WAEA) represents the 44 production and mainte-
nance employees at Wisne, and the Novi Industries Em-
ployees Association (NIEA) represents about 200 pro-
duction and maintenance employees at Novi. Employees
at Royal Oak are unrepresented.
This case arises from the Respondent’s temporary
shutdown of the Wisne facility on December 1, 2011, its
transfer of 12 WAEA-represented employees to Novi
and Royal Oak, and its application of the Novi and Royal

My action does not reflect an agreement with the appellate
court ruling in SW General.
Rather, my decision is a practical response aimed at facili-
tating the timely resolution of the charges that I have found to
be meritorious while the issues raised by SW General are being
resolved. Congress provided the option of ratification by ex-
pressly exempting "the General Counsel of the National Labor
Relations Board" from the FVRA provisions that would oth-
erwise preclude the ratification of certain actions of other per-
sons found to have served in violation of the FVRA. Id. at *9
(citing 5 U.S.C. § 3348(e)(l)).
For the foregoing reasons, I hereby ratify the issuance and
continued prosecution of the complaint.
2 The General Counsel and the Charging Party 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.
In affirming the judge’s findings, we do not rely on his citation to
General Die Casters, Inc., 359 NLRB No. 7 (2012) or Comau, Inc.,
358 NLRB 593 (2012), because the Supreme Court’s decision in NLRB
v. Noel Canning, 134 S.Ct. 2550 (2014), rendered those decisions inva-
lid.
3 We shall modify the judge’s recommended Order to conform to the
violations found, the amended remedy, and the Board’s standard reme-
dial language. We shall also substitute a new notice to conform to the
Order as modified and in accordance with our decision in Durham
School Services, 360 NLRB No. 85 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Oak shop rules to those employees while they worked at
those facilities.4
As further discussed below, we agree with the judge
that the Respondent violated Section 8(a)(5) and (1) by
announcing the temporary shutdown of the Wisne facili-
ty and the transfer of WAEA-represented employees and
their work to Novi and Royal Oak without providing
WAEA notice and an opportunity to bargain over the
effects of the shutdown and transfer. We also agree with
the judge that, by applying the Novi and Royal Oak shop
rules to the Wisne employees temporarily working at
those facilities, the Respondent violated Section 8(a)(5)
and (1) by both failing to continue in effect WAEA’s
collective-bargaining agreement and unilaterally chang-
ing WAEA-represented employees’ terms and conditions
of employment without notice to WAEA.5
Facts
WAEA and the Respondent have had a collective-
bargaining relationship covering the Respondent’s Wisne
employees since 2000. The most recent collective-
bargaining agreement was effective from August 22,
2011 through May 3, 2015. Article 25 of WAEA’s most
recent and previous contracts contains shop rules, which
primarily concern leave and attendance. During negotia-
tions in late 2011 and early 2012 for the most recent
agreement, the Respondent’s key objective was to bar-
gain for more restrictive attendance rules. The Respond-
ent was unsuccessful, however, and WAEA shop rules in
the most recent agreement remained virtually unchanged
from previous contracts.
On December 1, 2011, the Respondent notified the
WAEA that it was temporarily shutting down the Wisne
facility “[d]ue to business issues”; the same day, the Re-
spondent began moving equipment out of the facility.
The 12 employees then at Wisne were transferred to

4 The terms “Wisne employees” and “WAEA-represented employ-
ees” refer to the same individuals and are used interchangeably in this
decision.
5 The judge also found four independent 8(a)(1) violations, which we
adopt for the reasons stated in his decision.
Contrary to our dissenting colleague, we agree with the judge that
Novi Plant Manager Tom Durocher’s comments to Wisne employee
Jack Vargo, that he heard that Vargo was attempting to influence Novi
employees to vote against the NIEA contract, constituted a coercive
interrogation. Durocher’s comments called for and, in fact, elicited
Vargo’s response that it was “untrue” he had engaged in the union
activity of which he was accused. As the dissent recognizes, an em-
ployer’s declarative statements can constitute an interrogation where
those statements reasonably call for an employee to respond and reveal
his union sympathies or whether he has engaged in protected activity.
See, e.g., Children’s Services International, 347 NLRB 67, 79–80
(2006) (finding that manager interrogated employee when she accused
her of creating a union flyer).
Novi and Royal Oak effective December 5.6 On January
23 and February 3, 2012, the Respondent implemented
new shop rules at Novi and Royal Oak.7 Both sets of
rules conflicted with, and were more restrictive than,
WAEA shop rules on the subjects of overtime, vacation
policy, sick and personal days, and discipline. Further,
under the new rules, temporary transferees to those facili-
ties would no longer retain their seniority rights.
Without bargaining with WAEA, the Respondent in-
formed employees that the new Novi and Royal Oak
shop rules would be applied uniformly to all employees,
including WAEA-represented employees, and that em-
ployees who did not follow the rules would be subject to
discipline, including termination. WAEA objected. The
Respondent conceded that the provisions of the WAEA
contract regarding wages, health insurance, and benefits
continued to apply to WAEA-represented employees
working away from Wisne, but asserted that the Wisne
shop rules were plant-specific and did not apply outside
of that facility. WAEA filed several grievances objecting
to discipline Wisne employees received under the newly
imposed rules.8
Discussion
1. The 8(a)(5) failure to engage in effects bargaining
The judge found that the Respondent violated Section
8(a)(5) and (1) by failing to give WAEA notice and an
opportunity to bargain over the effects of the temporary
closure of Wisne and the transfer of unit work and unit
employees to Novi and Royal Oak. The judge found that
WAEA had no obligation to request bargaining in this
instance because the Respondent presented it with a fait
accompli. We affirm the finding.9
The Respondent asserts that the fait accompli analysis
applies only to decisional bargaining cases; it reiterates
its argument that the WAEA waived its right to effects
bargaining by failing to request it. The Respondent fur-
ther argues that it was privileged to temporarily close the
Wisne facility and transfer the unit work and unit em-
ployees to Novi and Royal Oak without bargaining over
effects under the “contract coverage” standard applied by

6 Ten were transferred to Novi and two to Royal Oak. The remain-
ing Wisne employees were already working at the Respondent’s other
facilities, on field work assignments, or on medical leave.
7 Prior to February 3, Royal Oak was a temporary facility and did
not have a permanent employee complement.
8 On June 5, 2012, the Respondent reopened the Wisne facility and
all WAEA-represented employees, including those working at Novi
and Royal Oak, returned to the facility.
9 No exceptions were filed regarding the judge’s failure to order a
limited backpay remedy under Transmarine Navigation Corp., 170
NLRB 389 (1968).
COMAU, INC. 3
some courts of appeals. We find no merit to either of
those arguments.
It is well established that an employer is obligated to
bargain over the effects of a temporary closure and relo-
cation of work even when it does not have a duty to bar-
gain over the decision itself. See, e.g., First National
Maintenance Corp. v. NLRB, 452 U.S. 666, 681–682
(1981); Metropolitan Teletronics, 279 NLRB 957, 959
(1986) (employer obligated to bargain with union over
effects on employees of decision to close and relocate),
enfd. 819 F.2d 1130 (Table) (2d Cir. 1987). Moreover,
bargaining over the effects of a decision must be con-
ducted “in a meaningful manner and at a meaningful time
. . . .” First National Maintenance Corp., supra 452 U.S.
at 681–682. An element of “meaningful” bargaining is
timely notice to the Union. To be timely, the notice must
be given “sufficiently before . . . actual implementation
so that the union is not confronted at the bargaining table
with . . . a fait accompli.” Willamette Tug & Barge Co.,
300 NLRB 282, 283 (1990). See also Allison Corp., 330
NLRB 1363, 1366 (2000); Los Angeles Soap Co., 300
NLRB 289, 289 fn. 1 (1990). Waiver will not be found
where the employer simply announces and implements
changes as if it had no obligation to bargain over the ef-
fects of the changes. See Naperville Jeep/Dodge, 357
NLRB 2252, 2272 (2012), and cases cited therein, enfd.
Dodge of Naperville v. NLRB, 796 F.3d 31 (D.C. Cir.
2015), cert. denied 136 S.Ct. 1457 (2016).
Here, the Respondent first notified WAEA of its deci-
sion on December 1 and began moving equipment from
the Wisne facility the same day. A day or two later, at a
meeting requested by WAEA,10 the Respondent present-
ed the shutdown and transfer as final. As to the transfer,
prior to this meeting, the Respondent had already deter-
mined where each of the 12 unit employees who re-
mained at Wisne would be transferred and told WAEA
that those employees were to report to their new posts the
very next work day, Monday, December 5. In these cir-
cumstances, we find that the Respondent’s December 1
shutdown announcement and its December 3 order that
employees report to their new posts the next working day
was a fait accompli that precluded meaningful effects
bargaining, and that WAEA did not waive its right to
bargain.11

10 The judge found that the meeting had occurred “approximately on
December 3.” Employee (and WAEA Treasurer) Paul Ciaramitaro
testified that the meeting occurred Friday, December 2, the day after
the announcement. Neither of the Respondent’s agents at the meeting,
Durocher or Novi supervisor, Mark Corich, testified at the hearing.
11 We disagree with the dissent’s suggestion that there can be no
“fait accompli” in an effects-bargaining case unless the effects them-
selves “cannot be changed.” Board law is clear that, absent exigencies
not present here, notice and an opportunity to bargain must be given
The dissent contends that this is an “effects-bargaining
success story” because the Respondent met with the Un-
ion once and, during that meeting, agreed to switch the
job assignments of employees LaForest and Ciaramitaro,
who were both present at the meeting. Unlike the dis-
sent, we do not view this single accommodation as sup-
porting the conclusion that the parties engaged in mean-
ingful effects bargaining. First National Maintenance,
supra 452 U.S. at 681–682. The record shows that
WAEA requested the meeting in order to learn why the
Respondent had decided to shut down Wisne and if
Wisne employees would still have their jobs; in short,
WAEA sought information about a decision that was
already made and in the process of implementation. The
next business day, all 12 of the Wisne employees were
required to report to their new posts.12 Allowing the Un-
ion less than one business day to determine how the new
postings would affect those employees who were not
present at the meeting (and therefore could not immedi-
ately be consulted), and to offer counterproposals is not
reasonably adequate.
The dissent also observes that the Respondent notified
the Union of the closure only 1 day after the Respondent
itself learned of the decision from its owner, Fiat. On
this point, we note that the Respondent does not argue,
and the record does not show, that the timing of the clo-
sure—which began the same day the Respondent gave
notice to the Union—was controlled by Fiat or necessi-
tated by any economic exigency. See, e.g., Burk Enter-
prises, 313 NLRB 1263, 1268 (1994) (failure to give
union pre-implementation notice of change in terms of
employment may be excused where employer shows
emergency); Gannett Co., 333 NLRB 355, 359 (2001)
(same). To the contrary, employees LaForest,
Ciaramitaro, and Vargo all testified that, before the De-

before implementation of the decision. See, e.g., Penntech Papers, Inc.
v. NLRB, 706 F.2d 18, 26 (1st Cir. 1983) (“A concomitant element of
‘meaningful’ [effects] bargaining is timely notice to the union of the
decision to close, so that good faith bargaining does not become futile
or impossible”). The possibility that an employer might be able to
modify or “undo” some of the effects of the decision does not preclude
a finding of fait accompli. Indeed, in response to management’s ques-
tion whether employee (and WAEA President) Larry LaForest had any
issues he wanted to “discuss in terms of effects” at the lone meeting
between the parties after the December 1 announcement, LaForest
responded “no” because he viewed the shutdown and transfer as a
“done deal.” He credibly testified that the Respondent’s representatives
had already “made up their mind what they were doing.” That is the
definition of a fait accompli.
12 Although all 12 Wisne employees were assigned to either Royal
Oak or Novi immediately after the December 1 announcement, it ap-
pears that one Wisne employee was sent back to Wisne to load trucks
with equipment to be moved to Royal Oak, and that he remained at
Wisne until the move was completed on December 15. What happened
to that one employee does not affect our analysis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
cember 1 announcement, there was no indication that the
Wisne plant would shut down; in fact, the Wisne em-
ployees were working on a major project at the time and
were told by the Respondent that more work was coming
to the plant. Accordingly, we agree with the judge that
the Respondent violated Section 8(a)(5) and (1) by fail-
ing to give notice and an opportunity to bargain over the
effects of the Wisne shutdown.13
2. The 8(a)(5) violations regarding application of the
Novi and Royal Oak shop rules
a. Contract modification
We find that the record establishes that the terms of the
most recent WAEA agreement, including the shop rules,
are applicable to WAEA-represented employees when
working at the Respondent’s other facilities. There is no
dispute that the Respondent’s newly imposed Novi and
Royal Oak rules differed in significant respects from the
shop rules contained in the WAEA contract. Therefore,
by applying the Novi and Royal Oak rules to WAEA-
represented employees without WAEA’s consent, the
Respondent modified the terms of the WAEA agreement
within the meaning of Section 8(d), in violation of Sec-
tion 8(a)(5) and (1). NLRB v. Katz, 369 U.S. 736, 743
(1962). See also Oak Cliff-Golman Baking Co., 207
NLRB 1063, 1064 (1973), enfd. mem. 505 F.2d 1302
(5th Cir. 1974), cert. denied 423 U.S. 826 (1975). Sec-
tion 8(d) provides, in relevant part, that “where there is in
effect a collective-bargaining contract . . . no party to
such contract shall terminate or modify such contract.”
In finding that the contract applied to the WAEA-
represented employees when they worked at Respond-
ent’s other facilities, the judge credited the testimony of
WAEA President LaForest and unit employee Steve

13 We also reject the Respondent’s argument that it had no duty to
bargain over the effects of the closure of the Wisne facility under the
contract-coverage analysis endorsed by some U.S. Courts of Appeals.
See, e.g., NLRB v. Postal Service, 8 F.3d 832 (D.C. Cir. 1993); Chicago
Tribune Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992). In Provena St.
Joseph Medical Center, the Board reaffirmed its adherence to the clear
and unmistakable waiver standard and rejected the contract coverage
analysis. 350 NLRB 808, 810 (2007). However, even if we were to
apply a contract coverage analysis here, we would reach the same re-
sult. The Respondent contends that the matter is “covered” in art. 4.18
of the contract, which provides: “should the Company make a business
decision to close a plant or to consolidate plants, the Company will
bargain with the [WAEA] regarding the effects of the business deci-
sion.” The Respondent argues that this provision does not require
effects bargaining over temporary closures, such as the one at issue
here. However, the plain language of art. 4.18 requires that the parties
engage in effects bargaining over “a business decision to close a plant”
and does not differentiate between a temporary and permanent closure.
Even under a contract coverage analysis, therefore, the Respondent was
not relieved of its duty to bargain with WAEA over the effects of its
decision to shut down the Wisne facility.
Brooks that they used personal days and vacation days in
accordance with the WAEA collective-bargaining
agreement while working temporarily at Royal Oak in
January through May 2010 and February through March
2011. Further, after a 2-1/2 month leave of absence,
Brooks returned to work and reported to Novi on January
3, 2012, but was not administered a drug test upon his
return. The NIEA agreement (which covered the Novi
employees) in effect at that time required drug testing
after periods of leave longer than 30 days; the WAEA
agreement has never included a drug testing policy. Fi-
nally, the judge credited the testimony of WAEA Treas-
urer Paul Ciaramitaro and WAEA Secretary Jack Vargo
that, while working at the Respondent’s other facilities
prior to January 2012, they were never told that the
WAEA shop rules did not apply to them.
The Respondent and the dissent concede that the Novi
and Royal Oak rules implemented in January 2012 differ
significantly from the WAEA shop rules. The Respond-
ent argues, however, that it had a “sound arguable basis”
for interpreting the WAEA agreement to apply only
when covered employees were working at Wisne. The
dissent makes a similar argument: that there can be no
8(a)(5) contract modification violation because the
recognition clause provides that the agreement applies
only when the Wisne employees are working at Wisne.14
We disagree with both of these arguments.
The Respondent and the dissent essentially argue that
nothing in the WAEA agreement expressly states that its
terms and conditions will continue to apply to unit em-
ployees when working away from the Wisne facility, and
they point out that the recognition clause in that agree-
ment defines unit employees as those who are “employed
by [the Respondent] at its facility located at 42445 West
10 Mile Road,” otherwise known as the Wisne facility.15
Uncontested extrinsic evidence, however, undercuts reli-
ance on the recognition clause to limit the contract’s
scope. When Wisne employees were working at other

14 The “sound arguable basis” doctrine is set forth in Bath Iron
Works, 345 NLRB 499, 502 (2005), affd. 475 F.3d 14 (1st Cir. 2007).
While Chairman Pearce and Member Hirozawa question whether that
case was correctly decided, they find it unnecessary to address the issue
in light of the finding that the Respondent violated the Act for the rea-
sons stated above.
15 The General Counsel alleged in the complaint that the bargaining
unit described in the most recent WAEA collective-bargaining agree-
ment should be modified to include all employees “employed by [the
Respondent] at and out of its facility located at 42445 West 10 Mile
Road.” (Emphasis added.) The judge declined to do so, and the Gen-
eral Counsel excepted. We agree that, under the present circumstances,
it is not appropriate to change the historical, voluntarily agreed-to unit
description contained in the collective-bargaining agreement. The
parties will have the opportunity to discuss changing the unit descrip-
tion during any bargaining that occurs in compliance with this decision.
COMAU, INC. 5
facilities—including at Royal Oak and Novi during the
times at issue here—it is undisputed that they continued
to receive the wages and benefits set forth in the WAEA
contract, continued to pay dues to WAEA under the
agreement’s union-security clause, and continued to use
the agreement’s grievance procedure.16
Further, as explained above, the record shows that be-
fore January 2012, the WAEA shop rules, including time
and attendance policies, were applied to unit employees
working away from the Wisne facility. Significantly, the
Respondent provides no evidence to the contrary; rather,
its primary argument is that there could be no such past
practice because the shop rules in the prior NIEA and
WAEA agreements were “identical.” Accordingly, the
Respondent claims, it is not possible to determine which
shop rules—WAEA or NIEA—were being applied to the
Wisne employees working at Novi prior to January 2012.
And in any event, the Respondent argues, it was unaware
of any such “practice” and therefore not bound by it.
The record belies both of the Respondent’s claims. First,
the shop rules contained in the prior WAEA contract
differed from those in the prior NIEA contract in at least
two material respects: they did not include a drug testing
policy and they allowed for sick leave to be taken in less
than 1-day increments. Second, the Respondent’s claim
that it did not know of this practice is contradicted by the
fact that both LaForest and Brooks used personal and
vacation days in accordance with the shop rules con-
tained in the WAEA agreement while temporarily work-
ing at Royal Oak in 2010 and 2011.
Finally, the Respondent failed to point to any evidence
to support its claim that the WAEA contract only applied
to Wisne employees while they worked at Wisne. As
earlier noted, the WAEA shop rules are contained in and
are a part of the WAEA contract. Similarly, there is no
evidence to support the Respondent’s alternative conten-
tion that only certain contractual benefits such as wages
and health insurance, which it characterized as “earned
benefits,” would continue to apply to Wisne employees
working away from Wisne. To the contrary, as ex-
plained above, the record reflects that the WAEA shop
rules were applied away from the Wisne location until
the complained-of contract modification.

16 In determining whether a change constitutes an unlawful mid-term
modification for purposes of Sec. 8(a)(5) and 8(d), the Board may
examine the past practice of the parties as to the interpretation and
implementation of the contractual language in question, in order to
determine the parties’ intent. See, e.g., American Electric Power, 362
NLRB No. 92, slip op. at 3 (2015) (finding that employer had a sound
arguable basis for its interpretation of contract “in light of the parties’
past practice under th[e] contractual language” in question).
Accordingly, we reject the Respondent’s sound argua-
ble basis claim, and we agree with the judge that the Re-
spondent’s application of the Novi and Royal Oak shop
rules to WAEA-represented employees unlawfully modi-
fied the WAEA contract.
b. Unilateral changes
The judge also found that, by applying the Novi and
Royal Oak shop rules to WAEA-represented employees
without giving the WAEA notice and an opportunity to
bargain, the Respondent unilaterally changed employees’
terms and conditions of employment in violation of Sec-
tion 8(a)(5) and (1).17 We agree. See NLRB v. Katz,
supra 369 U.S. at 743; Naperville Jeep/Dodge, 357
NLRB at 2271–2272 (employer’s closure and transfer of
unit employees to nonunionized facility and unilateral
application of new terms and conditions to unit employ-
ees, resulting in significant loss of wages and benefits,
violated Section 8(a)(5) and (1) under both unilateral
change and contract modification theories). There is no
dispute that the Novi and Royal Oak shop rules pertain to
mandatory subjects, such as discipline, assignment of
overtime, absenteeism and tardiness, drug testing, and
layoffs. Here, the new shop rules changed existing terms
and conditions of employment in two respects.
First, the rules conflicted with express written provi-
sions in the WAEA contract. Further, as explained
above, the record shows a historical practice of WAEA-
represented employees carrying the express terms of their
agreement with them while temporarily working at the
Respondent’s other facilities. Significantly, the Re-
spondent did not produce any evidence to the contrary,
and it failed to call any witnesses with actual knowledge
of the day-to-day practices on any of the shop floors.
Indeed, the Respondent’s sole witness, its general coun-
sel, testified only generally about those practices and
admitted to lacking knowledge of how particular shop
rules affected employees.
Second, the new rules resulted in a change to an un-
written practice of applying the WAEA shop’s seniority
in assigning overtime and conducting layoffs of WAEA-

17 The complaint alleges, and we have found, that the Respondent
failed to continue in effect all the terms and conditions of the WAEA
collective-bargaining agreement by distributing new work rules to the
Wisne employees working at its Novi and Royal Oak facilities in viola-
tion of Sec. 8(a)(5) and (1) and Sec. 8(d). Thus, the complaint allega-
tion appears to be based on a contract modification theory. The allega-
tion, however, was fully litigated under both that theory and a unilateral
change theory. And, as previously discussed, the Respondent raised
and argued defenses to a unilateral change violation but notably did not
argue that the judge erred in applying the unilateral change analysis.
Accordingly, we find that the unilateral change theory is properly be-
fore the Board. Pergament United Sales, 296 NLRB 333 (1989), enfd.
920 F.2d 130 (2d Cir. 1990).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
represented employees who were working at other loca-
tions.18 For example, during the 2009–2011 Wisne shut-
down, the Respondent, WAEA, and NIEA entered into a
written agreement providing that the two unions would
coexist at Novi and each unit would maintain its own
seniority list for purposes of assigning overtime and con-
ducting layoffs.19 Moreover, according to WAEA Treas-
urer Ciaramitaro’s uncontradicted testimony, during his
assignment to Novi from May through June 2010,
WAEA-represented employees were routinely offered
overtime before contractors.20
The judge found, and we agree, that WAEA did not
clearly and unmistakably waive its right to bargain over
these changes and that the Respondent, in any event,
presented WAEA with a fait accompli. The Respondent
again argues that, under a contract coverage analysis, the
changes were permissible under the contract’s manage-
ment-rights clause. As explained above, the Board has
not adopted the contract-coverage test. Even under that
analysis, however, the Respondent’s argument would
fail. The contract’s management-rights clause allows the
Respondent to “make and enforce reasonable rules for
the maintenance of discipline and protection of life and
property” so long as the rules are not in conflict with the
WAEA agreement. Accordingly, the clause did not priv-
ilege the Respondent to cease applying the specific lan-
guage in the first paragraph of the WAEA Shop Rules,
25.01, which provides that “any additional [shop] rules

18 The judge referred to these latter practices as “extracontractual”
practices. According to these practices, which the judge discusses in
detail, the Respondent would first lay off contractors, then employees
temporarily working at the plant, and finally the home plant employees,
reversing that order in assigning overtime. The record shows that
layoffs were administered by classification and seniority within each
classification, and in sequential order based on the equipment-building
process. Under these extracontractual practices, if there were tempo-
rary transferees from two organized facilities working at a third plant,
the Respondent laid off the two groups of transferees in a proportional
manner before ever laying off any of the home plant employees. The
WAEA maintains its own seniority list by classification, which the
Respondent updates monthly.
19 The judge found that all of the provisions in the WAEA collective-
bargaining agreement continued to apply to Wisne employees working
at Novi during this period.
20 The Respondent points out that in 2008, when WAEA-represented
employees and the Comau Employees Association (CEA), which repre-
sented some of the Respondent’s other employees, were both working
at Novi, the Respondent laid off WAEA-represented employees while
retaining the CEA-represented employees. WAEA asserted that the
layoffs were not being conducted in an equitable and proportional
manner between the two unions, as was the practice. The Respondent
assured WAEA that the matter would be rectified, but did not follow
through. The record is unclear as to how the matter was ultimately
resolved. In any event, and particularly in light of WAEA’s protest,
this one instance is insufficient to defeat a finding of a past practice
regarding the use of reverse seniority in conducting layoffs outside the
home plant.
may be added or the present rules changed by mutual
agreement.” See Gozlon-Peretz v. U.S., 498 U.S. 395,
407 (1991) (specific contractual provision trumps general
one). Article 25.01 demonstrates that the parties bar-
gained precisely to prohibit the Respondent from unilat-
erally altering the shop rules applicable to WAEA-
represented employees.
We therefore agree with the judge that the Respondent
violated Section 8(a)(5) and (1) by unilaterally applying
the Novi and Royal Oak shop rules to WAEA-
represented employees temporarily working at those fa-
cilities.
AMENDED REMEDY
In addition to the remedies recommended by the judge,
we shall order the Respondent to take the following af-
firmative action designed to effectuate the policies of the
Act.
In accordance with our finding that the Respondent
failed to engage in effects bargaining in violation of Sec-
tion 8(a)(5) and (1), and as requested by the General
Counsel, we shall require that the Respondent post the
notice at all of the Respondent’s five facilities and also to
mail the posting to WAEA-represented employees on
field details. Because the record shows that WAEA-
represented employees are routinely transferred to work
temporarily at all of the Respondent’s Detroit area facili-
ties and perform field service work at customer sites,
such a remedy will serve to inform all affected employ-
ees of the action the Respondent is required to take to
remedy the violations. See, e.g., Technology Service
Solutions, 334 NLRB 116, 118 (2001) (notice ordered to
be posted at all facilities and mailed to home addresses of
traveling unit employees).
Further, in affirming the 8(a)(5) and (1) contract modi-
fication violation, we shall require the Respondent to
cease and desist from failing to continue in effect the
terms and conditions of its August 22, 2011 to May 3,
2015 collective-bargaining agreement with WAEA by
applying the Novi and Royal Oak shop rules to Wisne
employees temporarily working at those facilities with-
out WAEA’s consent; to affirmatively rescind the unilat-
eral application of the Novi and Royal Oak shop rules to
Wisne employees and restore the status quo ante as it
existed prior to January 23, 2012; and to continue in ef-
fect all of the terms and conditions of employment con-
tained in its most recent agreement.
In addition, we shall order the Respondent to compen-
sate employees for the adverse tax consequences, if any,
of receiving lump-sum backpay awards, and to file a re-
port with the Regional Director allocating the backpay
awards to the appropriate calendar years for each em-
COMAU, INC. 7
ployee. See AdvoServ of New Jersey, 363 NLRB No.
143 (2016).
ORDER
The National Labor Relations Board orders that the
Respondent, Comau, Inc., Detroit, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Wisne Automation Employees Association (the Un-
ion) as the exclusive collective-bargaining agent of em-
ployees in the appropriate unit below, by failing and re-
fusing to bargain over the effects of the idling of the
Wisne facility and the transfer of unit employees from
the Wisne facility to the Novi and Royal Oak facilities.
The unit is:
All full-time and regular part-time production and
maintenance employees, including inspectors, em-
ployed by the Employer at its facilities located at 42445
West 10 Mile Road, Novi, Michigan, but excluding all
office clerical employees, guards and supervisors as de-
fined by the Act.
(b) Failing to continue in effect all the terms and con-
ditions of employment contained in the parties’ August
22, 2011 to May 3, 2015 collective-bargaining agreement
covering the unit employees without the Union’s con-
sent.
(c) Unilaterally changing terms and conditions of em-
ployment of unit employees.
(d) Informing unit employees that the Union no longer
exists at the Novi facility.
(e) Interrogating employees about their union and pro-
tected concerted activities.
(f) Directing employees not to discuss issues involving
union and protected concerted activity with other em-
ployees.
(g) Threatening employees with layoffs and transfers if
they do not acquiesce in unilaterally imposed work rules.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Apply and restore the terms and conditions of em-
ployment that were applicable to the unit employees un-
der the August 22, 2011 to May 3, 2015 collective-
bargaining agreement covering the unit employees, and
continue in effect all of the terms and conditions of em-
ployment contained in the collective-bargaining agree-
ment, or other applicable collective-bargaining agree-
ment, with the Union.
(b) Refrain from implementing any changes in terms
and conditions of employment that are not covered by a
current collective-bargaining agreement without first
notifying and, on request, bargaining with the Union as
the exclusive collective-bargaining representative of em-
ployees in the above-stated bargaining unit.
(c) On request by the Union, rescind the unlawful uni-
lateral changes to the terms and conditions of unit em-
ployees.
(d) Make the unit employees whole for any loss of
wages and other benefits they suffered as a result of the
Respondent’s failure to abide by the terms of the August
22, 2011 to May 3, 2015 collective-bargaining agreement
and its unilateral changes, in the manner set forth in the
remedy section of the judge’s decision.
(e) Compensate affected employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 7,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(f) Rescind any discipline imposed pursuant to the
Novi and Royal Oak rules upon WAEA-represented em-
ployees who were temporarily assigned to the Novi and
Royal Oak facilities.
(g) Within 14 days from the date of this Order, remove
from its files any references to unlawful discipline im-
posed pursuant to the Novi and Royal Oak rules upon
WAEA-represented employees, and within 3 days there-
after notify the employees in writing that this has been
done and that the discipline will not be used against them
in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its Wisne Automation, Novi Industries, Royal Oak,
Southfield, and Warren facilities copies of the attached
notice marked “Appendix,”21 and duplicate and mail, at
its own expense, a copy of the notice to all unit employ-

21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ees on field detail in the Detroit, Michigan area. Copies
of the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 23, 2012.
(j) Within 21 days after service by the Region, file
with the Regional Director of Region 7 a sworn certifica-
tion of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. July 14, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
I agree with my colleagues regarding many aspects of
this case, but I dissent from their finding that the Re-
spondent violated Section 8(a)(5) based on an alleged
failure to satisfy effects-bargaining obligations regarding
the temporary shutdown of the Wisne facility and tempo-
rary transfer of represented employees to the Novi and
Royal Oak locations. Regarding two other issues, I disa-
gree with the types of violations found by my colleagues
and the judge.1 I agree that Respondent’s unilateral ap-

1 For the reasons stated by my colleagues, I agree that the complaint
is properly before the Board for disposition.
plication of Novi and Royal Oak shop rules to transferred
Wisne employees constituted an unlawful unilateral
change in violation of Section 8(a)(5), but I dissent from
any finding that this constituted an unlawful “mid-term
modification” of the Wisne collective-bargaining agree-
ment. And I agree that Respondent violated Section
8(a)(1) by making various statements and threats, but I
dissent from any finding that the Respondent coercively
interrogated employee Jack Vargo.2
A. The Effects-Bargaining Allegation
The Respondent, which is wholly owned by Fiat, de-
signs, builds, and installs automated assembly lines and
robotic equipment. At the time of the events at issue
here, it operated five facilities in the Detroit metropolitan
area: two in Novi—Wisne Automation (“Wisne”) and
Novi Industries (“Novi”)—and one each in Royal Oak,
Southfield, and Warren, Michigan. The WAEA repre-
sents approximately 44 unit employees at the Wisne fa-
cility, and the current collective-bargaining agreement
between the Respondent and WAEA is effective from
August 22, 2011, to May 3, 2015.
The events relevant to the effects-bargaining allegation
unfolded late in 2011.3 On November 30 in the evening,
Fiat informed the Respondent of its decision to temporar-
ily close the Wisne facility and relocate Wisne employ-
ees and their work to the Novi and Royal Oak facilities.4
The next day, December 1, the Respondent notified the
Union of this decision. In its December 1 email, Re-
spondent’s director of manufacturing, Marco Andriano,

2 I agree that the Respondent violated Sec. 8(a)(1) of the Act by
threatening employees with layoffs and transfers, by stating that the
Wisne Automation Employees Association (“WAEA” or “Union”) no
longer existed, and by directing employee Jack Vargo not to discuss
union matters with other employees. I disagree, however, that Re-
spondent coercively interrogated Vargo when Novi Plant Manager Tom
Durocher stopped Vargo on the shop floor and said that Vargo’s name
had come up as someone who was influencing Novi employees regard-
ing their vote on ratifying the tentative Novi collective-bargaining
agreement. Vargo replied that it was not true, and Durocher followed
up with a statement that my colleagues and I agree was unlawful (tell-
ing Vargo not to interfere with that vote). I acknowledge that a state-
ment may constitute an unlawful interrogation if it “reasonably call[s]
for an employee to respond and reveal whether he or she has engaged
in protected activity.” Food Services of America , 360 NLRB No. 123,
slip op. at 5 fn. 10 (2014). Here, however, I do not believe that was the
case. Durocher merely stated what he already knew—that Vargo was
trying to influence Novi employees’ ratification votes—as an introduc-
tion to ordering Vargo to stop doing it. The order was unlawful, but I
would not find that this converts the preceding statement into an inter-
rogation. Contrary to my colleagues’ apparent suggestion, the fact that
Vargo responded to Durocher’s remark is irrelevant. As described
above, the analysis turns on whether the remark reasonably called for a
response. The statement at issue here did not.
3 All dates are in 2011 unless otherwise stated.
4 There is no allegation that the Respondent was obligated to bar-
gain over this decision.
COMAU, INC. 9
informed WAEA President Larry LaForest that (i) “[d]ue
to business issues” and delay on a Chrysler project, the
Respondent would be forced to temporarily shut down
the Wisne facility; (ii) work performed at the Wisne fa-
cility would be moved to Novi and Royal Oak; and (iii)
Tom Durocher, plant manager at Novi, would decide
where the Wisne employees would be assigned. At this
time, there were 12 WAEA-represented employees work-
ing at Wisne.5 Also on December 1, Respondent began
moving equipment out of Wisne.
On December 1, WAEA President LaForest asked the
Respondent’s human resources director, Lisa Cormier,
for a meeting to discuss the matter. On December 3,
plant manager Durocher and Novi Supervisor Mark
Corich met with LaForest and WAEA officers Paul
Ciaramitaro, Jack Vargo, and Gordie Gault. LaForest
asked Durocher and Corich how the decision came
about. Durocher replied that “the Italians” made the de-
cision on the evening of November 30. LaForest asked
why the decision had been made. Durocher answered
that “it’s just the way it was.” Durocher then said that
Ciaramitaro was going to Royal Oak and LaForest to
Novi. LaForest replied that he lived closer to Royal Oak
and Ciaramitaro lived closer to Novi, and Durocher im-
mediately switched their assignments. No WAEA offi-
cial raised any other matter or requested discussions or
bargaining regarding any other issue concerning the tem-
porary closure or its effects.
On December 5, Wisne employees began to report to
their respective new facilities (10 employees were tem-
porarily transferred to Novi and 2 to Royal Oak). On
December 15, the last of the 12 unit employees left the
Wisne facility.6 WAEA continued to represent the
Wisne unit employees after they were transferred to Novi
and Royal Oak.
The above facts are uncontroverted. Therefore, I disa-
gree with my colleagues’ finding that the Respondent
failed to meet its effects-bargaining obligation after Fiat
decided to close Wisne temporarily and move Wisne
employees and their ongoing work to Novi and Royal
Oak. Specifically, I believe the record contradicts their
finding that the Respondent announced and implemented
these changes as a “fait accompli” that precluded effects
bargaining. In my view, two considerations warrant a
finding that Respondent did not present the Union with a
fait accompli.

5 The remainder of the approximately 44 WAEA-represented em-
ployees were working at other facilities or were on field service as-
signments or medical leave.
6 On June 5, 2012, the Respondent reopened the Wisne facility, and
all WAEA-represented employees who were working at other facilities
returned to Wisne.
First, and most importantly, the judge’s factual find-
ings reveal that the Respondent and the Union actually
engaged in effects bargaining regarding the Wisne facili-
ty’s temporary shutdown and the resulting temporary
transfer of Wisne employees to the Novi and Royal Oak
facilities. As noted above, Fiat communicated its deci-
sion to the Respondent on the evening of November 30.
The very next day, December 1, Respondent notified the
Union of the decision. The Union asked for a meeting,
and the parties met on December 3. The Union’s repre-
sentatives asked the Respondent three questions: how
the decision came about, why the decision had been
made, and whether WAEA officers LaForest and
Ciaramitaro could be assigned to facilities closer to their
homes. The Respondent answered the first two questions
and agreed to make the requested assignments. Thus, the
Respondent promptly notified the Union of the decision,
agreed to meet with the Union, answered every question
the Union asked, and accommodated the Union’s one
and only “effects” request. WAEA did not raise any
other issues at the December 3 meeting or otherwise re-
quest further bargaining, and there is no evidence that
Respondent refused to engage in further discussion or
bargaining. Moreover, the Union’s failure to seek further
effects bargaining cannot be excused on the basis that it
had lost bargaining leverage: at all times, the Union con-
tinued to represent employees upon whom the Respond-
ent relied for services. See Komatsu America Corp., 342
NLRB 649, 649 (2004).
Second, my colleagues’ reliance on the Board’s “fait
accompli” doctrine in this effects-bargaining case is mis-
placed. The phrase fait accompli refers to “something
that has been done and cannot be changed.”7 In Board
cases, what constitutes an unlawful fait accompli varies
depending on whether a particular situation involves
mandatory decision bargaining or mandatory effects bar-
gaining.8 When decision bargaining is required—which
is not alleged here—the employer must provide the op-
portunity for bargaining over potential alternatives to a
tentative decision. In such a context, it is an unlawful

7 Merriam-Webster Dictionary, definition of “fait accompli”
(http://www.merriam-webster.com/dictionary/fait%20accompli) (last
visited Sept. 30, 2014).
8 The Board and the courts have long distinguished between man-
agement actions that are mandatory subjects of decision bargaining
(e.g., changes in wages, hours and other terms and conditions of em-
ployment) and actions where decision bargaining is not required but
where the employer must provide the opportunity for effects bargaining
(e.g., negotiations regarding how the decision will affect bargaining
unit employees). See, e.g., First National Maintenance Corp. v. NLRB,
452 U.S. 666, 681 (1981) (holding that, although a partial plant closing
decision is not a mandatory subject of decision bargaining, “bargaining
over the effects of a decision must be conducted in a meaningful man-
ner and at a meaningful time”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
fait accompli if the employer unilaterally formulates and
announces a final decision (thus foreclosing negotiation
over potential alternatives). When a case involves effects
bargaining, it is lawful for the employer to unilaterally
formulate and announce a final decision. However, the
employer must provide the opportunity for bargaining
over the decision’s effects—i.e., how its implementation
will affect represented employees—and an unlawful fait
accompli can occur only if the employer fails to provide
reasonable notice and the opportunity for bargaining be-
fore implementation. See, e.g., Komatsu America, supra
(“Effects bargaining also must occur sufficiently before
actual implementation of the decision so that the union is
not presented with a fait accompli”) (citations omitted);
Los Angeles Soap Co., 300 NLRB 289, 289 (1990) (“Ab-
sent special or emergency circumstances, . . . the Board
has held that pre-implementation notice is required to
satisfy the obligation to bargain over the effects of a de-
cision to close.”) (internal quotations and alterations
omitted).
Here, the Respondent learned on November 30, in the
evening, that its owner had made the decision to tempo-
rarily shut down the Wisne facility and transfer all Wisne
work to the Novi and Royal Oak facilities. The very
next day, the Respondent gave notice to the Union. At
that point, there was no fait accompli for effects-
bargaining purposes because the effects were not “some-
thing that has been done and cannot be changed.”9 In-
deed, after the Union requested a meeting, representa-
tives of the Respondent and Union participated in a
meeting 2 days later, on December 3, at which the Re-
spondent changed two transfer assignments at the Un-
ion’s request. There is no evidence that the Union raised
any other issues or requested bargaining regarding other
effects, or that the Respondent suggested that it would be
futile for the Union to do so.10 Employee transfers did

9 Merriam-Webster Dictionary, supra fn. 21.
10 My colleagues quarrel with the dictionary definition of “fait ac-
compli,” but we do not disagree regarding the applicable standard. As
my colleagues state, “notice and an opportunity to bargain” concerning
the effects of a decision “must be given before implementation of the
decision.” As explained in the text, I believe the Respondent met its
obligations under this standard. Even though the Respondent had pro-
visionally decided who would transfer to Novi and who to Royal Oak,
those decisions remained fluid, as the Respondent’s prompt accommo-
dation of LaForest’s and Ciaramitaro’s transfer requests demonstrates.
And the Union could have but did not raise additional effects at the
December 3 meeting. My colleagues appear to argue that the Union
was excused from raising additional issues at that meeting because
LaForest testified that the Respondent’s representatives had already
“made up their mind” about the shutdown and transfer decisions. But
the shutdown decision is not at issue. That decision was not subject to
bargaining. At issue here are the effects of that decision. Transfers
were one such effect. As just stated, however, transfer destinations
remained fluid and were, in fact, bargained and changed. And there is
not commence until December 5, and the last employee
left the Wisne facility on December 15.
In support of their 8(a)(5) violation finding, my col-
leagues advance arguments that may be relevant to deci-
sion bargaining but are irrelevant to effects bargaining.
They say that the Respondent “presented the shutdown
and transfer as final,” but this is entirely permissible in a
case that only involved mandatory effects bargaining.
Again, the decision was to temporarily shut down Wisne
and transfer its employees to Novi and Royal Oak, and
there is no allegation that Respondent had a duty to bar-
gain over this decision. Thus, Respondent could lawfully
announce a final decision as long as it provided reasona-
ble notice and the opportunity for effects bargaining be-
fore the decision directly affected unit employees. As
explained above, the Respondent did so.
Nor is this analysis affected by the fact that the Re-
spondent commenced moving equipment from the Wisne
facility on December 1. Moving equipment was an in-
separable part of the decision, which (again) was to tem-
porarily shut down the Wisne facility and transfer the
work to Novi and Royal Oak. Moving the work neces-
sarily meant moving the equipment used to perform the
work. However, neither Board law nor the record sup-
ports a finding that taking these types of actions, when
they follow directly from the decision, precludes mean-
ingful effects bargaining. Indeed, not only did the Re-
spondent give the Union almost the same amount of no-
tice as it had received, the record shows that meaningful
effects bargaining occurred while everyone remained
employed and before any employee transfers com-
menced. See Chippewa Motor Freight, 261 NLRB 455,
460 (1982) (no effects-bargaining violation, even though
employer gave notice to the union only two days before
shutdown occurred, where the employer “was not re-
quired to bargain about the decision to close” and “the
record [did] not show that the decision to close was made
substantially in advance of the notice” to the union);
Kingwood Mining Co., 210 NLRB 844, 845 (1974) (no
effects-bargaining violation, even though shutdown deci-
sion was announced as a fait accompli, where “Respond-
ent’s conduct . . . did not reflect a purpose to foreclose
bargaining negotiations regarding the consequences of
the shutdown,” and “[n]or did the Union ever test Re-

no evidence the Respondent indicated that it would have been futile for
the Union to propose bargaining regarding additional effects of the
shutdown decision. In short, the Union had the opportunity to raise
other matters, and its failure to do so does not make the Respondent’s
conduct unlawful. See, e.g., Berklee College of Music, 362 NLRB No.
178, slip op. at 2 (2015) (“Once the employer has furnished a meaning-
ful opportunity to bargain, it is incumbent on the union to pursue its
bargaining rights.”).
COMAU, INC. 11
spondent’s willingness to satisfy its bargaining obligation
in this respect”), affd. sub nom. UMW v. NLRB, 515 F.2d
1018 (D.C. Cir. 1975); NLRB v. Oklahoma Fixture Co.,
79 F.3d 1030, 1035–1036 (10th Cir. 1996) (court finds
no effects-bargaining violation where employer an-
nounced subcontracting decision one day after notifying
union, where employees remained on the payroll).
For similar reasons, I believe the record does not sup-
port my colleagues’ finding that Respondent irrevocably
determined, before meeting with the Union, “where each
of the 12 unit employees who remained at Wisne would
be transferred.” Again, the decision was that each unit
employee would be transferred either to Novi or to Royal
Oak. All that was left to bargain in that regard was who
went where—and the Respondent changed LaForest’s
and Ciaramitaro’s assignments at the Union’s request.
Thus, the Respondent demonstrated that employee as-
signments were open for discussion.11 There is no evi-
dence that the Respondent in any way indicated to the
Union that it would not entertain further assignment re-
quests or any other proposal concerning the effects of the
shutdown and transfer decision, nor did the Union re-
quest further bargaining over other potential effects.
Kingwood Mining Co., supra.12
In short, this is an effects-bargaining success story.
The Respondent gave the Union almost as much notice
as it had been provided regarding Fiat’s temporary shut-
down/transfer decision. The parties engaged in effects
bargaining 2 days later. An additional two days passed

11 Indeed, the speed with which the Respondent agreed to the request
to reassign LaForest and Ciaramitaro suggests that Respondent was
more than open to discussion and may have been willing to accede to
further reasonable proposals—based, perhaps, on an awareness that the
timing of Fiat’s decision meant that effects bargaining would have to
proceed with some alacrity. However, the Union chose not to test
Respondent’s willingness. Naperville Jeep/Dodge, 357 NLRB 2252
(2012), which my colleagues rely on, is materially distinguishable from
the instant case. In Naperville Jeep/Dodge, the employer “gave no
indication that it was willing to bargain in good faith” concerning the
effects of its decision. Id. at 2272. Here, by contrast, the Respondent
agreed to meet with the Union and agreed to make the one and only
change the Union proposed, thus demonstrating its willingness to en-
gage in good-faith effects bargaining.
12 My colleagues contend that the Respondent’s failure to argue that
the timing of the shutdown’s implementation was “controlled by Fiat or
necessitated by any economic exigency” supports a finding that the
Respondent did not give the Union sufficient notice and an opportunity
to engage in effects bargaining. I disagree. As I have explained, the
Respondent gave the Union almost the same amount of notice it had
received. Further, meaningful effects bargaining occurred while every-
one remained employed and before any transfers commenced. In these
circumstances, the Respondent was not required to establish that its
action was necessitated by an emergency. Rather, its conduct was
consistent with that of employers in cases cited above, which establish
that meaningful effects bargaining can occur in a short timeframe. See
Chippewa Motor Freight, supra; NLRB v. Oklahoma Fixture, supra.
before any employee transfers commenced. The Re-
spondent changed its planned implementation in re-
sponse to a Union request, and the Union raised no other
issues regarding effects. In my view, these facts do not
reasonably permit a finding that the Respondent failed to
satisfy its obligation to engage in effects bargaining.13
B. The Unilateral Application of Novi/Royal Oak Shop
Rules to Wisne Employees
On January 23 and February 3, 2012, the Respondent
implemented new shop rules at Novi and Royal Oak,
respectively. These rules were more restrictive than the
Wisne shop rules with respect to overtime, vacation poli-
cy, sick and personal days, and discipline, and the trans-
ferred Wisne employees lost their seniority rights for the
duration of their transfer. Without giving the WAEA
notice and opportunity to bargain, the Respondent in-
formed employees that the Novi and Royal Oak shop
rules would be applied to all employees, including those
represented by WAEA.
I agree that these actions constituted unlawful unilat-
eral changes in violation of Section 8(a)(5). However, I
disagree with my colleagues’ finding that the changes
also constituted unlawful mid-term contract modifica-
tions to the WAEA collective-bargaining agreement.
For purposes of Section 8(a)(5), there is a fundamental
difference between an unlawful unilateral change on the
one hand, and an unlawful mid-term contract modifica-
tion on the other. When a particular change relates to a
mandatory subject of bargaining (for example, discipline
for different types of employee misconduct), the change
can lawfully be implemented during the term of a collec-
tive-bargaining agreement—even over the union’s objec-
tion—but only if the change is preceded by reasonable
advance notice and the opportunity for bargaining either
to impasse or agreement regarding the change. NLRB v.
Katz, 369 U.S. 736 (1962). However, if a change consti-
tutes a mid-term “modification” of a collective-
bargaining agreement, Section 8(d) indicates that such a
modification cannot lawfully be implemented, even if
there is advance notice and the opportunity for bargain-
ing, unless the other party consents to the change.14

13 Based on their finding of an effects-bargaining violation and evi-
dence that WAEA-represented employees routinely work at all five of
the Respondent’s Detroit-area facilities, my colleagues order the Re-
spondent to post the remedial notice at all five facilities and to mail the
notice to all WAEA-represented employees. Because I would dismiss
the effects-bargaining allegation, I do not join in ordering these reme-
dies.
14 Sec. 8(a)(5) and 8(b)(3) make it an unfair labor practice if em-
ployers or unions, respectively, fail or refuse to “bargain collectively.”
The phrase “bargain collectively” is defined in Sec. 8(d), which (among
other things) refers to the obligation of employers and unions to “meet
at reasonable times and confer in good faith with respect to wages,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
To prove a contract modification, the General Counsel
must show that “the employer has altered the terms of a
contract without the consent of the other party.” Bath
Iron Works Corp., 345 NLRB 499, 501 (2005), affd. sub
nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d
14 (1st Cir. 2007). It is well established that unilateral
changes do not constitute unlawful mid-term contract
modifications for purposes of Section 8(d) unless they
modify one or more express provisions “contained in”
the collective-bargaining agreement. Milwaukee Spring
Division, 268 NLRB 601 (1984) (“Milwaukee Spring
II”), affd. sub nom. Auto Workers v. NLRB, 765 F.2d 175
(D.C. Cir. 1985).
The General Counsel here did not establish that any
collective-bargaining agreement provisions contained in
the Wisne agreement were altered. Although the WAEA
collective-bargaining agreement contained its own shop
rules, that agreement expressly relates only to the Wisne
facility. In fact, the recognition clause in the WAEA
agreement is specific to the Wisne facility, which the
agreement identifies by its street address.15 And no col-
lective-bargaining agreement provision indicates what
rules apply to Wisne employees if or when they work at
another facility.16 Because the Wisne agreement, by its
terms, has no application at other facilities, and there is
no other evidence that the Respondent’s actions modified
terms “contained in” the Wisne agreement, I believe the
record does not reasonably support a finding that the
Respondent’s application of the Novi and Royal Oak
shop rules to WAEA employees while they worked at the
Novi and Royal Oak facilities constituted an unlawful
mid-term modification of the Wisne agreement.
Accordingly, as to the above issues, I respectfully dis-
sent.

hours, and other terms and conditions of employment,” but with a pro-
viso that no party to a collective-bargaining agreement “shall terminate
or modify such contract, unless the party desiring such termination or
modification” fulfills certain specified requirements.
15 The collective-bargaining agreement indicates that Respondent
recognizes the WAEA as the representative of Wisne employees in the
following unit: “All full-time and regular part-time production and
maintenance employees, including inspectors, employed by the Em-
ployer at its facilities located at 42445 West 10 Mile Road, Novi, Mich-
igan, but excluding all office clerical employees, guards and supervi-
sors as defined in the Act.”
16 The record suggests that Respondent in the past has applied the
Wisne collective-bargaining agreement at some times in the past when
employees have worked at other facilities. However, even if such a
practice existed, it was not expressed in any collective-bargaining
agreement provisions. Therefore, even though Respondent engaged in
an unlawful unilateral change regarding the rules to be applied to
Wisne employees working temporarily in other facilities, such a change
did not constitute an unlawful mid-term contract modification for pur-
poses of Sec. 8(a)(5) and 8(d).
Dated, Washington, D.C. July 14, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with the Wisne
Automation Employees Association (Union), as the ex-
clusive bargaining representative of our employees in the
appropriate unit below, by failing and refusing to bargain
over the effects of the idling of the Wisne facility and the
transfer of unit employees from the Wisne facility to the
Novi and Royal Oak facilities.
The unit is:
All full-time and regular part-time production and
maintenance employees, including inspectors, em-
ployed by the Employer at its facilities located at 42445
West 10 Mile Road, Novi, Michigan, but excluding all
office clerical employees, guards and supervisors as de-
fined by the Act.
WE WILL NOT fail to continue in effect any provisions
of the August 22, 2011 to May 3, 2015 collective-
bargaining agreement covering the unit employees with-
out the Union’s consent.
WE WILL NOT make unilateral changes without notice
to and bargaining with the Union regarding the terms and
conditions of employment of unit employees.
WE WILL NOT inform unit employees that the Union no
longer exists at the Novi facility.
WE WILL NOT interrogate employees about their union
and protected concerted activities.
COMAU, INC. 13
WE WILL NOT direct employees not to discuss issues
involving union and protected concerted activity with
other employees.
WE WILL NOT threaten employees with layoffs and
transfers if they do not acquiesce in unilaterally imposed
work rules.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
WE WILL apply and restore the terms and conditions of
employment that were applicable to the unit employees
under the August 22, 2011 to May 3, 2015 collective-
bargaining agreement covering the unit employees, and
continue in effect all of the terms and conditions of em-
ployment contained in the collective-bargaining agree-
ment, or other applicable collective-bargaining agree-
ment, with the Union.
WE WILL refrain from implementing any changes in
terms and conditions of employment that are not covered
by a current collective-bargaining agreement without
first notifying and, on request, bargaining with the Union
as the exclusive collective-bargaining representative of
the unit employees.
WE WILL rescind the unlawful unilateral changes that
we made to the terms and conditions of the unit employ-
ees.
WE WILL make the unit employees whole, with inter-
est, for any losses of wages and other benefits they suf-
fered as a result of our failure to abide by the terms of the
August 22, 2011 to May 3, 2015 collective-bargaining
agreement and our unlawful unilateral changes in the unit
employees’ terms and conditions of employment.
WE WILL compensate the affected employees for the
adverse tax consequences, if any, of receiving a lump
sum backpay award, and WE WILL file with the Regional
Director for Region 7, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar years for each employee.
WE WILL rescind any discipline imposed pursuant to
the Novi and Royal Oak rules upon unit employees who
were temporarily assigned to the Novi and Royal Oak
facilities.
WE WILL, within 14 days from the date of the Board’s
order, remove from our files any references to unlawful
discipline imposed pursuant to the Novi and Royal Oak
rules upon unit employees, and within 3 days thereafter
notify the employees in writing that this is been done and
that the discipline will not be used against them in any
way.
COMAU, INC.
The Board’s decision can be found at
www.nlrb.gov/case/07–CA–073073 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
Darlene Haas Awada and Patricia Fedewa, Esqs., for the Act-
ing General Counsel.
Theodore Opperwall, Thomas Kienbaum, and Ryan Bohan-
non,Esqs., for the Respondent.
Larry LaForest, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was
tried in Detroit, Michigan, on October 1, 2, and 3, 2012. The
Wisne Automation Employees Association (WAEA) filed the
charge on January 25, 2012, a first amended charge on March
5, 2012, and a second amended charge on April 16, 2012. The
General Counsel issued the complaint on April 27, 2012.
The complaint alleges that the Respondent, by Tom Du-
rocher, violated Section 8(a)(1) of the Act in early January
2012 by coercively interrogating employees about their discus-
sions of union matters with other employees and directing em-
ployees not to discuss union matters with other employees and
by, on or about January 18, 2012, threatening employees that if
they did not accept new work rules that vary from the provi-
sions in their collective-bargaining agreement, they could take
layoffs. The complaint also alleges that the Respondent, by
Mark Corich, violated Section 8(a)(1) about February 24, 2012,
by informing employees in the WAEA unit that their Union no
longer existed.
The complaint also alleges that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by engaging in unilateral changes
in the following respects on the following dates: on December
1, 2011, announcing to unit employees the idling of the Wisne
Automotive facility; on December 15, 2011,by idling that facil-
ity and transferring unit work and unit employees to other facil-
ities, including its Royal Oak facility and its Novi facility; and
on February 24, 2012, by Mark Corich, by informing employ-
ees that officials of the WAEA would no longer be able to con-
duct union business during worktime.
The complaint further alleges that the Respondent violated
Section 8(a)(5) and (1) and 8(d) of the Act by engaging in the
following conduct: about January 23, 2012, at its Novi facility,
failing to continue in effect all the terms and conditions of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
WAEA agreement by distributing new work rules to unit em-
ployees which altered certain provisions of the WAEA agree-
ment and about February 3, 2012, at its Royal Oak facility,
failing to continue in effect all the terms of the WAEA agree-
ment by distributing new work rules which altered certain pro-
visions of that agreement.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Southfield Michigan, and various facilities in the
metropolitan Detroit, Michigan area is engaged in the design,
nonretail sale, and installation of automated industrial systems.
During the calendar year ending December 31, 2011, the Re-
spondent performed services valued in excess of $50,000 in
States other than the State of Michigan. The Respondent ad-
mits, 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 organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
The Respondent, which is wholly owned by Fiat, designs,
builds and installs automated assembly lines and robotic
equipment, principally for the automotive industry. The Re-
spondent employs approximately 1100 individuals in the Unit-
ed States at various facilities. In the Detroit, Michigan, metro-
politan area the Respondent operates five production facilities:
Comau Automation, which is referred to by the parties as
Comau Automation or Wisne Automation (Wisne); Novi Indus-
tries; Southfield, Royal Oak, and Warren. The Respondent’s
permanent production employees are skilled employees who
work in classifications such as machine builder, electrician,
pipefitter, robot technician, and welder. The Respondent also
employs individuals on certain projects obtained from staffing
agencies. The parties refer to these individuals as “contractors.”
The WAEA represents approximately 44 unit employees
who generally work at the Wisne (Comau Automation) facility.
The Respondent and the WAEA have had collective-bargaining
history since 2000 when the Respondent acquired its operations
in the Detroit area (Tr. 270). The record contains the 2008 to
2011 collective-bargaining agreement between the parties (Jt.
Exh. 5) and their present collective-bargaining agreement,
which is effective from August 22, 2011, to May 3, 2015 (Jt.
Exh. 6).
The collective-bargaining agreement indicates that the Re-
spondent recognizes the WAEA as the exclusive bargaining
representative in the following unit:
All full-time and regular part-time production and mainte-
nance employees, including inspectors, employed by the Em-
ployer at its facilities located at 42445 West 10 Mile Road,
Novi, Michigan, but excluding all office clerical employees,
guards and supervisors as defined in the Act.1
The Respondent also operates two plants located at 44000
and 43900 Grand River, in Novi, Michigan, which are referred
to as Novi Industries (Novi or the Novi facility). The produc-
tion and maintenance employees at the Novi facility are repre-
sented by the Novi Industries Employees Association (NIEA).
There are approximately 200 employees in that bargaining unit.
At the Respondent’s facility in Southfield, Michigan, the pro-
duction and maintenance employees are represented by the
Comau Employees Association (CEA). There are approximate-
ly 170 employees in that bargaining unit.2 The Respondent also
operates facilities in Royal Oak and Warren, Michigan. At the
time of the hearing there were approximately 100 unrepresent-
ed “white-collar” employees and 15 unrepresented production
and maintenance employees working at the Royal Oak facility.
The Warren facility is normally used for relatively short-term
projects and the Respondent has not employed permanent em-
ployees at that facility. All of the individuals working at War-
ren at the time the hearing were contractors.
The three unions representing the Respondent’s employees
in the Detroit area are independent unions and are not affiliated
with each other. Each union has a separate collective-
bargaining agreement with the Respondent which it negotiates
individually. The employees represented by the WAEA have
their own seniority list. This list sets forth the seniority date of
each employee in the classification in which they work (i.e.,
machine builder, electrician, and pipefitter). This list is updated
by the Respondent each month.
During the time material to this case, Marco Andriano was
the Respondent’s director of manufacturing; David McKee
served as its general counsel; Lisa Cormier was the human
resources director; Tom Durocher was the Novi plant manager,
and Mark Corich was a supervisor at Novi.3 Larry LaForest
was the WAEA’s president; Paul Ciaramitaro was the treasurer;
and Jack Vargo was the secretary.
The Respondent’s represented employees at times work out-
side their “home plant” (Wisne, Novi, or Southfield) by being
temporarily assigned to another one of the Respondent’s facili-
ties or being assigned to “field service” work. Field service
work occurs when the Respondent’s production employees are
assigned to work at a customer’s facility, typically installing the
Respondent’s equipment at the facility or performing mainte-
nance work.
The current contract between the Respondent then the
WAEA provides for “Location Transfer” (Jt. Exh. 6, art. 4.04).
This article provides, in relevant part:

1 The complaint alleges that the appropriate unit is somewhat differ-
ent than the contractual unit description. In relevant part, the complaint
describes the geographic location of the employees in the unit as fol-
lows: “employed by Respondent at and out of its facility located at
42445 West 10 Mile Road, Novi Michigan.” The Respondent’s answer
denied the unit pled in the complaint is the appropriate unit.
2 The recent collective-bargaining history at that facility is discussed
extensively in Comau, Inc., 356 NLRB 75 (2010), enf. denied 671 F.3d
1232 (D.C. Cir. 2012), and Comau, Inc., 358 NLRB 593 (2012).
3 At the time of the hearing Durocher and Corich were no longer
employed by the Respondent.
COMAU, INC. 15
From time to time, when absolutely necessary, that Company
may require employees to work temporarily at other perma-
nent or temporary Comau Inc. facilities in Southeastern Mich-
igan. When such transfers are needed the Company will fol-
low the seniority roster with the lowest seniority employee re-
quested to go first. Except as set forth in Article 5: Field ser-
vice for new employees, if an employee refuses the transfer
and there are no other volunteers to replace him/her, he/he
will suffer no disciplinary action and will be placed on laid off
status.
The Application of the WAEA Contract outside of the Wisne
(Comau) Automation plant prior to January 2012
In 2009, the Respondent temporarily closed the Wisne plant
and did not reopen it until January 2011. On March 25, 2009,
the Respondent, the WAEA, and the NIEA executed a letter of
understanding which provided that the WAEA and the NIEA
would coexist in the Novi facility and that WAEA represented
employees would perform a specified list of projects. The
agreement specifically indicated that “During this period, both
the NIEA and the WAEA will maintain their current structure
with respect to its Union committee, team leaders and seniori-
ty.” Pursuant to this agreement, the WAEA represented em-
ployees worked on the enumerated projects in a specific bay
located at the Novi Industries facility. During this period all of
the provisions of the WAEA collective-bargaining agreement
applied to the employees the WAEA represented while they
were working at Novi.
Prior to January 2012, there are other instances of the
WAEA contract being applied to Wisne employees when they
were working outside of the Wisne facility. The record estab-
lishes, and the Respondent does not dispute, that the provisions
of the WAEA contract regarding wages, health insurance, life
and disability insurance, the 401(k) plan, classifications, and
paid holidays were applied to WAAE represented employees
regardless of where they worked.
The dispute between the parties involves essentially the ap-
plication of the attendance policies and shop rules contained in
the WAEA contract, and practices regarding overtime and
layoff, to WAEA represented employees working outside of the
Wisne Automation plant. In this connection, LaForest testified
that when he worked at the Royal Oak facility during the period
from January through May 2010, he was able to use his person-
al days and vacation days as set forth in the WAEA contract
(Tr. 149, GC Exh. 44). Ciaramitaro testified that while working
at the Novi facility in May and June 2010 the WAEA employ-
ees were assigned overtime prior to contractors. During this
period Ciaramitaro was never informed by anyone in manage-
ment that the shop rules in the WAEA contract did not apply to
him. Vargo testified that all the provisions of the WAEA con-
tract, including the shop rules in article 26, applied to him when
he worked at the Novi facility from October 2011 until January
2012, when new rules were applied at the Novi facility. (Tr. 79,
84–86.) Vargo also testified that when assigned to field service
work the WAEA contract governs his conditions of employ-
ment, but he acknowledged that he would also have to abide by
the customer's plant rules.
Current employee Steve Brooks testified that he has worked
for the Respondent and its predecessor as a pipefitter since
1984. During his entire period of employment his home plant
has been the Wisne facility and he has always been represented
by the WAEA. In September 2009 he was assigned to the Re-
spondent’s Royal Oak facility and worked there until January
2010. He was then assigned to field service at a customer’s
assembly plant and returned to work at the Royal Oak facility
in November 2010. While he was working at Royal Oak in
February and March 2011, he used personal days under the
WAEA contract. (GC Exh. 46.) Brooks further testified that he
went on medical leave on October 27, 2011, and when he re-
turned to work on January 13, 2012, he was assigned to the
Novi facility. When he reported to Novi, consistent with the
WAEA contract, he was not given a drug test. The terms of
NIEA contract applicable to the Novi facility, which had ex-
pired by its terms on April 3, 2011 (Jt. Exh. 1) contained a pro-
vision that employees were to undergo a drug screen after re-
turning from an absence of more than 30 days. (Jt. Exh. 1, art.
37.09.)
The record establishes that the Respondent applied certain
practices with respect to the assignment of overtime and selec-
tion of employees for layoff at its various plants in the Detroit
area prior to January 2012, when its employees were not work-
ing at their home plant.
When overtime was assigned, employees of the home plant
were given the opportunity first, then the Respondent’s em-
ployees who were represented by one of the other unions would
be assigned overtime. Finally, contractors would be given an
opportunity for overtime. (Tr. 120, 272, 394–395.)
Layoffs were conducted on the basis of classifications since
there is a sequential order in the manner in which the equip-
ment manufactured by the Respondent is built. Machine build-
ers start the process of building the equipment, pipefitters then
begin their work and finally electricians wire the equipment.
Because of the nature of the production process, when employ-
ees are laid off, they are laid off within a classification, by sen-
iority. Machine builders would be the first classification to be
laid off, followed by pipefitters and finally electricians. The
first individuals to be laid off within each classification would
be contractors. Then, employees of the Respondent, who were
not working at their home plant, would be laid off by classifica-
tion according to the seniority list of their home plant. The last
employees to be laid off would be the employees working at
their home plant. (Tr. 80, 125, 164–168.) In situations where,
in addition to employees of the home plant, employees repre-
sented by both of the Respondent’s other unions were working
at that plant, the general practice was to lay off employees rep-
resented by the two other unions proportionally in an equitable
fashion, before laying off the employees of the home plant.
(Tr. 154–156.)
LaForest testified that in 2008 at the Novi facility he and
other employees represented by the WAEA were working
along with employees of the Southfield facility represented by
the CEA and Novi employees represented by the NIEA. On this
occasion, the Respondent laid off the WAEA represented em-
ployees and retained the CEA represented employees. LaForest
raised the issue personally with the then human resources direc-
tor, Fred Begle and the director of manufacturing, Ron
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Kyslinger. LaForest indicated to both individuals that in this
situation the practice had been to lay off visiting employees
represented by the two other unions in an equitable, proportion-
ate manner. Begle told LaForest he would take care of the mat-
ter but later advised him that Kyslinger had overruled him. In
this instance, the WAEA represented employees were laid off
prior to the CEA represented employees. (Tr. 158–162.)4
The December 2011 Temporary Shutdown of the Wisne
(Comau) Automation Facility
On December 1, 2011, the Respondent’s director of manu-
facturing, Marco Andriano, sent an email to LaForest (GC Exh.
25) indicating, in relevant part, that “due to business issues"
and a delay on a Chrysler project the Respondent would be
forced to temporarily shut down the Comau (Wisne) Auto facil-
ity. The email further indicated that the ongoing work would be
moved to different facilities, specifically referring to Novi,
Autotech,5 and Royal Oak. The email concluded that all of the
Comau Auto personnel would be relocated pursuant to the di-
rection of Tom Durocher, the then Novi Industries plant man-
ager.
At the time of the notification of the temporary closing, there
were approximately 12 employees at the Wisne facility work-
ing on automated robotic equipment called aircraft gantries.
The remainder of the approximately 44 employees represented
by the WAEA were working at other Respondent facilities,
were on field service assignments or were on medical leave.
The email from Andriano was the first notification the
WAEA had received from the Respondent regarding the tempo-
rary closure of the Wisne facility. After receiving the email,
LaForest contacted Cormier and requested a meeting to discuss
the closure. Coemier agreed to schedule a meeting. On approx-
imately December 3, a meeting was held between the WAEA
and the Respondent. Present for the WAEA were LaForest,
Ciaramitaro, Vargo and recording secretary, Gordie Gault.
Present for the Respondent were Durocher and Corich. When
LaForest asked how the decision came about to temporary close
the Wisne facility, Durocher said that on the evening of No-
vember 30, “the Italians” made a decision to close the Wisne
facility and relocate the existing work to Novi Industries.6
When Laforest asked why that decision was made, the Du-
rocher responded “it's just the way it was.” (Tr. 187.) Durocher
indicated that Ciaramitaro was going to be assigned to Royal
Oak while LaForest would be assigned to Novi. When LaForest
pointed out that he lived closer to Royal Oak and that
Ciaramitaro lived closer to Novi, Durocher indicated they
would be assigned to the facilities closer to their home. There

4 Although LaForest protested the matter, the WAEA did not file a
grievance over this issue. However, as counsel for the Acting General
Counsel note in their brief, both the 2008–2011 contract and the current
contract between the Respondent and the WAEA contain a clause
which indicates that a waiver of rights “in one case does not establish a
precedent of waiving the same rights in the future.” (Jt. Exh. 5, sec.
6.04; Jt. Exh. 6, art. 10.)
5 The Autotech facility is located on the Novi campus and covered
by the Novi collective-bargaining agreement.
6 None of the individuals who participated in the decision to tempo-
rarily close the Wisne facility testified at the hearing.
were no other discussions regarding the effects of the closure at
this meeting.
The Respondent assigned 10 of the employees to Novi In-
dustries while two pipefitters were assigned to the Royal Oak
facility. The employees began to report those facilities on
Monday, December 5, 2011. Shipping employee Ronnie
Deline, who was responsible for packing and shipping the
equipment, was the last employee to leave the Wisne facility on
December 15, 2011. The equipment from the Wisne facility
that was used in assembling the aircraft gantry was moved to
Royal Oak.
On June 5, 2012, the Respondent reopened the Wisne facility
and all WAEA represented employees who were working at
other facilities of the Respondent were transferred back to that
facility.
Statements Made by Supervisors Regarding the Novi Contract
Vargo testified he was assigned to work at the Novi facility
after the temporary closure of the Wisne facility. According to
Vargo’s uncontroverted testimony, in December 2011, while he
was working at Novi, Durocher stopped him on the shop floor
and told Vargo that his name had been brought up and that
Durocher had heard that he was influencing the Novi employ-
ees about changing their vote on their contract. Vargo replied
that was not true. Durocher told Vargo that he did not want him
to interfere with the Novi employees’ vote on their contract.7
According to the credible, uncontroverted testimony of
LaForest and Ciaramitaro, in late December 2011, they attend-
ed a meeting with Andriano and other management and union
officials at the Respondent’s Southfield facility. After the meet-
ing, Andriano asked LaForest and Ciaramitaro to step into an
office to speak with him. An individual from the human re-
sources department was present, but neither Laforest nor
Ciaramitaro could recall that individual's name. Andriano told
Laforest and Ciaramitaro that he had heard that WAEA repre-
sented employees at Novi were talking to the Novi employees
about the Novi contract that was being negotiated. Andriano
said that he wanted Laforest and Ciaramitaro to tell their
“guys” at Novi not to talk about the contract. Andriano said he
should not say this in front of human resources, but if LaForest
and Ciaramitaro did not speak to their members about this, he
would shut their plant down permanently. LaForest and
Ciaramitaro said they would speak to their members about not
talking about the Novi contract negotiations.8

7 At the time of this conversation the Novi employees, who are rep-
resented by the NIEA, were considering whether to ratify a new collec-
tive-bargaining agreement at their facility. Vargo testified that Novi
employees asked him what was in the WAEA contract and some em-
ployees told Vargo that they did not like the new contract and were not
going to vote for it. Vargo testified that he agreed with those employees
who did not think the new NIEA contract was a good one.
8 There is no complaint allegation regarding statements made by
Andriano. At the trial, counsel for the Acting General Counsel indicat-
ed that it was being admitted as background to the complaint allegation
regarding Durocher’s statement to Vargo that is recited above. I indi-
cated that I would consider this evidence for that purpose but would not
consider the evidence as a violation of the Act unless an amendment to
the complaint was made at the hearing. No such complaint amendment
was made. While the statements made by Andriano were not contained
COMAU, INC. 17
The Application of New Novi Work Rules to WAEA
Represented Employees
On January 18, 2012, the Respondent executed a new collec-
tive-bargaining agreement with the NIEA which was effective
by its terms from January 11, 2012, covering the Novi facility.
(Jt. Exh. 2.) This agreement had been ratified by the NIEA
membership on approximately January 11. Article 1 of the
NIEA collective-bargaining agreement altered the recognition
clause by adding the following after the description of the unit
covered by the agreement:
Any other person that is employed by the Employer and is
considered as a regular, full-time employee at another Comau,
Inc. facility will be obligated to follow the established proto-
col and rules as set forth in this agreement for all purposes
while they are working within the NIEA bargaining unit. This
does not alter the following earned (paid) benefit from the
employee's home bargaining unit:
Wages
Vacation
Healthcare benefits
Non-NIEA employees temporarily transferred into the Novi
facilities will have no seniority rights within the NIEA bar-
gaining unit.
In mid-January 2012, the Respondent began to hold meetings
with employees and contractors who were working at Novi to
inform them of the new rules that would be applied there. The
uncontroverted testimony of Brooks and Ciaramataro establish-
es that in one such meeting held at Novi in the maintenance
department in mid-January 2012, there were approximately 25
employees and contractors present. Supervisors Matt Parsons
and Mark Corich were present but Parsons did most of the talk-
ing during the meeting. Parsons stated that the NIEA had set-
tled its contract. He also stated that there was a new set of rules
for the Novi facility and that everybody who was working at
the facility would have to abide by those rules. He specifically
stated that the attendance policies would be changed and that
personal days and sick days were no longer valid as they were
“negotiated items” and not a “company benefit.” Parsons also
stated that the WAEA contract was void at Novi.
On January 17, 2012, after the meetings with employees on
the shop floor were held at Novi, LaForest, Vargo, Ciaramitaro,
and Gault met with McKee, Cormier and Durocher to discuss
what employees had been told about the application of new
rules at Novi.9 McKee indicated that the Novi employees had
ratified their contract and that management wanted to be clear
about how the new rules would apply to employees while they
working at Novi. LaForest said he wanted something in writing
and did not see how management could go out and tell the

in the affidavits that LaForest and Ciaramitaro gave during the investi-
gation of this case, I found their trial testimony regarding this event to
be credible. Their testimony was mutually corroborative and consistent
and their demeanor while testifying exhibited certainty regarding the
statements made to them.
9 Vargo recorded the meeting. A CD recording of the meeting was
introduced into the record as GC Exh. 22 and a transcript of the record-
ing was introduced as GC Exh. 43.
WAEA represented employees about these rules at this point.
Cormier indicated that the contract was not yet signed and that
until it was signed she could not finalize any of the other doc-
uments that went with it.
Durocher stated that because the NIEA was the bargaining
agent at Novi, he owed “due diligence” to the NIEA first and
that he owed the WAEA nothing relative to the validity of that
contract. He stated that “you didn’t vote on the contract because
you are not part of this union.” He added that “if you like this,
you can become part of the Novi union.” (GC Exh. 43, p. 6.)
Durocher indicated that the Respondent had agreed that the
WAEA, the NIEA, and the CEA employees have the “ability to
exercise companywide seniority relative to displacing non-
Comau employees also known as contractors.” He indicated,
however “you do not have the right to come to the new plant
and say, by the way, my rulebook is what I'm working to.”
Durocher then stated that “if you can’t live by these rules, you
might want to just say I'll stay on layoff or I’ll wait for different
opportunity to come my way. That's the deal, okay.” (GC Exh.
43, pp. 9–10.)
Durocher told the WAEA representatives that “Your contract
has nothing to do with this plant.” Durocher indicated that
earned benefits such as seniority, vacation health insurance, and
life insurance go with employees wherever they went within the
company but that rules do not, as rules are plant specific. He
reiterated that “the rules in the Novi facility apply to everybody
that works in here. Attendance which seems to be the sticking
point, is a rule.” (GC Exh. 43, p.11.)
Durocher also told the WAEA representatives that “when it
comes to seniority you have no seniority rights within [the
Novi] facility.” He stated that WAEA employees had no right
to claim overtime over a contractor as “there are no seniority
rights beyond the NIEA.” When Vargo asked how long the
WAEA employees would be working at Novi, Durocher said
that he had no idea and then stated, “you guys have the right to
do voluntary layoffs in your language.” Cormier agreed that
was the case.
When LaForest asked Durocher if he could find out if the
Respondent could get rid of the contractors, Durocher stated he
could not answer that. Durocher then stated, “you guys don’t
want to come in, take a voluntary layoff, here’s the deal, you
displaced the contractor I had in here making money for us.
That’s okay you're making money for us. But understand some-
thing; the Company does not need permission from you guys to
do our job.” He added “I’m just saying there’s openings in
Alabama, too. Would like me to transfer you there and give you
two weeks to report down there, and if you don’t show up it’s a
voluntary quit? Because we checked we can do that, too. You
don’t get to pick where your transfer goes, you go where the
opening is or you say I don’t want to do it, I'll stay on layoff.
So-happy if we can explore that opportunity, too. We’re asking
you people to work with us. But you know what-I have-no
problems with outside contractors or Novi people in all of these
discussions. The only problems come from your guys’ union
because of the personal days. And there is no way I’m going to
do that.” (GC Exh. 43, p. 29.) Near the end of the meeting Du-
rocher stated that the rules would take effect on the coming
Monday (January 23) and indicated that the Respondent would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
not give copies of the rules to theWAEA before they were giv-
en to the NIEA.
On January 20, 2012, the WAEA filed a grievance (GC Exh.
36) claiming that by applying the Novi rules to employees it
represented the Respondent was violating article 1, the recogni-
tion clause of its current collective-bargaining agreement. The
WAEA sought as a remedy that the Respondent honor its con-
tract in its entirety no matter what facility employees were
working in.10 On the same date, the WAEA filed a grievance
over the temporary closure of the Comau Auto (Wisne) facility.
As a remedy the WAEA sought the reopening of the facility.
On Monday, January 23, 2012, the Respondent’s supervisors
began to distribute to employees and contractors working at the
Novi facility a document entitled “Comau Novi Campus Poli-
cies and Rules” (Novi rules). The Novi rules were not given to
the WAEA prior to their implementation. The Novi rules indi-
cate that they applied to all employees who are temporarily
working at the Novi campus. (Jt. Exh. 3.) The rules specifically
state:
When temporarily working at the Novi campus, all
such employees must comply with the rules and policies as
set forth in this document and can be disciplined or termi-
nated for failing to do so. This does not alter the following
paid benefits granted to non-NIEA bargaining unit mem-
bers under their home bargaining unit collective bargain-
ing agreement who may be temporarily working at the
Novi campus:
Wages
Vacation
Paid Holidays /Bonus Days
Healthcare, life, and disability insurance benefits
Retirement benefits
Non-NIEA bargaining unit members temporarily working at
the Novi Campus will have no seniority rights at the Novi Campus, including for purposes of
The Novi rules make a number of changes in terms and con-
ditions of employment set forth in the WAEA collective-
bargaining agreement. The Novi rules eliminate the “50-hour
rule” contained in article 25, paragraph 8 of the WAEA collec-
tive-bargaining agreement which indicates that when the work
schedule for the week is 55 hours or more, an employee is re-
quired to work at least 50 hours in that week. That section of
the WAEA collective-bargaining agreement further provides
that there are other required numbers of hours an employee
must work for weekly schedules under 55 hours. The Novi
rules also eliminate the provision contained in article 25,
pararagraph 8 of the WAEA contract which indicates that an
employee will be subject to discipline if the employee fails to
meet the minimum hours more than 1 week of the month. The
parties commonly referred to this provision as the “bad week”
rule. In this connection, the Novi rules explicitly state that no
"bad weeks" are permitted while working at Novi and that there
is no “50 hour” rule. The rule states that at Novi employees

10 The 2011–2015 contract between the Respondent and the WAEA
does not contain an arbitration clause although it does contain a no-
strike provision.
may be required to work up to a maximum of 58 hours a week.
With regard to personal days, the Novi rules grant one “per-
sonal absence day” per month and no credit is given for taking
such a day for purposes of calculating the numbers of hours of
work regarding overtime pay. The WAEA contract provides
that employees can take one “period” of unpaid personal time a
month not to exceed two consecutive days and that employees
are given credit toward attendance when they use personal
time. (Jt. Exh. 6, arts. 6.02 and 6.04). In addition, personal time
counts as time worked for calculating when an employee begins
receiving overtime pay for the week. (Jt. Exh. 6, art. 12.02.)
The WAEA contract provides that employees are allowed
five instances of tardiness a month before discipline would be
imposed. (Jt. Exh. 6, art. 25, par. 3.) The Novi rules provide
that employees could use three “flextime opportunities” per
calendar month. In addition, the Novi rules have no provision
for sick time while the WAEA contract provides that employ-
ees can use 6 sick days per calendar year and those days apply
toward attendance and overtime calculations. (Jt. Exh.6, arts.
6.03 and 6.04.)
The Novi rules specifically indicate that “Employees tempo-
rary working at the Novi campus will have no overtime priority
rights.” The Novi rules also require that employees may be
required to work up to a maximum of 50 hours per week and
that “employees must work all scheduled hours” unless the
employee receives preapproved time off as defined in the Novi
rules. The WAEA contract provides that the Respondent” “will
not insist” on employees working overtime.
The Novi rules increase the penalty for “disregard of safety
rules or common safety practices” from the 3 points in the re-
ferred to in the WAEA contract (Jt. Exh. 6, art. 25, par. 13 to
“suspension (1-week maximum), up to & including discharge,
3 points.” (Jt. Exh. 3, p. 3, par. 11.)
The Novi rules impose a drug testing policy which provides,
in relevant part, that:
Employees temporary working at the Novi Campus may be
drug screened on the following conditions: (1) upon returning
from a leave of absence or layoff of thirty (30) days or more,
(2) upon being injured, at management discretion, depending
on the severity and cause of injury, (3) following an accident
or incident while on Comau paid time, while on the Novi
campus, or while operating Comau equipment, regardless of
injury, or (4) due to reasonable cause based on observed be-
havior or other factual circumstances.
Employees temporarily working at the Novi Campus who test
positive for any non-prescription drug will be subject to im-
mediate discharge. Employees temporarily working at the
Novi campus who refuse a drug screen request will be subject
to immediate discharge. If Comau management determines
that suspension, rather than discharge, is appropriate, then the
suspended employee will be required to successfully complete
an EAP program and will be tested randomly for a period of
one year.
The WAEA contract provides only for testing for alcohol (Jt.
Exh. 6, art. 25, par.16).
The Novi shop rules increase the penalty for “threatening, in-
timidating, coercing or inappropriately disrupting the work of
COMAU, INC. 19
employees or supervision at any time” from 3 points in the
WAEA contract (Jt. Exh. 6, art. 25, par. 23) to “suspension (1-
week maximum), up to and including discharge, 3 points.”
Finally, the Novi rules change the progression of discipline
for a violation. The Novi rules state that, in a 12-month rolling
period, 3 points constitute a warning, 6 points will result in a 1-
day unpaid suspension, 9 points will result in a 3-day unpaid
suspension, and 12 points will result in termination. The Novi
rules also state that if an employee is on a disciplinary suspen-
sion on a Friday, the employee is ineligible for overtime work
that weekend, and if the employee is on a disciplinary suspen-
sion the day before or after a paid holiday, the employee will
forfeit his/her holiday pay. The WAEA contract states only that
a total of 12 points during a rolling calendar year will result in
termination. (Jt. Exh. 6, art. 25.)
On January 26 and February 7 the parties discussed the
grievance the WAEA had filed regarding the Respondent’s
failure to apply the provisions of its agreement at Novi after the
announcement of the Novi rules. As a result of these discus-
sions, the Respondent made modifications to the Novi rules an
effort to address the WAEA’s concerns. These modifications
were set forth in the Respondent’s written response to the
grievance dated February 20, 2012 (GC Exh. 36, p. 2; R. Exh.
8). The response indicated, in relevant part, that:
First, the Company agreed that the first violation of the at-
tendance provisions of the Novi Campus policies and rules by
a "guest" employee that occurs on or before March 31, 2012
will result in one disciplinary warning with no points. Any
subsequent violations of the attendance provisions by that
previously warned “guest” employee, or any first violation of
the attendance provisions that occurs on or after April 1, 2012,
will not receive a warning, but will instead result in the ap-
propriate disciplinary points being assigned according to the
Novi Campus Policies and Rules.
Second, in response to the WAEA Committee questions re-
garding how “guest” employees would cover legitimate back-
to-sick days, the Company agreed to the following approach.
The "guest" employee should use his/her personal absence
date to cover the first sick day period. If during that personal
absence day, the “guest employee” does not believe he/she
will be able to come to work the following day due to legiti-
mate sickness, the “guest” employee can call his/her supervi-
sor (by no later than 2:00 on the first day) to request a vaca-
tion day for the following day.
The Respondent indicated that this response resolved the
grievance and closed it.
On February 20, 2012, the Respondent also responded to the
WAEA grievance regarding the temporary closure of the
Comau Auto (Wisne) facility by stating that it was done for
legitimate business reasons and its right to do so is recognized
in the management rights provision of the parties collective-
bargaining agreement. (R. Exh. 8.) Accordingly, the Respond-
ent denied the grievance.
On February 6, 2012, the WAEA filed a grievance regarding
a warning given to employee Hermon Gray for a violation of
one of the new Novi attendance rules. The grievance stated that
Gray had not been given the Novi rules and sought as a remedy
that the warning be removed from his file along with any points
that accompanied the warning. On February 7, 2012, the Re-
spondent indicated that because of its agreement to give WAEA
bargaining unit employees a written warning (with no points)
for the first violation of the Novi rules occurring before March
31, 2012, it removed the points from the warning given to
Gray. (R. Exh. 9.)
On February 13, 2012, the WAEA filed another grievance
claiming a lack of any kind of preferential treatment to its
members regarding the assignment of overtime. The WAEA
sought as a remedy that any and all scheduled overtime should
be offered to a WAEA member or other regular Comau em-
ployee before it was offered to any contractor (GC Exh. 37).
With respect to the grievance filed by the WAEA on Febru-
ary 13, 2012, regarding the assignment of overtime on March
26 and April 2, 2012, McKee sent emails to LaForest asking if
there was any specific instances where the WAEA believed that
employees did not receive overtime when they were entitled to
it so that McKee could investigate the specifics. (R. Exh. 10.)
The record contains no response from the WAEA to this re-
quest.
The record indicates that in addition to Gray, other employ-
ees received warnings for violating the attendance policy under
the new Novi rules. These employees included Ciaramitaro,
Rodney Mitchell, Csaba Lastoczi, and Don Hautau. (GC Exhs.
7, 9–13, 17, and 18.)
The Implementation of the Royal Oak Rules
According to McKee’s uncontradicted testimony, on De-
cember 6, 2011, he attended a meeting between representatives
of the Respondent and representatives of the CEA, the NIEA,
and the WAEA. LaForest and Ciaramitaro attended for the
WAEA. At this meeting the Respondent informed the unions
that a decision had been made to make Royal Oak a permanent
facility. The Respondent indicated that it would be moving its
Powertrain operations to that facility. The unions were also
informed that the Respondent intended to hire a permanent
roster of employees at that facility. The Respondent indicated
it would be posting job opportunities and that all employees
were welcome to apply. The unions were also informed that in
connection with making the facility a permanent facility, the
Respondent would be adopting rules for the employees as-
signed there that would apply to everyone working at the facili-
ty. (Tr. 401–402.)
On December 15, 2011, the Respondent issued an an-
nouncement indicating that Royal Oak would be a permanent
facility. The announcement indicated in part “we will be hiring
a number of new employees in various trades to be permanently
assigned to the facility. Job openings will be posted for oppor-
tunities at the Royal Oak Plant.”
In February 2012, the Respondent supervisors distributed to
employees who were working at the Royal Oak Plant, including
WEAE represented employees, a document entitled “Comau
Royal Oak Facility Policies and Rules Guidelines.” (Jt. Exh. 4.)
The WAEA was not given a copy of the rules before they were
distributed to employees.
The Royal Oak rules altered provisions of the WAEA con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
tract for WAEA represented employees who were working at
Royal Oak. In this connection, the Royal Oak rules indicate “all
employees are required to work the entire schedule was posted
by Royal Oak management” and further indicate that the failure
to do so would subject an employee to discipline, unless the
employee had received prior written approval. Consequently,
there is no allowance in the Royal Oak rules for the application
of the provisions in the WAEA contract regarding the “50 hour
rule” or “bad week” rule.
The Royal Oak rules provide only for vacation days as
“permitted time off.” There is no reference to personal days or
sick leave. The WAEA contract provides for personal days and
sick leave as well as applying those types of leave toward at-
tendance credit and overtime calculations. (Jt. Exh. 6, arts.
6.02, 6.03, 6.04, and 12.02.) The Royal Oak rules provide that
employees can only take vacation days in full-day increments
while the WAEA contract provides that employees can take a
half day of vacation. (Jt. Exh. 6, art. 13.05.)
The Royal Oak rules state that “no employee has overtime
priority rights within the Royal Oak facility” and that manage-
ment has the sole discretion to determine the allocation of over-
time. Accordingly, the rules do not accord any priority to em-
ployees of the Respondent over contractors in the assignment of
overtime. The Royal Oak rules establish that overtime sched-
uled is mandatory and that failure to work scheduled overtime
hours will subject an employee to discipline. The WAEA con-
tract provides that the Respondent “will not insist” on employ-
ees working overtime. (Jt. Exh. 6.06.) The Royal Oak rules also
do not permit employees to work weekend overtime if they
schedule a vacation day on the preceding Friday or following
Monday, while there is no similar restriction in the WAEA
contract.
The Royal Oak rules permit drug and alcohol testing “at the
discretion of management.” As noted above, the WAEA con-
tract does not provide for drug testing.
The Royal Oak rules contain a list of rules, similar to the
shop rules found in article 25 of the WAEA contract. However,
the Royal Oak rules do not contain a point system that refers to
a progressive disciplinary procedure. The Royal Oak rules state
that employees who fail to comply with the rules will be subject
to discipline up to and including discharge in the discretion of
management.
The Practice of Allowing WAEA Representatives to Conduct
Union Business During Working Time
The record establishes that the Respondent’s established
practice is to permit WAEA employee representatives time off
to conduct union business with the permission of the employ-
ee’s supervisor. In February 2012, Ciaramitaro was working at
Novi when he asked his supervisor, Mark Corich, for permis-
sion to take time off in order to prepare grievances. Corich gave
Ciaramitaro permission to do so and Ciaramitaro left to prepare
grievances. When Ciaramitaro returned to his workstation,
Corich told him that he was not going to be able to take time
off for union business in the future as Durocher told him that
WAEA did not exist anymore and it could not do business.
Corich gave Ciaramitaro a note that Corich had signed which
indicated:
Quote from Tom Durocher Feb. 12, 2012
I closed Comau Auto so there isn’t any union (CAE).11 So
how can Paul go on union business.
Ciaramitaro testified that Corich later approached him and
told him that if he needed to leave to perform union business
during working time he had to go through another supervisor
and could not talk to Corich about it anymore. After that
Ciaramitaro would seek permission to conduct Union business
from supervisor Richard Thompson. According to Ciaramitaro
he was never denied permission to conduct union business
when he asked to do so. Laforest also testified that he was nev-
er denied the opportunity to conduct union business when he
requested to do so after February 2012.
Analysis
Whether the Respondent Violated Section 8(a)(5) and (1) of the
Act by Failing to Bargain Over the Effects of the Temporary
Closure of the Wisne Facility
The Acting General Counsel contends that the Respondent
had an obligation to bargain over the effects of the temporary
closure of the Wisne facility and the transfer of employees and
relocation of unit work to other facilities. In support of his posi-
tion, the Acting General Counsel relies on, inter alia, First Na-
tional Maintenance Corp. v. NLRB, 452 U.S. 666 (1981); Met-
ropolitan Telectronics Corp., 279 NLRB 957 (1986); and Na-
perville Jeep/Dodge, 357 NLRB 2252 (2012). The Acting Gen-
eral Counsel further contends that the WAEA was not given
notice and an opportunity to bargain over this issue but rather
was presented with a fait accompli. Accordingly, the Acting
General Counsel contends that the Respondent violated Section
8(a)(5) and (1) of the Act.
The Respondent argues that the temporary closure and trans-
fer of employees was routine in nature and did not require bar-
gaining with the Union. The Respondent further contends that
if I find that it violated the Act by acting unilaterally regarding
this issue, it would not be appropriate to grant an affirmative
bargaining order or any backpay as all the affected employees
continue to be employed with the same contractual benefits that
they had been receiving while employed at the Wisne facility.
In support of its position regarding the remedy, the Respondent
relies on AG Communications Systems Corp., 350 NLRB 168,
172–174 (2007).
I find that the Respondent had a duty to give notice and an
opportunity to bargain to the WAEA regarding the effects of its
decision to temporarily close the Wisne facility, including the
transfer of employees who were working at that facility to its
Royal Oak and Novi facilities and that its failure to do so vio-
lates Section 8(a)(5) and (1) of the Act. In reaching this conclu-
sion I have carefully considered the fact that the Respondent’s
closure of the Wisne facility was temporary and not a perma-
nent closure. Unlike the situations in First National Mainte-
nance, supra, where the partial closure of the employer’s opera-
tions caused the termination of all of the affected employees

11 Ciaramitaro testified that the reference to CAE meant “Comau Au-
to employees” as that was the shorthand reference that Comau Automa-
tion (Wisne) employees put on their daily time reports.
COMAU, INC. 21
and Metropolitan Telectronics, where the employer’s relocation
of its operations resulted in the termination of almost all of the
unit employees, the temporary closing of the Wisne facility did
not result in any loss of jobs to employees. Rather, the 12
WAEA represented employees who were working at Wisne at
the time of its temporary closure were transferred to the Re-
spondent’s Royal Oak and Novi facilities and their wage rates
and benefits remained the same. Thus, I do not find First Na-
tional Maintenance and Metropolitan Telectronics to be pre-
cisely applicable to the instant situation.
The Board had occasion to determine whether an employer's
failure to bargain over brief 1-day plant closures violated Sec-
tion 8(a)(5) and (1) of the Act in General Die Casters, Inc., 359
NLRB No.7. slip op. at 1, fn.1, 16–18 (2012). There, the em-
ployer shut down its plants for 1 day without giving the union
notice and an opportunity to bargain over the temporary clo-
sure. The affected employees were given the option of taking a
vacation day or a day off without pay. The Board found that the
closure of the plants which resulted in either a loss of a paid
vacation day or an unpaid day off had a “material, substantial
and significant” effect on conditions of employment and was
therefore a mandatory subject of bargaining. In the instant case,
the employees affected by the temporary closure of the Wisne
facility did not lose any pay or benefits but rather were trans-
ferred to other facilities. In Naperville Jeep/Dodge, supra at
2253–2254, the Board noted “The obligation to bargain over
the effects of the closing of the Naperville facility entailed an
obligation to bargain over the transfer of employees to the Lisle
facility, including their initial wages, benefits, seniority rights,
and working conditions at the new location, including whether
they would have continued to work together as a distinct group
. . . ” While Naperville is factually different from the instant
case in that there the closure of the employer’s Naperville facil-
ity resulted in the transfer of the affected employees to a nonun-
ion facility and consequently involved the loss of wages and
benefits, I believe the principle of law stated above regarding
the obligation to bargain about the transfer of employees is
appropriate to apply in the instant case.
In the instant case, while the employees continued to be rep-
resented by the WAEA and did not lose wages or benefits,
obviously there was a change in working conditions as they
were assigned to different facilities and did not continue to
work together as a distinct group. I find that the changes in
working conditions were sufficiently material, substantial, and
significant so as to constitute a mandatory subject of bargain-
ing. While not dispositive of the issue I note that in 2009, when
the Respondent temporarily closed the Wisne plant and trans-
ferred the employees working there to the Novi facility, it bar-
gained with the WAEA regarding the effects of the temporary
closure, including the relocation of unit work and the transfer of
employees. In this connection, the Respondent executed a letter
of understanding with both the WAEA and the NIEA, which
represented the employees at Novi. As noted above, this letter
of understanding indicated that both unions would maintain
their respective union committees, team leaders, and seniority.
Under the terms of this agreement, WAEA represented em-
ployees worked on specific projects in a specific bay located at
the Novi facility. During this period, all the provisions of the
WAEA agreement were applied to the employees temporarily
assigned to Novi. In addition, the current collective-bargaining
agreement between the Respondent and the WAEA effective
from August 22, 2011, to May 3, 2015 (Jt. Exh. 6, art. 4.18)
specifically indicates “should the Company make a business
decision to close a plant or to consolidate plants, the Company
will bargain with the Union regarding the effects of the busi-
ness decision.” This contract provision does not exclude by its
terms temporary closings.
I also note that when representatives of the WAEA and the
Respondent met on December 3, and LaForest was told that he
was being assigned to Novi and that Ciaramitaro was informed
that he was being assigned to Royal Oak, LaForest indicated
that he lived closer to Royal Oak and that Ciaramitaro lived
closer to Novi. Upon being apprised of that fact, the Respond-
ent switched their assignments. I note this is a practical exam-
ple of the issues that can be discussed during effects bargaining.
The Respondent’s unilateral implementation of the closing and
the transfer of employee, however, greatly limited the Union's
ability to engage in bargaining over the issues presented by the
transfer of employees and relocation of unit work.
As noted above, the Respondent began to move the equip-
ment out of the Wisne facility on December 1, 2011, the same
day that the Respondent sent the email to the WAEA advising it
of the temporary closure and the transfer of the employees.
Under these conditions the Union was presented with a fait
accompli and the discussions between the WAEA and the Re-
spondent on December 3 did not fulfill the Respondent's bar-
gaining obligation. The Board has held that “to be timely, the
notice must be given sufficiently in advance of actual imple-
mentation of the change to allow a reasonable opportunity to
bargain.” UAW-Daimler-Chrysler National Training Center,
341 NLRB 431, 433 (2004); Ciba-Ceigy Pharmaceuticals Divi-
sion, 264 NLRB 1013, 1017 (1982). Accordingly, I find that
the Respondent violated Section 8(a)(5) and (1) of the Act by
failing to give notice and an opportunity to bargain to the
WAEA prior to temporarily closing the Wisne facility and
transferring the employees who were working there.
As a remedy for this labor practice I will, of course, order
that the Respondent cease and desist from such unlawful con-
duct and post an appropriate notice. In agreement with the Re-
spondent, however, I find that no useful purpose would be
served by an affirmative bargaining order and backpay remedy
for this violation. The Board noted in AG Communication Sys-
tems Corp., 350 NLRB 168, 173 (2007), that a limited bargain-
ing order and backpay remedy is not awarded in every effects
bargaining case but rather the Board may consider any particu-
lar or unusual circumstances of the case in fashioning a remedy.
In AG Communications Systems, the employer failed to give
notice and bargain over the effects of integrating the AG tele-
phone equipment installer unit into the Lucent telephone
equipment installer unit. The Board found that the employer
violated Section 8(a)(5) and (1) but concluded that an affirma-
tive bargaining order and backpay remedy was not appropriate
under the circumstances. The Board noted that the former AG
installers continued to be employed by the Respondent with full
pay and benefits and also continued to be represented by a un-
ion, albeit by a CWA local rather than an IBEW local. In the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
instant case, as noted above, the WAEA represented employees
who were working at the Wisne facility at the time of its tem-
porary closure were transferred to the Respondent's Novi and
Royal Oak facilities. They continued to receive the pay and
benefits provided for in the WAEA collective-bargaining
agreement and continued to be represented by the WAEA. As
noted above, in June 2012 the Wisne facility was reopened and,
at the time of the hearing, all of the WAEA represented em-
ployees were working at that facility. Under the circumstances,
I find that the remedy for the effects bargaining violation that
the Board applied in AG Communications Systems is the appro-
priate remedy to apply in the instant case.
Whether the Respondent Violated Section 8(a)(5) and (1) by
Failing to Bargain With the WAEA Regarding the Application
of the Novi and Royal Oak Rules to WAEA
Represented Employees
The Acting General Counsel contends that there is a histori-
cal practice of applying the provisions of the contract between
the Respondent and the WAEA to WAEA represented employ-
ees when they are temporarily transferred from the Wisne facil-
ity to other Respondent facilities. The Acting General Counsel
asserts that the Respondent violated Section 8(a)(5) and (1) by
applying the new rules implemented at its Novi and Royal Oak
facilities to employees represented by the WAEA without bar-
gaining with the WAEA.
The Respondent contends that its contract with the WAEA
contains a management-rights clause (Jt. Exh. 6 art. 11) which
gives it the right to make reasonable rules regarding discipline
unless expressly abridged by specific provisions of the contract.
While the Respondent concedes that the shop rules contained in
art. 25 of its contract with the WAEA restricts its right to uni-
laterally make rules at the Wisne facility, it contends that these
rules do not apply at its other facilities. In this regard, the Re-
spondent contends that article 25.02, subsection (e), rule 36
provides that there may be other “Company policies or Proce-
dures or other rules not specifically stated.” The Respondent
contends that this language applies to its right to make rules at
other facilities for the WAEA represented employees. The
Respondent also contends that the Acting General Counsel has
not produced sufficient evidence to prove that there has been an
established practice of applying the shop rules in the WAEA
contract to WAEA represented employees when they working
outside of the Wisne facility. Thus, the Respondent contends
that it had no obligation to bargain with the WAEA about the
application of the Novi and Royal Oak rules to WAEA repre-
sented employees.
In the first instance, I do not agree with the Respondent that
the language of the management-rights clause and the provi-
sions of art.25, rule 36 contained in its agreement with the
WAEA privileges its right to unilaterally establish rules and
policies affecting the conditions of employment of WAEA
represented employees when they are temporarily assigned to
the Respondent's other facilities.
In Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983),
the Court expressly affirmed the Board’s longstanding policy
that a waiver of a statutory right must be clear and unmistaka-
ble. The Board reaffirmed its adherence to that standard in
Provena St. Joseph Medical Center, 350 NLRB 808 (2007). It
is clear that the Novi and Royal Oak rules involve terms and
conditions of employment that constitute mandatory subjects of
bargaining. In this regard, the Board has specifically found the
following subjects contained in those rules to be mandatory
subjects of bargaining: work rules involving the imposition of
discipline, United Cerebral Palsy of New York City, 347 NLRB
603, 607 (2006); and Toledo Blade Co., 343 NLRB 385 (2004);
changes in the assignment of overtime, Dearborn Country
Club, 298 NLRB 915 (1990); absenteeism and tardiness poli-
cies, Dynatron/Bondo Corp., 324 NLRB 572 (1997); drug test-
ing policies, Allied Aviation Fueling of Dallas, 347 NLRB 248
fn. 2 (2006); and layoffs General Die Casters, Inc., supra.
In Provena St. Joseph Medical Center, supra, at 811 the
Board indicated that the clear and unmistakable waiver stand-
ard “requires bargaining partners to unequivocally and specifi-
cally express their mutual intent to permit unilateral employer
action with respect to a particular employment term, notwith-
standing the statutory duty to bargain that would otherwise
apply.”
The contract language the Respondent relies on does not
specifically exclude the application of the WAEA agreement or
established extracontractual practices to WAEA represented
employees when they are temporarily working outside of the
Wisne facility. In addition, there is no evidence that the WAEA
intentionally waived its right to bargain over mandatory sub-
jects of bargaining applying to WAEA represent employees
when they were working on temporary assignment at other
Respondent facilities during its 2011 negotiations with the Re-
spondent. Thus, there is neither an explicit contractual dis-
claimer nor clear evidence of an intentional waiver during bar-
gaining of the WAEA’s right to bargain over mandatory sub-
jects of bargaining applying to WAEA represented employees
when they working temporarily outside of the Wisne facility.
Accordingly, the current contract between the Respondent and
the WAEA does not privilege the Respondent to act unilaterally
regarding the mandatory subjects of bargaining contained in the
Novi and Royal Oak rules.
The next issue to consider is whether there was a clear prac-
tice of applying the terms of the WAEA and extra contractual
conditions of employment such as the assignment of overtime
and the order of layoffs when the WAEA employees were tem-
porarily assigned to other Respondent facilities. As noted
above, it is undisputed that provisions of the WAEA contract
regarding wages, health insurance, life and disability insurance,
the 401(k) plan, classifications, seniority and paid holidays
were applied to applied to WAEA represented employees
working outside of the Wisne facility.
With respect to the application of the attendance policies set
forth in the WAEA contract to WAEA represented employees
when there were working outside of their home plant, LaForest
was able to use personal days and vacation days as provided in
the WAEA contract, while he was working at Royal Oak from
January through May 2010. Brooks was also able to use per-
sonal days under the WAEA contract while working at Royal
Oak in November 2010. In addition, when Brooks was assigned
to the Novi facility on January 13, 2012, after returning from
medical leave, he was not given a drug screen despite having
COMAU, INC. 23
been absent for more than 30 days. This was consistent with
provisions of the WAEA contract, which provided only for
alcohol testing. Clearly, the provisions of the expired Novi
contract were not applied to him, since that agreement con-
tained a provision that employees were to undergo a drug
screen after returning from an absence of more than 30 days. In
addition, Brooks, LaForest, and Ciaramitaro all testified that
they were never informed that the shop rules and attendance
policies of the WAEA contract were not applicable to them
while they were temporarily assigned to other Respondent fa-
cilities prior to January 2012.
Prior to January 2012, the Respondent had a practice with re-
spect to the assignment of overtime at its various plants in the
Detroit area when employees were working outside of their
home plant. The first opportunity for overtime was given to the
employees of the home plant. Next, employees of the Respond-
ent who were temporarily assigned to that plant would be of-
fered overtime. Finally, contractors who are not part of the
Respondent's permanent work force would be given an oppor-
tunity for overtime.
Prior to January 2012, the Respondent also had a practice re-
garding layoffs when employees were temporarily assigned to a
plant. Layoffs were always conducted within classifications.
The first individuals to be laid off within each classification
would be contractors. Next, employees who were not working
at their home plant would be laid off by classification according
to the seniority list of their home plant. The last employees to
be laid off would be the employees working at the home plant.
When employees represented by both other unions were as-
signed to work at another of the Respondent’s home plants,
visiting employees represented by the other unions would be
laid off proportionally in an equitable fashion before the em-
ployees of the home plant were laid off. The only exception to
this practice occurred in 2008 at Novi when, over the objection
of the WAEA, the Respondent laid off WAEA represented
employees before those represented by the CEA.
Finally, as discussed above, in March 2009, when the Wisne
plant was temporarily closed, the Respondent, the WAEA, and
the NIEA entered into a letter of understanding providing that
the WAEA and the NIEA would coexist in the Novi facility and
that the WAEA represented employees would work on a specif-
ic list of projects. During this period of time the provisions of
the WAEA contract applied to the WAEA represented employ-
ees working at Novi.
The Respondent has correctly noted in its brief that it is the
General Counsel's burden to prove that an activity is an estab-
lished past practice. National Steel & Shipbuilding Co., 348
NLRB 320, 323 (2006). Under the circumstances of this case, I
find that the Acting General Counsel has established a past
practice of applying the WAEA contract, including the shop
rules contained in article 25 and the attendance policies, to
employees represented by the WAEA when such employees
were working at the Respondent's facilities other than their
home plant. I also conclude that established policies regarding
the assignment of overtime to WAEA represented employees
and the layoff of such employees were applied when WAEA
represented employees worked outside of their home plant.
In the first instance, it is undisputed that wages, benefits,
classifications and the union security provision of the WAEA
contract were applied to WAEA represented employees work-
ing outside of their home plant prior to January 2012. It is also
clear that the Respondent applied the separate "Wisne Automa-
tion Seniority List" to Wisne employees when they worked
outside of the Wisne facility. In fact, the current contract be-
tween the Respondent and the WAEA requires the Respondent
to apply the separate seniority roster of the WAEA to employ-
ees it represents when they work outside of their home plant.
In 2009, the Respondent entered into a letter of understanding
with the WAEA clearly establishing that the WAEA would
retain its union committee, team leaders, and seniority list while
employees it represents were working at the Novi facility dur-
ing a period when the Wisne facility was temporarily closed.
During this period of time all of the provisions of the WAEA
contract were applied to WAEA represented employees work-
ing at the Novi facility.
There are also some specific examples of the application of
the attendance policies and shop rules contained in the WAEA
contract to WAEA represented employees while they were
temporarily assigned to other Respondent facilities. In this con-
nection, the Respondent permitted LaForest to take personal
days pursuant to the WAEA contract while he was employed at
Royal Oak in 2010. When Brooks returned from a medical
leave lasting over 2 months on January 13, 2012, he was as-
signed to the Novi facility. Although the expired Novi agree-
ment provided that employees returning from a leave exceeding
30 days would be given a drug screen, this provision was not
applied to Brooks. There is no evidence that WAEA represent-
ed employees were ever told that the shop rules contained in
article 25 of the WAEA contract and the attendance policies of
that contract would not apply to them when they were working
outside of their home plant.
As I have indicated above, there is also an established prac-
tice regarding the assignment of overtime to WAEA employees
and the layoff of such employees working outside of their home
plant.
In reaching the conclusion that the WAEA contract, includ-
ing the shop rules and the attendance policies, apply to WAEA
represented employees while they were working outside of
their home plant, I rely heavily on the fact that it is undisputed
that the WAEA contract generally applied to employees while
they were on temporary assignments. The record contains no
evidence of situations prior to January 2012, where different
policies regarding shop rules or attendance were applied to
WAEA represented employees while they were working at any
other of the Respondent’s facilities. This detracts from the Re-
spondent’s argument that the shop rules and the attendance
provisions of the WAEA contract did not apply to WAEA rep-
resented employees when they were working outside of the
Wisne facility. The only example of the Respondent not apply-
ing the assignment of overtime and layoff policies set forth
above regarding WAEA represented employees working out-
side of their home plant occurred at the Novi facility in 2008. In
that situation, the Respondent laid off WAEA represented em-
ployees working at Novi and retained CEA represented em-
ployees rather than laying off employees represented by both
unions in an equitable proportionate manner. This occurred
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
over the vigorous protest of the WAEA. This one example does
not detract from the established practice the Respondent em-
ployed regarding the order of layoffs at its plants when there
were employees temporarily assigned outside of their home
plant.
Under the circumstances of this case, I find that the cases re-
lied on by the Respondent in support of its position that there is
insufficient evidence to establish the claimed practices to be
distinguishable. In BASF Wyandotte, 278 NLRB 173 (1986),
the General Counsel alleged that the employer violated Section
8(a)(5) and (1) by modifying the practice of allowing two em-
ployee union representatives to have unrestricted access to
other employees and supervisors for the purpose of grievance
handling. In finding that the General Counsel had not estab-
lished a practice, the administrative law judge, whose opinion
was adopted by the Board, noted that the testimony of the two
employees was vague and unresponsive regarding the specifics
of meeting with any supervisors while on “union time.” The
administrative law judge also noted that it was undisputed that
the employer was not aware of the employees’ activities while
they were on “union time,” including any discussions with
supervisors. Id. at 180. In Raley’s Inc., 348 NLRB 382 (2006),
the General Counsel alleged that the employer unilaterally
changed a past practice of granting unlimited access to employ-
ees by union representatives and shop stewards. The Board
adopted the administrative law judge’s finding that there was
only minimal evidence in the record regarding store visitations
by union representatives and thus there was insufficient evi-
dence to establish a practice in this regard
In the instant case, as I have noted above, it is undisputed
that generally the employer applied the provisions of the
WAEA contract to WAEA represented employees working
outside of the Wisne facility. There are also specific examples
of the application of the shop rules and attendance policies
contained in that contract. In addition, the Respondent applied
consistent policies regarding the assignment of overtime and
layoff regarding WAEA represented employees when they
were working at other Respondent facilities outside of their
home plant.
It is well established that an employer violates Section
8(a)(5) and (1) of the Act by changing wages, hours or other
terms and conditions of employment of bargaining unit em-
ployees without giving the employees' bargaining representa-
tive notice and a meaningful opportunity to bargain about the
changes. NLRB v. Katz, 369 U.S. 736, 743, (1962) United Cer-
ebral Palsy of New York City, 347 NLRB 603, 607 (2006). As I
have indicated above, the Novi and Royal Oak rules changed
terms and conditions of employment which are mandatory sub-
jects of bargaining. The Respondent did not give meaningful
notice and an opportunity to bargain to the WAEA before im-
plementing the Novi and Royal Oak rules. At Novi, employees
were told in mid-January 2012 that the Respondent had reached
a contract with the NIEA and that new rules would be applied
to all employees who were working at Novi. On Tuesday, Jan-
uary 17 representatives of the WAEA met with the Respondent
and were orally apprised in summary fashion of what the rules
would apply to and that they would go into effect the following
Monday, January 23. When the WAEA requested a copy of the
rules, the Respondent indicated that copies were not yet availa-
ble. On January 23, the Novi rules were distributed to employ-
ees by supervisors. Under these circumstances, the WAEA was
clearly presented with a fait accompli. General Die Casters,
Inc. supra, at slip op. p. 17.
At Royal Oak on December 5, 2011, McKee informed repre-
sentatives of the WAEA that the Respondent would be making
Royal Oak a permanent facility with a permanent work force.
McKee also stated that the Respondent would be adopting rules
for the employees assigned there but did not convey any specif-
ic information regarding those rules. In February 2012, the
Respondent distributed to employees working at the Royal Oak
facility the new rules without giving a copy of the rules before-
hand to the WAEA. I do not find that the McKee’s general
statements made on December 5 were sufficient to apprise
WAEA of the fact that these rules may have a substantial and
material impact on the WAEA represented employees working
at Royal Oak. Accordingly, I find that McKee’s statements on
December 5, 2011, did not constitute sufficient notice to the
WAEA of proposed changes in mandatory subjects of bargain-
ing such that the WAEA was obligated to request bargaining at
that time. See Oklahoma Fixture Co., 314 NLRB 958, 960–961
(1994), enf. denied 79 F.3d 1030 (10th Cir. 1996).
At neither Novi nor Royal Oak were copies of the rules pro-
vided to the WAEA prior to their distribution to employees. At
the trial, McKee indicated that the Respondent did not believe it
was required to give notice and an opportunity to bargain to the
WAEA before implementing the Novi and Royal Oak rules (Tr.
435). The statements of Durocher on January 17, 2012, made it
clear to the WAEA representatives that the Respondent did not
intend to bargain with them regarding the application of the
Novi rules.
I understand the Respondent’s desire to have uniform poli-
cies regarding attendance; employee rules; the assignment of
overtime; and layoffs of employees from different home plants
working at the Novi and Royal Oak facilities. The fact is, how-
ever, that the provisions of the Respondent's contract with the
WAEA do not clearly and unmistakably give the Respondent
the unilateral right to apply such policies to WAEA represented
employees working at those facilities. As noted above, the rec-
ord indicates that the Respondent had an established policy of
applying the provisions of the WAEA contract to employees
represented by the WAEA working at the Novi and Royal Oak
facilities. The Respondent also had an established policy of
applying extracontractual practices to those employees regard-
ing the manner in which overtime was assigned and the order in
which they were laid off relative to employees of the home
plant, employees represented by another visiting union, and
contractors. Under these circumstances, it was incumbent upon
the Respondent to give notice to the WAEA and an opportunity
to bargain before applying these rules to the WAEA employees.
By failing to do so, the Respondent has violated Section 8
(a)(5) and (1) of the Act.
The Acting General Counsel further contends that the Re-
spondent also violated Section 8 (d) of the Act by making uni-
lateral changes to terms and conditions of employment con-
tained in the 2011–2015 collective-bargaining agreement be-
tween the Respondent and the WAEA. It is clear that an em-
COMAU, INC. 25
ployer violates Section 8(a)(5) and (1) and Section 8(d) by
modifying any provision regarding a mandatory subject of bar-
gaining contained in the collective bargaining agreement during
the term of that agreement. Daycon Products Co., 357 NLRB
508 (2011); Milwaukee Spring Division, 268 NLRB 601, 602
(1984). As I have found above, the Respondent had a practice
of applying the terms of the WAEA collective-bargaining
agreement to WAEA represented employees temporarily work-
ing at the Novi and Royal Oak facilities. The rules that the Re-
spondent unilaterally implemented at Novi and Royal Oak in-
cluded changes in the following mandatory subjects of bargain-
ing contained in the collective-bargaining agreement between
the Respondent and the WAEA: overtime credits (Jt. Exh.6, art.
12); seniority for purposes of layoff (Jt. Exh. 6, art. 4); mini-
mum working hours (Jt. Exh. 6, art. 25, rule 8); and penalty
increases to existing rules (Jt. Exh. 6, art. 25). It is clear that the
Respondent did not seek the consent of the WAEA prior to
applying the Novi and Royal Oak rules to employees represent-
ed by the WAEA working at those facilities. Accordingly, in
addition to the violation of Section 8(a)(5) and (1) set forth
above the Respondent also violated Section 8(d) of the Act by
instituting changes regarding the above noted provisions in its
current collective-bargaining agreement with the WAEA.
The Appropriate Unit
As noted at the outset of this decision, the Acting General
Counsel alleged in the complaint that the appropriate unit is
somewhat different than the bargaining unit described in the
2011–2015 collective-bargaining agreement between the par-
ties. In relevant part the unit described in the collective-
bargaining agreement is: “[A]ll full-time and regular part-time
production and maintenance employees, including inspectors,
employed by the Employer at its facilities located at 42445
West 10 Mile Road, Novi, Michigan, but excluding all office
clerical employees, guards and supervisors as defined in the
Act.” The Acting General Counsel alleges that the unit descrip-
tion should be changed, in relevant part, to indicate that it in-
cludes all employees “employed by Respondent at and out of
its facility located at 42445 West 10 Mile Road.”
As set forth above, I have found that, by practice, the Re-
spondent applied the terms of the WAEA collective-bargaining
agreement to WAEA represented employees when they were
temporarily assigned to another of the Respondent's facilities. I
do not believe, however, under the circumstances of this case,
that it is appropriate to change the historical, voluntarily agreed
to unit description contained in the WAEA collective-
bargaining agreement. It is important to keep in mind that the
contract was applied to employees working outside of the
Wisne plant by practice and that the violations of the Act that
the Respondent committed involve a deviation from that prac-
tice in that it unilaterally implemented new terms and condi-
tions of the employees to WAEA while they were temporarily
working outside of the Wisne facility.
I find the cases relied on by the Acting General Counsel in
support of his position regarding changing the contractual unit
description to be unpersuasive. In this connection, in Cencom of
Missouri, 282 NLRB 253 (1986), the employer consolidated
job functions and reclassified employees into new categories.
ADT Security Services, 355 NLRB 1388 (2010); Comar, Inc.
339 NLRB 903 (2003); and Leach Corp., 312 NLRB 990
(1993), all involved the permanent closure of a facility and the
permanent relocation of unit work. These cases all involved
situations quite different from the instant one.
As will be set forth in more detail herein, I will order the Re-
spondent to rescind the unlawful unilateral changes it instituted
and bargain with the WAEA in good faith if it wishes to change
the conditions of employment of WAEA employees working
outside of their home plant. Of course, with respect to matters
that are expressly contained in the 2011–2015 collective-
bargaining agreement between the Respondent then the
WAEA, any changes can only be made with the WAEA’s con-
sent. Under these circumstances, I do not find it to be appropri-
ate to change the existing unit description in the manner sought
by the Acting General Counsel. Rather, I will leave it to the
parties to discuss changing the unit description if they so desire
during any bargaining that occurs in compliance with this deci-
sion.
Whether the Respondent Violated Section 8(a)(5) and (1) by
Unilaterally Changing the Policy of Permitting Union Repre-
sentatives to Conduct Union Business During Working Time
As set forth above, the Respondent had a practice of permit-
ting WAEA employee representatives to take time off with
permission of a supervisor to perform union business. While
working at Novi in February 2012, Ciaramitaro asked his su-
pervisor Corich for permission to take time off in order to pre-
pare grievances. Corich gave Ciaramitaro permission to do so
and Ciaramitaro left his work area to prepare the grievances.
When Ciaramitaro returned to his workstation, Corich told him
that he was not going to be able to take time off for union busi-
ness in the future as Durocher told him that the WAEA did not
exist anymore and it could not do business. Corich gave
Ciaramitaro a note that Corich had signed indicating that Du-
rocher had stated "I closed, Comau Auto so there isn’t any un-
ion (CAE). So how can Paul (Ciaramitaro) go on union busi-
ness.”
Corich later told Ciaramiataro that if he needed to leave to
perform union business during working time he had to go
through another supervisor and could not talk to Corich about it
anymore. After that Ciaramitaro would go to another supervi-
sor, Thompson, in order to get permission to conduct union
business. The record establishes that there was not even one
occasion when a WAEA representative was denied permission
to conduct union business during working time after February
2012.
An established practice of permitting employee union repre-
sentatives to conduct union business during working time is a
mandatory subject of bargaining. Ernst Home Centers, Inc. 308
NLRB 848–849 (1992). There, the Board found that the em-
ployer had an established practice of permitting the union's
business representatives to have limited conversations with the
employer's employees on the sales floor of the employer’s
stores. The Board found that the employer's unilateral prohibi-
tion of the union business representatives right to speak with
employees in all areas except the break room or lunchroom was
a material change and one that the employer was obligated to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
bargain over with the union. The Board determined that the
employer's failure to do so violated Section 8(a)(5) and (1) of
the Act.
In the instant case, the only change that the Respondent im-
plemented was requiring Ciaramitaro to seek permission from
Thompson rather than Corich before he conducted any union
business during working time. There is no evidence that the
Respondent ever actually restricted the right of any WAEA
employee representative from conducting union business dur-
ing working time with permission of a supervisor. Thus, the
Respondent took no action to unilaterally restrict WAEA em-
ployee representatives in a material, substantial, and significant
way from conducting union business during working time with
supervisory permission. Accordingly, I shall dismiss the allega-
tion contained in paragraph 13 of the complaint alleging that
the Respondent unilaterally changed its past practice of allow-
ing WAEA officials the right to conduct union business during
working time.
A related allegation in paragraph 9 of the complaint alleges
that on or about February 24, 2012, the Respondent, through
Corich informed employees in the unit that their Union no
longer existed in violation of Section 8(a)(1) of the Act. The
above-noted testimony of Ciaramitaro, together with the note
given to him by Corich, establishes that the Respondent con-
veyed to Ciaramitaro that it did not recognize the right of the
WAEA to represent employees in its historical unit while such
employees were working at the Novi plant. Since, as I have
found above, the WAEA did have the right to continue to rep-
resent employees in its historical unit while they were working
at the Novi plant, the Respondent has violated Section 8(a)(1)
as alleged in the complaint. Ed Morris Auto Park, 336 NLRB
1090, 1099 (2001).
I do not agree with the Respondent's assertion in its brief that
it should not be held liable for Corich’s statement because it is
not consistent with the Respondent’s position and was not au-
thorized. The Respondent's answer to the complaint admits that
Corich was a supervisor and agent of the Respondent within the
meaning of the Act. Thus, Corich had actual authority to act on
the Respondent's behalf. It is the Board's established policy that
a “principal is responsible for its agents actions undertaken in
furtherance of the principal's interests that fall within the gen-
eral scope of authority attributed to the agent.” Wal-Mart
Stores, Inc. 350 NLRB 879, 884 (2007). It is clear that making
statements regarding labor relations matters was within the
scope of Corich’s authority.
As noted in the Acting General Counsel’s brief, the Board
has specific standards that an employer must meet in repudiat-
ing unlawful conduct in order to escape liability. Passavant
Memorial Area Hospital, 237 NLRB 138 (1978). In order to be
effective, the repudiation must be “timely, unambiguous, spe-
cific in nature to the coercive conduct and free from other pro-
scribed illegal conduct.” In addition, there must be adequate
publication of the repudiation to the employees involved and
there can be no unlawful conduct on the employer's part after-
wards. Finally, the employer should give assurances to employ-
ees that in the future it will not interfere with their Section 7
rights. Id. at 138–139. In the instant case, the Respondent took
no affirmative action to repudiate Corich’s conduct and is
therefore responsible for it.
The Additional 8(a)(1) Allegations
Paragraph 8 of the complaint alleges that in early January
2012, the Respondent, by Durocher, violated Section 8(a)(1) of
the Act by coercively interrogating employees about their dis-
cussion of union matters with other employees and directing
employees not to discuss union matters.
In December 2011, while Vargo was working at Novi, Du-
rocher stopped him on the shop floor and told him that his
name had come up as influencing the Novi employees about
changing their vote on ratifying their contract. Vargo replied it
was not true. Durocher then told Vargo that he did not want
him to interfere with the Novi employees’ vote on their con-
tract. At the hearing, Vargo explained that Novi employees had
approached him and asked him questions about some of the
issues contained in the WAEA contract. According to Vargo,
some of these employees had told him they did not like the
terms of their new contract and were not going to vote for it.
Vargo testified that he expressed his agreement with those em-
ployees who did not think the new contract was a good one.
When Vargo spoke to Novi employees about the relative
merits of the WAEA contract as compared to the proposed
NIEA contract, he was engaged in union and protected concert-
ed activity. When Durocher told Vargo that he had heard that
Vargo was influencing Novi employees to vote against their
proposed contract, Durocher’s statement clearly invited a re-
sponse from Vargo and sought information regarding his union
and protected concerted activity . Durocher’s statement to
Vargo was therefore interrogation in violation of Section 8(a)
(1) of the Act. Durocher’s statement to Vargo that he did not
want Vargo to interfere with the vote of the Novi employees on
the contract was a clear directive not to discuss an issue involv-
ing union and protected concerted activity with other employ-
ees and thus also violated Section 8(a) (1) of the Act. Trade
West Construction, Inc. 339 NLRB 12 fn. 2, 14 (2003).
Paragraph 10 of the complaint alleges that on or about Janu-
ary 18, 2012, the Respondent, through Durocher, violated Sec-
tion 8(a)(1) by threatening employees that if they did not accept
new work rules that varied from the provisions of the WAEA
agreement they could take layoffs.
On January 17, 2012, Durocher held a meeting with WAEA
employee representatives Vargo, LaForest, Ciaramitaro, and
Gault to discuss the new Novi rules that would be implemented
at the Novi facility. During this meeting Durocher told the
WAEA representatives that “your contract has nothing to do
with its plant.” Durocher indicated that while “earned benefits”
such as seniority, vacation and insurance went with an employ-
ee to wherever the employee moved within the company, plant
rules did not as those were plant specific. Durocher added that
the rules at the Novi facility applied to everybody that worked
there. He emphasized that the attendance policy, which seem to
be the “sticking point,” was a rule. Durocher then stated “if you
can't live by those rules, you might want to just say I'll stay on
layoff or I'll wait for different opportunity to come my way.
That's the deal, okay.”
Later in the meeting when LaForest asked Durocher if he
could find out if the Respondent could get rid of the contrac-
COMAU, INC. 27
tors, Durocher responded that he did not know. Durocher then
stated again that if “you guys don't want to come in, take a
voluntary layoff, because here's the deal, you displaced the
contractor we had in here making money for us. That’s okay
because you are making money for us. But understand some-
thing, the Company does not need permission from you guys to
do our job.” Durocher then added that there were openings in
Alabama and asked if they would like him to transfer them
there and give them 2 weeks to report and if they did not show
up “it’s a voluntary quit.” Durocher said that employees do not
get to pick where they are transferred; they either go where the
opening is or stay on layoff. Durocher added that he had no
problems with outside contractors or Novi employees on this
issue and stated “The only problems come from your guys’
union because of the personal days. And there is no way I'm
going to do that.”
Durocher’s statements indicated that the recently negotiated
provisions of the Respondent's contract with the NIEA regard-
ing attendance in plant rules would apply to the WAEA repre-
sented employees working at Novi. He further indicated that
the attendance provisions and shop rules of the WAEA contract
would no longer be applicable to the WAEA represented em-
ployees working at Novi. He further stated that if the WAEA
represented employees could not accept the new Novi rules
they could take a layoff. He also added that there were open-
ings in Alabama and asked the WAEA representatives whether
they would like him to transfer WAEA represented employees
there and give them 2 weeks to report and if they did not show
up, they would be considered to have voluntarily quit.
Since I found that the Respondent unilaterally applied the
Novi rules to WAEA represented employees in violation of
Section 8(a)(5) and (1), Durocher’s statements indicated that if
employees could not accept unlawfully implemented rules they
could take a layoff. He added that he could also transfer them to
Alabama. I find that these statements restrained and coerced
employees and thus violated Section 8(a)(1) of the Act.
The Respondent contends that since the WAEA contract
gives employees the right to accept a layoff rather than being
temporarily transferred to another of the Respondent’s facili-
ties, Durocher’s statements truthfully advised employees of
their rights under the contract and therefore was not a threat;
rather it is protected by Section 8(c) of the Act. I do not agree
with this position as Section 8(c) explicitly provides that an
expression of an opinion by an employer must be unaccompa-
nied by any threats or promises of benefits in order to be privi-
leged. In the instant case the proposition advanced by Durocher
was either accept working under unlawfully implemented rules
or take a layoff or be transferred. I find that this statement
threatened employees with either a layoff or transfer if they
continue to exercise their Section 7 rights to protest an unlawful
unilateral change instituted by the Respondent. Accordingly,
the statements are not protected by Section 8(c).
The Allegation that the Respondent is Maintaining a Facially
Invalid Rule
In his brief, the Acting General Counsel seeks a finding that
the Respondent's maintenance of the following rule at its Novi
facility violates Section 8 (a) (1) of the Act:
Threatening, intimidating, coercing, or inappropriately dis-
rupting the work of employees or supervision at any time. (Jt.
Exh. 3, rule 21)
The Acting General Counsel claims that the rule is facially
invalid and seeks an order requiring it to be rescinded. The
complaint, however, does not specifically contain an allegation
that the above noted rule is facially invalid. In so far as relevant
to this issue, paragraph 14 of the complaint alleges that the
Respondent failed to continue in effect the terms and conditions
of the WAEA agreement by handing out new work rules to
WAEA represented employees which altered provisions of that
agreement regarding certain subjects including "(f) penalties for
threatening, intimidating, coercing or inappropriately disrupting
the work of employees or supervision at any time.” The com-
plaint further alleges that the conduct alleged in paragraph 14
violated Section 8(a)(5)(1) and Section 8(d) of the Act
The complaint allegation, in my view, is insufficient to put
the Respondent on notice that the Acting General Counsel was
challenging the facial validity of the rule quoted above. The
complaint only alleges that the Respondent violated the Act by
unilaterally changing the penalties for violation of that rule. At
the hearing in this case, I cautioned counsel for the Acting
General Counsel that I would not make a finding that certain
statements made by the Respondent supervisor and agent
Marco Andriano violated Section 8(a)(1) of the Act unless the
complaint was amended to allege that statements to be a viola-
tion of the Act. I indicated at that time, the Respondent has a
right to know specifically what the alleged unfair labor practic-
es are. The same rationale applies here. If the Acting General
Counsel wish to litigate this issue, at minimum, the complaint
should have been amended at the hearing to specifically allege
that the rule was facially invalid in violation of Section 8(a)(1)
of the Act. No such complaint amendment was made, however.
Without a specific complaint allegation that the rule quoted
above was facially invalid, in my view, the Respondent was not
accorded sufficient due process to defend itself on this issue
and I will therefore not consider this issue on the merits.
CONCLUSIONS OF LAW
1. The Wisne Automation Employees Association (WAEA)
is, and, an at all material time was, the exclusive representative
for the employees in the following appropriate unit:
All full-time and regular part-time production and mainte-
nance employees, including inspectors, employed by the Re-
spondent at its facilities located at 42445 West 10 Mile Road,
Novi, Michigan, but excluding all office clerical employees,
guards and supervisors as defined in the Act.
2. By failing to bargain over the effects of the temporary
closure of its Wisne Automation facility with the WAEA, the
Respondent violated Section 8(a)(5) and (1) of the Act.
3. By failing to bargain with the WAEA regarding the appli-
cation of the Novi and Royal Oak rules to WAEA represented
employees temporarily working in those facilities, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
4. By unilaterally changing certain terms of its 2011-2015
collective bargaining agreement with the WAEA, the Respond-
ent violated Section 8(a)(5) and (1) and Section 8(d) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
5. The Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by:
(a) Informing employees represented by the WAEA that
their Union no longer existed at the Novi facility.
(b) Interrogating employees about their union and protected
concerted activities.
(c) Directing employees not to discuss issues involving un-
ion and protected concerted activity with other employees.
(d) Threatening employees with layoff and transfer if they do
not acquiesce in unilaterally implemented work rules.
6. The above offer labor practices affect commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
7. The Respondent has not otherwise violated the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
As I indicated above, with respect to the Respondent’s viola-
tion of Section 8(a)(5) and (1) of the Act by failing to bargain
over the effects of the temporary closure of the Wisne facility,
under the circumstances of this case, I shall limit the remedial
relief to ordering that the Respondent cease and desist its un-
lawful conduct and post an appropriate notice.
With respect to the failure of the Respondent to bargain with
the WAEA regarding the application of the Novi and Royal
Oak rules to the WAEA represented employees temporarily
assigned to those facilities, upon request of the WAEA, I shall
order that the Respondent rescind the application of those rules,
and any discipline that resulted from the application of those
rules,12 to WAEA represented employees. In addition, I shall
order the Respondent to apply the terms of the current contract
between it and the WAEA, including the attendance provisions
and shop rules, to WAEA employees temporarily assigned to
the Novi and Royal Oak facilities. I shall also order the Re-
spondent to restore the pre-January 2012 method of assigning
overtime to, and the method of determining the order of layoff
of, WAEA represented employees temporarily assigned to the
Novi and Royal Oak facilities. I shall also order the Respondent
to give notice and, on request, bargain with the WAEA regard-
ing the application of the Novi and Royal Oak rules to employ-
ees represented by the WAEA who are temporarily assigned to
those facilities.
I shall order the Respondent to make WAEA represented
employees whole for any loss of earnings and other benefits
suffered as a result of the Respondent’s unilateral application of
the Novi and Royal Oak rules to them. Any amounts of money
necessary to make employees whole under the terms of this
remedy shall be computed in accordance with Ogle Protection
Service, 183 NLRB 682 (1970); with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987); compounded

12 The record indicates that employee Hermon Gray, who was ulti-
mately discharged for his attendance record, apparently would have
been eligible for discharge under the attendance policy set forth in the
WAEA agreement. (Tr. 338; R.Exh. 7.) However, I will leave the final
resolution of this issue to the compliance phase of this proceeding.
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
With respect to the notice posting portion of the remedy, the
record clearly establishes that from time to time WAEA repre-
sent employees have been temporarily assigned to work at the
Novi and Royal Oak facilities. Some of the unfair labor practic-
es I have found occurred at those facilities while WAEA repre-
sented employees were working there. The Board’s policy is to
have notices posted in the manner that will best inform affected
employees about the outcome of this proceeding and the nature
of their rights under the Act. Under these circumstances, I find
that it would best effectuate the policies of the Act to require
that the notice be posted not only at the Wisne Automation
facility but also at the Novi and Royal Oak facilities. Technol-
ogy Service Solutions, 334 NLRB 116 (2001).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, Comau, Inc., its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain over the effects of the temporary clo-
sure of the Wisne Automation facility with the WAEA.
(b) Failing to bargain regarding the application of the Novi
and Royal Oak rules with the WAEA regarding WAEA repre-
sented employees temporarily assigned to the Novi and Royal
Oak facilities.
(c)) Unilaterally changing certain terms of its 2011–2015
collective bargaining Agreement with the WAEA without the
WAEA’s consent.
(d) Informing employees represented by the WAEA that
their Union no longer existed at the Novi facility.
(e) Interrogating employees about their union and protected
concerted activities.
(f) Directing employees to not discuss issues involving union
and protected concerted activity with other employees.
(g) Threatening employees with layoffs and transfers if they
did not acquiesce in unilaterally imposed work rules.
(h) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the Novi and Royal Oak rules as applied to
WAEA represented employees temporarily assigned to the
Novi and Royal Oak facilities.
(b) Rescind any discipline imposed pursuant to the Novi and
Royal Oak rules upon WAEA represented employees who were
temporarily assigned to the Novi and Royal Oak facilities.
(c) Give notice and an opportunity to bargain to the WAEA
regarding the application the rules at the Novi and Royal Oak

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
COMAU, INC. 29
facilities to employees represented by the WAEA. The appro-
priate unit is:
All full-time and regular part-time production and mainte-
nance employees, including inspectors, employed by the Re-
spondent at its facilities located at 42445 West 10 Mile Road,
Novi, Michigan, but excluding office clericals, guards and su-
pervisors as defined in the Act.
(d) Make whole employees represented by the WAEA for
any loss of earnings and other benefits suffered as a result of
our unilateral application of the Novi and Royal Oak rules to
them in the manner set forth in the remedy section of this deci-
sion.
(e) Within 14 days from the date of the Board’s order, re-
move from its files any references to unlawful discipline im-
posed pursuant to the Novi and Royal Oak rules upon WAEA
represented employees, and within 3 days thereafter notify the
employees in writing that this is been done and that the disci-
pline will not be used against them in any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its
Wisne Automation and Novi Industries facilities in Novi, Mich-
igan, and its Royal Oak facility in Royal Oak Michigan, copies
of the attached notice marked “Appendix.”14 Copies of the
notice, on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facilities involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since December 1, 2011.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C., December 26, 2012.
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail to bargain over the effects of the temporary
closure of the Wisne Automation facility with the Wisne Au-
tomation Employees Association (WAEA).
WE WILL NOT fail to bargain regarding the application of the
Novi and Royal Oak rules with the WAEA regarding WAEA
represented employees temporarily assigned to the Novi and
Royal Oak facilities.
WE WILL NOT unilaterally change the terms of our 2011–2015
collective-bargaining agreement with the WAEA without the
WAEA’s consent.
WE WILL NOT inform employees represented by the WAEA
that their Union no longer exists at the Novi facility.
WE WILL NOT interrogate employees about their union and
protected concerted activities.
WE WILL NOT direct employees to not discuss issues involv-
ing union and protected concerted activity with other employ-
ees.
WE WILL NOT threaten employees with layoff and transfers if
they do not acquiesce in unilaterally imposed work rules
WE WILL NOT in any like or related manner, interfere with,
restrain or coerce employees in the exercise of the rights guar-
anteed to them by Section 7 of the Act.
WE WILL rescind the Novi and Royal Oak rules as applied to
WAEA represented employees temporarily assigned to the
Novi and Royal Oak facilities.
WE WILL rescind any discipline imposed pursuant to the
Novi and Royal Oak rules upon W AEA represented employees
who were temporarily transferred to the Novi and Royal Oak
facilities.
WE WILL give notice and an opportunity to bargain to the
WAEA regarding the application of the rules at the Novi and
Royal Oak facilities to employees represented by the WAEA.
The appropriate unit is:
All full-time and regular part-time production and mainte-
nance employees, including inspectors, employed by the Em-
ployer at our facilities located at 42445 West 10 Mile Road,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
Novi, Michigan, but excluding office clericals, guards and su-
pervisors as defined in the Act
WE WILL make whole employees represented by the WAEA
for any loss of earnings and other benefits suffered as a result
of our unilateral application of the Novi and Royal Oak rules to
them, with interest.
WE WILL remove from our files any references to unlawful
discipline imposed, pursuant to the Novi and Royal Oak rules,
upon WAEA represented employees, and notify the employees
in writing that this is been done and that the discipline will not
be used against them in any way.
COMAU, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07-CA-073073 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.