J & C Towing Co

National Labor Relations Board - Board Decisions

Apr 22, 1992

307 N.L.R.B. 198 (N.L.R.B. 1992)

198
307 NLRB No. 27
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall substitute our Order and notice for those of the judge
in order to expand the scope of the expunction order to cover anyone
who has been disciplined pursuant to the unlawfully imposed dis-
ciplinary system, to require the rescission of this system, to correct
the judge’s omission of any reference to the Respondents’ creation
of the impression of surveillance of employee union activities, and
to delete certain recommended cease-and-desist provisions, as a re-
sult, infra, of our reversal of one of his findings and our finding
merit to the Respondents’ exception to being precluded from making
future bargaining offers limited to the status quo.
2 This modification of the Order, however, should not be con-
strued as a license to the Respondents to repeat making an offer of
the status quo in future negotiations with the Union. Any such offer
must be made in good faith and should be capable of being so sub-
stantiated. In this connection, we agree with the judge that the Re-
spondents’ past offers of the status quo were part and parcel of its
bad-faith bargaining conduct.
3 As noted in fn. 1 of the judge’s decision, the General Counsel
did not file a brief with the judge.
4 See also Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992).
J & C Towing Co. and Belmont Marines Services,
Inc. and United Steelworkers of America,
AFL–CIO–CLC. Cases 6–CA–22336, 6–CA–
22359, 6–CA–22423, 6–CA–22746, and 6–CA–
23478
April 22, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 9, 1991, Administrative Law Judge
Walter H. Maloney issued the attached decision. The
Respondents and the General Counsel filed exceptions
and supporting briefs, and the General Counsel filed an
answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified and to adopt the recommended
Order as modified and set out in full below.1
1. The judge found inter alia, that the Respondents
violated Section 8(a)(5) and (1) by stalling and foot-
dragging about agreeing to bargain face to face with
the Union following its certification as bargaining rep-
resentative, and by offering only the status quo for
every term and condition of employment at and after
the one bargaining session held on May 23, 1990.
The Respondents except to the judge’s finding of an
8(a)(5) and (1) violation based on their refusal to bar-
gain ‘‘face to face.’’ They argue that owner John L.
Johnson’s decision not to participate personally in bar-
gaining negotiations on May 23 was not unlawful be-
cause the Board recognizes the propriety of conducting
negotiations through legal counsel. In adopting the
judge’s finding, we rely in particular on the evidence
that establishes the Respondents’ dilatory bargaining
tactics, their holding of one ‘‘sham’’ bargaining ses-
sion, and the Respondents’ legal counsel’s failure
thereafter to engage in ‘‘face to face’’ negotiations.
We place no reliance, however, on Johnson’s lack of
personal participation in bargaining.
The Respondents further except to the portion of the
judge’s recommended Order requiring them to cease
and desist from ‘‘offering only the status quo’’ because
no party can be required to agree to any particular sub-
stantive bargaining provision. H. K. Porter Co., 397
U.S. 99 (1970). We shall delete the quoted language
from our Order because, as the Respondents suggest,
it may run afoul of the H. K. Porter holding.2
2. The judge found an 8(a)(1) threat based on Super-
visor Becker’s statement to employee Larry M. Hug-
gins that Johnson did not want union representatives
coming onto his property and would have them ar-
rested as trespassers if they did so. The Respondents
argue in their exceptions that the alleged threat to ar-
rest is neither alleged in the complaint nor does it con-
stitute an unlawful threat. Rather, the Respondents
contend that Becker’s isolated remark is merely an
equivocal assertion of the Respondents’ right to ex-
clude nonemployees from trespassing on company
property.
We find, in agreement with the Respondents, that
the evidence in this case does not warrant finding this
violation, which the General Counsel never alleged as
unlawful either in the complaint or at the hearing.3 On
this record, Becker’s general reference to Johnson’s in-
tention to prevent trespassing on the Respondents’
property by apparently nonemployee union representa-
tives does not rise to the level of an unlawful threat4
We shall therefore reverse the judge’s 8(a)(1) finding.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 6.
‘‘6. By the acts and conduct set forth in Conclusion
of Law 5; by creating the impression of company sur-
veillance of employee union activities; by coercively
interrogating employees concerning their union sym-
pathies and activities and the union sympathies and ac-
tivities of other employees; by soliciting grievances
from employees during a representation election cam-
paign with a view towards adjusting those grievances;
by promising employees benefits if they would reject
the Union; and by threatening to go out of business or
to close the plant if employees selected the Union as
their bargaining representative, the Respondents vio-
lated Section 8(a)(1) of the Act.’’
ORDER
The National Labor Relations Board orders that the
Respondents, J & C Towing Co., Inc. and Belmont
199J & C TOWING CO.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Marine Services, Inc., Wheeling, West Virginia, and
Bellaire, Ohio, their officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Creating the impression of company surveillance
of employee union activities.
(b) Coercively interrogating employees concerning
their union activities and sympathies and the union
sympathies and activities of other employees.
(c) Soliciting grievances from employees during a
representation campaign with a view toward adjusting
their grievances.
(d) Promising employees benefits if they reject the
Union.
(e) Threatening to go out of business or to close the
plant if employees select a union as their bargaining
representative.
(f) Refusing to bargain in good faith with the United
Steelworkers of America, AFL–CIO–CLC as the ex-
clusive collective-bargaining representative of the pro-
duction and maintenance employees employed by the
Respondents at their Wheeling, West Virginia, and
Bellaire, Ohio facilities.
(g) Unilaterally adopting or implementing drug and
alcohol policies, attendance and call-in rules, a system
of written warnings, a progressive disciplinary system,
or any other term or condition of employment.
(h) Failing or refusing to furnish the Union in a
timely fashion with wage data relating to bargaining
unit employees or with any other requested informa-
tion which is relevant to the Union’s duty as the exclu-
sive representative of bargaining unit employees.
(i) Stalling, footdragging, or giving the Union a run-
around to avoid setting a date for collective-bargaining
negotiations.
(j) Refusing to meet face to face with the Union for
purposes of collective-bargaining negotiations.
(k) Refusing to make meaningful counterproposals
to union bargaining proposals.
(l) Refusing to bargain on any subject other than
wages.
(m) Disciplining employees who are members of the
Union’s in-plant negotiating committee for missing
work in order to attend collective-bargaining sessions.
(n) By any other means or in any manner interfering
with, restraining, or coercing employees in the exercise
of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and bargain collectively in good faith
with the United Steelworkers of America, AFL–CIO–
CLC as the exclusive collective-bargaining representa-
tive of the production and maintenance employees em-
ployed by the Respondents at their Bellaire, Ohio, and
Wheeling, West Virginia facilities and, if agreement is
reached, embody the same in a written, signed docu-
ment.
(b) Rescind the unilaterally adopted drug and alco-
hol policy, attendance and call-in rules, system of writ-
ten warnings, and progressive disciplinary system.
(c) Furnish the Union in a timely fashion with wage
data relating to bargaining unit employees or, on re-
quest, with any other information which is relevant to
the Union’s duty as the exclusive representative of bar-
gaining unit employees.
(d) Remove from the personnel records of any pro-
duction and maintenance employee, including Kevin
Hoge and Kenneth R. Huggins, any disciplinary warn-
ings which were issued pursuant to a written policy of
progressive warnings which was adopted by the Re-
spondents in violation of the Act and notify them in
writing that this has been done and that such warnings
will not be the basis for future personnel actions.
(e) Post at the Respondents’ Wheeling, West Vir-
ginia, and Bellaire, Ohio places of business copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 6, after being signed by the Respondents’
authorized representative, shall be posted by the Re-
spondents immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondents to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The principal docket entries in this case are as follows: charge
filed herein by the United Steelworkers of America (the Union)
against the Respondents in Case 6–CA–22336 on December 21,
1989, and amended on April 18, 1990; charge filed herein by the
Union against the Respondents in Case 6–CA–22359, on January 5,
1990, and amended on April 17, 1990; charge filed herein by the
Union against the Respondents in Case 6–CA–22397, on January 25,
1990, and a related charge was filed on January 26, 1990; charge
filed herein by the Union against the Respondents in Case 6–CA–
22423, on February 1, 1990; charge filed herein by the Union
against the Respondents in Case 6–CA–22746, on June 1, 1990; con-
solidated complaint issued by the Regional Director for Region 6,
in the above-entitled cases which was the subject of an all-party in-
formal settlement approved by the Regional Director for Region 6,
on December 19, 1990; charge filed herein by the Union against the
Respondents in Case 6–CA–23478, on March 22, 1991, and amend-
ed on April 26, 1991; complaint issued by the Regional Director for
Region 6, against the Respondents on April 30, 1991, in Case 6–
CA–23478; order setting aside and vacating the settlement agreement
which was approved on December 19, 1990, and consolidation of
the complaints in those cases with the complaint in Case 6–CA–
23478, issued by the Regional Director for Region 6, on May 16,
1991; Respondents’ answer filed on May 30, 1991; order severing
cases and dismissing complaint in Cases 6–CA–22397 (2 and 3)
issued by the Regional Director for Region 6, on July 22, 1991;
amended charges filed in pending cases on July 17, 1991; and
amended consolidated complaint issued by the Regional Director for
Region 6, in those cases on July 26, 1991; Respondents’ answer
filed on August 2, 1991; hearing held in Wheeling, West Virginia,
on August 14, 1991; briefs waived by the General Counsel and the
Respondents.
2 The General Counsel alleges, and the Respondents admit, that
both are a single employer within the meaning of the Act. It is fur-
ther alleged and admitted that J & C Towing, Inc., and Belmont Ma-
rine Services, Inc. are engaged in the towing and barge repair busi-
ness at Bellaire, Ohio, and Wheeling, West Virginia, and that, during
the course and conduct of these businesses, they annually performed
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT create the impression of company sur-
veillance of, or coercively interrogate employees con-
cerning, their union activities and sympathies and the
union activities and sympathies of other employees.
WE WILL NOT solicit grievances from employees
during a representation campaign with a view toward
adjusting those grievances.
WE WILL NOT promise benefits to employees if they
will reject the Union.
WE WILL NOT threaten to go out of business or to
close the plant if employees select a union as their bar-
gaining representative.
WE WILL NOT refuse to bargain with the United
Steelworkers of America, AFL–CIO–CLC as the ex-
clusive representative of the production and mainte-
nance employees employed at our Bellaire, Ohio, and
Wheeling, West Virginia facilities.
WE WILL NOT unilaterally adopt or implement drug
and alcohol policies, attendance and call-in rules, a
system of written warnings, a progressive disciplinary
system, or any other terms or conditions of employ-
ment.
WE WILL NOT fail or refuse to furnish the Union in
a timely fashion with wage data relating to bargaining
unit employees or with any other requested informa-
tion that is relevant and necessary to the Union’s duty
as exclusive representative of bargaining unit employ-
ees.
WE WILL NOT stall, footdrag, or give the Union a
runaround to avoid setting a date for collective-bar-
gaining negotiations.
WE WILL NOT refuse to meet face to face with the
Union for purposes of collective-bargaining negotia-
tions.
WE WILL NOT refuse to make meaningful counter-
proposals to union bargaining proposals.
WE WILL NOT refuse to bargain on any subject other
than wages.
WE WILL NOT discipline employees who are mem-
bers of the Union’s in-plant negotiating committee for
missing work in order to attend collective-bargaining
sessions.
WE WILL NOT by any other means or in any other
manner interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL recognize and bargain collectively in good
faith with the Union and, if agreement is reached, em-
body the same in a written, signed document.
WE WILL rescind the unilaterally adopted drug and
alcohol policies, attendance and call-in rules, system of
written warnings, progressive disciplinary system, or
any other terms or conditions of employment.
WE WILL remove from the personnel records of any
production and maintenance employee, including
Kevin Hoge and Kenneth R. Huggins, any disciplinary
warnings which were issued pursuant to a written pol-
icy of progressive warnings which we adopted in vio-
lation of the Act and WE WILL notify them in writing
that this has been done and that such warnings will not
form the basis for future personnel actions.
J & C TOWING CO., INC. AND BELMONT
MARINE SERVICES, INC.
Dalia Belinkoff, Esq., for the General Counsel.
James L. Loll, Esq., of Beaver, Pennsylvania, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
FINDINGS OF FACT
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Wheeling, West Vir-
ginia, upon a consolidated unfair labor practice complaint,1
issued by the Regional Director of the Board’s Region 6,
which alleges that Respondents J & C Towing Co., Inc., and
its wholly owned subsidiary, Belmont Marine Services, Inc.,2
201J & C TOWING CO.
services valued in excess of $50,000 in interstate commerce. Accord-
ingly, they were an employer engaged in commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
3 The corrections in the transcript have been noted and corrected.
violated Section 8(a)(1) and (5) of the Act. More particularly,
the pending consolidated complaint alleges that these joint
employers coercively interrogated employees concerning
their union activities and the union activities of others,
threatened employees with plant closing if they supported the
Union, solicited grievances from employees with a view to-
ward adjusting them, created the impression among employ-
ees that their union activities were a matter of company sur-
veillance, promised employees increased wages and benefits
if they would reject the Union, and, following the certifi-
cation of the Union as the exclusive collective-bargaining
representative of the Respondents’ employees, unilaterally
implemented a progressive disciplinary policy and system of
written reprimands, unilaterally implemented a drug and al-
cohol policy containing mandatory discharge provisions, re-
fused to meet face to face with the Union for the purpose
of collective bargaining, made no offer during collective bar-
gaining other than to continue the status quo, discontinued
collective bargaining with the Respondents, and refused to
supply the Union with requested information pertaining to
the wage scale of bargaining unit employees.
The original consolidated complaint alleged the discrimi-
natory discharge of several employees. A settlement agree-
ment approved on December 21, 1990, remedied these viola-
tions by providing for reinstatement of discharged employees
and the payment of various amounts of backpay. Except for
that portion, the Regional Director set aside the settlement
agreement because of alleged postsettlement violations of the
Act and because the Respondents assertedly refused to com-
ply with their commitment to post the settlement agreement
notice at its two facilities for a period of 60 days. The Re-
spondents entered a formal denial of the allegations of unfair
labor practices on their part but did not present any evidence
at the hearing to rebut the General Counsel’s case. Upon
these contentions, the issues herein were drawn.3
I. THE UNFAIR LABOR PRACTICES ALLEGED
Respondent J & C Towing, Inc. operates a facility on the
east bank of the Ohio River just south of Wheeling, West
Virginia, where it cleans and repairs coal barges and con-
nects and disconnects barges from tow boats. Respondent
Belmont Marine Services, Inc. performs the same functions
at a facility on the west bank of the Ohio River in Bellaire,
Ohio, about 3 miles downstream from the Wheeling oper-
ation. Both companies are owned and controlled by John L.
Johnson, who bought and consolidated them in 1986. John-
son told employees when he took control of the Company
that he would fire them if they talked union. Prior to that
time, the Bellaire operation was owned and operated by Bel-
laire Marine Service. Its employees were covered by a series
of collective-bargaining agreements executed by the Charg-
ing Party in this case. However, the most recent of those
agreements ceased to have any meaning or effect when Bel-
laire Marine Service went out of business. The Respondents
admit that they are a single employer. The bargaining unit,
composed of pilots, deckhands, crane operators, oilers, weld-
ers, and laborers at both facilities, has between 30 and 40
employees. Approximately seven of them are licensed by the
Coast Guard to operate tugboats on and along the river.
On November 13, 1989, Rick Shaw, a pilot employed by
the Respondent, phoned the Steelworkers Hall at Wheeling
and spoke with Paul W. Tucker, an organizer for District 23
of the United Steelworkers of America. He inquired about
the possibility of organizing the Respondents’ business. In
the ensuing month, the two had several conversations which
resulted in the holding of a meeting on Saturday, December
16, 1989, at the home of Kevin Hoge, a tugboat captain and
long-time employee of J & C Towing. Approximately 15
employees from both operations attended the meeting at
Hoge’s home in Wheeling. They signed authorization cards,
an attendance roster, and a list of volunteers to serve on the
union organizing committee.
The following Monday, Tucker wrote a certified letter to
Johnson, setting forth the names of 15 employees and de-
scribing them as representing the United Steelworkers of
America as steelworker in-plant committee members. On the
same day, Ron Burris, one of the Respondents’ admitted su-
pervisors, spoke to crane operator Edward A. Thomas in the
office of the Wheeling plant and asked him if he had heard
anything about the Union. (Thomas’ name was included on
Tucker’s letter.) Burris told Thomas that he had heard that
Hoge had held a meeting and that 15 or 16 employees were
there. Thomas replied that he was not going to lie to Burris
and admitted that he was present. Burris then asked Thomas
what the employees wanted and what the issues were. Thom-
as replied that there were no issues, telling Burris that the
men had attended the meeting to learn about what was going
on.
John Coulter is a welder at the Bellaire facility. In mid-
December 1989, while he was doing some paperwork in the
plant office, Chuck Appleby, the yard manager and an admit-
ted supervisor, asked him if he knew anything about the
Union. (Like Thomas, Coulter’s name appeared on Tucker’s
December 18 letter.) Coulter did not reply directly but told
Appleby that he had asked three different people and had re-
ceived three different answers as to what his hourly rate was.
Apparently, the computations on his weekly paystub worked
out to different amounts each week. Coulter told Appleby
that he never did find out the answer to his question.
Appleby then asked Coulter if he knew who was involved
with the Union. Coulter replied that he did not know.
A week or two later, Paul Stonebreaker, a repairman at the
Wheeling plant, was driving to a tugboat with admitted Su-
pervisor Robert Becker. They were delivering groceries to
the boat. Stonebreaker asked Becker what Johnson would do
if the employees pursued the union organizing campaign.
Becker replied that ‘‘John’’ would either close the place or
sell it and operate it, presumably, through another corpora-
tion. A week or two thereafter, Johnson and Becker had oc-
casion to speak with Stonebreaker and crane operator Greg
Richardson in the garage at the Wheeling plant during a
lunchbreak. Johnson asked Richardson what it would take to
get the employees to drop the Union. Richardson replied,
‘‘Paid holidays, paid vacation, and a pension.’’ Johnson then
observed that there was nothing wrong with those requests
and stated that he could meet those needs. He suggested that
a pension could be paid for by deducting from the paychecks
of each employee the amount they would have to pay in
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 John’s Towing is a third company owned by Johnson but it is
not involved in these proceedings.
union dues and applying the money to an IRA. He went on
to state that he would not operate the place with a union and
would close it. Stonebreaker spoke up and said that, as he
was getting on toward middle age, he would like to have a
pension.
Former employee Larry M. Huggins attended the meeting
at Hoge’s house. His name was on the list of employees in
Tucker’s letter. Early in January 1990, while in Becker’s of-
fice at the Wheeling plant, Becker asked him what he wanted
out of the Union. Huggins replied that it seemed like every-
thing at the Company was for Johnson and nothing was for
the employees. Becker went on to say that Johnson did not
want union representatives on his property and would have
them arrested as trespassers. He also told Huggins that, if the
employees brought the Union into the Company, Johnson
would sell the business or close it down. Two days later,
Johnson spoke with Huggins and employee Halbert Baker in
the lunchroom. He asked them, ‘‘What would it take not to
have a union? ‘‘ They replied that they wanted paid holidays,
paid vacations, and pay raises. Johnson indicated that he
would agree to five paid holidays and a week’s paid vaca-
tion. He told Baker and Huggins that he would have his ac-
countants calculate what it would cost each employee each
month in union dues, deduct the sum, and put it in a pension
fund. Johnson also said he had spoken about this question
with Richardson and some other employees. Huggins and
Baker replied that it sounded good to them and they returned
to work. As they were leaving, Johnson asked these employ-
ees if they were for him or against him. Both replied that
they were for him.
On another occasion, Baker spoke with Becker concerning
the Union aboard a tugboat called the ‘‘Tradewinds.’’ Em-
ployees Robert Sellers and Wayne Abercrombie were
present. They asked Becker what Johnson thought about the
Union. Becker replied that Johnson had not said very much
but insisted, ‘‘I can tell you one thing. Belmont Marine
won’t be with us too long.
About 2 weeks after he held the organizational meeting at
his house, Hoge was riding in a pickup truck with Becker.
Becker asked him if there was any way the Company could
work a deal to prevent the Union from coming into the plant.
When Hoge expressed the opinion that this would not be
possible, Becker wished him good luck, saying that Johnson
would close the place down.
The Union filed a representation petition that brought
about an election which took place on February 12, 1990.
The Union won by a margin of about 2 to 1 and was cer-
tified on February 23. On February 20, Johnson posted the
following notice:
TO: ALL EMPLOYEES OF JOHN’S TOWING, J & C TOW-
ING AND BELMONT MARINE SERVICE4
It is Company policy that there will not be any drugs
or alcoholic beverages permitted on any boats or com-
pany property.
Also, anyone reporting for work under the influence
will not be permitted on company property or boats.
Anyone not abiding by these rules will be dis-
charged.
The record is clear that, before this date, the Company had
no such policy as the one announced in the above-cited no-
tice. The Respondents pointed out that, in December 1989,
the Coast Guard promulgated a regulation prohibiting the
manning of tugboats by licensed personnel who were under
the influence of drugs or alcohol. However, this regulation
did not require the discharge of any offender nor did it apply
to nonlicensed personnel.
The Company also instituted a progressive disciplinary
policy relating to the question of failing to ‘‘report off’’ for
work, i.e., the failure of an employee to notify the Company
if he did not intend to report for work on a particular day.
It is undisputed in this record that, before the election, em-
ployees did, from time to time, miss work without notifying
the Company of their intended absence and that no dis-
cipline, either verbal or written, was imposed. Moreover, the
Respondents did not have in place any written disciplinary
policies nor had they adopted any system of progressive dis-
cipline, i.e., the administration of harsher penalties for re-
peated offenses. The Respondents prepared and used a form
for absenteeism which read:
This is a written reprimand concerning not reporting
off work on [fill in date].
J & C Towing Service, Inc., is a service company
that is expected, by its customers, to be efficient and
reliable to their needs. J & C Towing depends on you,
the employee, to be dependable, responsible, and per-
form your duties professionally.
You have been verbally informed of the following
criteria:
1. Absent—inform your supervisor the day before or
as soon as—practical before the start of your next
scheduled work day.
2. Failing to report off work is inexcusable.
If you receive four written reprimands you will be ter-
minated, without further notice, from your employment
with J & C Towing.
In the next few months, several written reprimands were
given to employees either for failing to report off or for other
asserted infractions. On March 27, 1990, Hoge received a
letter of reprimand from Becker for insubordination and dis-
orderly conduct. On May 25, he received another warning
from Becker for failing to report off on May 23. That letter
recited that Hoge had already received two other written
warnings (it counted a single warning for insubordination
and disorderly conduct as two offenses), and told Hoge that
he would be terminated for any further incidents. May 23
was the date of the first and only negotiating session between
these parties. Hoge had informed the dispatcher at the Com-
pany on the previous day that he would be absent on May
23 to attend this meeting. On May 25, 1990, Kenneth R.
‘‘Dick’’ Huggins, the brother of Larry Huggins, received a
warning for failure to report off on May 23 and received a
second letter on the same date for failing to report off on
May 24. Like Hoge, Huggins was in attendance at the nego-
tiations of May 23 as a member of the Union’s negotiating
committee.
While these incidents were occurring at the plant, the
Union was making plans to inaugurate collective bargaining
on the basis of its newly won certification. Don Leamon, a
203J & C TOWING CO.
staff representative of the Charging Party from Steubenville,
Ohio, was assigned to assist the members of the Respond-
ents’ bargaining unit. He phoned Johnson two or three times
in Wheeling but received no reply. He found in the record
in the representation proceeding that the Respondents were
represented by James L. Loll so he wrote Loll a letter on
April 27, 1990, asking to set up a meeting for bargaining.
A meeting was set for 10 a.m. on May 23 at the Steel-
workers hall in Wheeling.
Johnson and Loll appeared at the meeting. Loll told
Lemmon that he did not think it would be a good idea for
Johnson to be personally involved in any discussions because
verbal hostilities might erupt so, at his suggestion and with
the reluctant concurrence of the Union, Johnson remained in
a side room. Loll conducted discussions on the part of the
Company and took recesses on a couple of occasions to con-
sult with Johnson and to report back Johnson’s decisions.
The Union was represented by Lemmon and an in-plant com-
mittee composed of Hoge, Shaw, and ‘‘Dick’’ Huggins.
Lemmon brought with him a copy of the contract which
the Union had concluded some years before with Bellaire
Marine Service, the predecessor of Belmont, and gave it to
Loll. He told Loll that the old Bellaire contract was not
being offered as a set of bargaining demands but merely to
serve as a format for negotiations, as it contained all the ele-
ments which go to make up a conventional collective-bar-
gaining agreement. The parties went through the document
hurriedly.
Loll then asked the Union for a wage proposal. Lemmon
said that they had none to present at that time, observing that
in normal collective bargaining, the parties proceed to dis-
cuss noneconomic matters first and leave wage rates to later
sessions. Loll persisted. Lemmon said that it would be dif-
ficult to present such a proposal at that time since the Union
did not even know what the existing rates were. They dis-
cussed the question of vacations and holidays briefly but Loll
came back to the question of wages. Lemmon said that he
could give Loll a ballpark idea of what the Union was inter-
ested in but insisted that it would be unfair to hold them to
it since the Union first needed to know what the existing
rates were.
At Loll’s insistence, union negotiators caucused privately
and returned with a set of wage proposals which they pre-
sented verbally. Loll then excused himself and went to speak
with Johnson.
Loll returned after a 10- or 15-minute conference with his
client and told the union representatives that the Company
would offer only the ‘‘status quo.’’ Lemmon replied that the
status quo ‘‘wouldn’t fly.’’ He asked Loll for a counter-
proposal but Loll had none. Lemmon then asked Loll if there
was anything else in the old Bellaire agreement that the par-
ties could talk about and whether there were any non-
economic matters contained therein to which the Company
had no objection. Loll said that he was not interested in talk-
ing about anything else and that, when he said ‘‘ status
quo,’’ this phrase applied to everything the Company was
currently doing. As the meeting was breaking up, Lemmon
asked Loll about scheduling another meeting. Loll replied
that he would get back to Lemmon before the end of the
day. Lemmon then asked Loll to supply him with a copy of
the current wage scale of unit employees.
Loll and Lemmon spoke by telephone in a day or so. Loll
repeated that the Company was only offering the status quo
and that it did not intend to meet any further. Lemmon ob-
jected, stating that collective bargaining could not work like
that and accusing the Company of failing to comply with the
law. Loll’s only reply to the accusation was that the Com-
pany was offering the status quo and was not interested in
any further meetings. On May 25, Lemmon wrote Loll a let-
ter reciting what had occurred, repeating his accusation that
the Respondents were violating the law, and again asking for
a copy of the current bargaining unit wage scale. He asked
Johnson and Loll to reconsider and to set up another meeting
for negotiations. There were no further bargaining sessions.
The original set of five charges in this consolidated case,
including the charge accusing the Respondents of violating
Section 8(a)(3) of the Act by discharging several employees
for union activities, resulted in a consolidated complaint
which was scheduled for hearing on December 19, 1990. Be-
fore the hearing opened, the parties entered into a settlement
agreement of the 8(a)(1), (3), and (5) allegations. This agree-
ment, in evidence in this case as General Counsel’s Exhibit
19, required many things of the Respondents. As a matter of
course, it required the Respondents push to post the notice
which embodied the substance of the agreement in all places
where notices to employees are customarily posted and to
maintain the posting for 60 consecutive days. It required the
Respondents to offer reinstatement to nine named
discriminatees and to pay them various amounts of backpay
set forth after their names. It also required the Respondents
to cease and desist from various violations of Section 8(a)(1)
of the Act—promising benefits, interrogating employees,
threatening to close the plant, and creating the impression
that union activities were the subject of company surveil-
lance. The agreement required the Respondents to bargain
collectively in good faith with the Union, to meet face to
face with union negotiators, to refrain from offering solely
the status quo, and to refrain from unilaterally implementing
a progressive disciplinary policy and a system of written rep-
rimands. It also obligated the Respondents to rescind its new
drug and alcohol policy and further obligated them to supply
the Union with a copy of the hourly wage scale of bar-
gaining unit employees.
On January 9, 1991, following the execution and approval
of the settlement agreement by the Regional Director,
Lemmon wrote Loll a letter and asked him to set up a nego-
tiating session. He received no reply and attempted to reach
Loll by phone without success. Lemmon sent Loll a second
letter, dated January 30, again asking for a date for negotia-
tions. This letter was addressed to Johnson as well. On Feb-
ruary 21, 1991, Loll replied as follows:
Please be advised that our offer stands at the status
quo. At this time there is no change in the wages or
benefits which Mr. Johnson plans to offer.
Contact my office if there is anything else you wish
to discuss.
Lemmon found this response wholly unsatisfactory. After
several tries, he was able to reach Johnson by telephone on
March 5 and asked him to set a date for bargaining. Johnson
told Lemmon that Loll was ‘‘handling the whole shooting
match’’ and that Lemmon should contact Loll. Lemmon told
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Johnson, the president and owner of these companies, did not
even attend the hearing.
Johnson that he called Loll several times but that Loll did
not return his calls. On March 6, Lemmon wrote another let-
ter to Loll and Johnson, claiming that they were in violation
of the settlement agreement. He accused them of failing to
post the notice required by that agreement and threatened to
go to the Board. He received no response from this letter nor
has he received the wage information he had requested.
Lemmon then requested the office of the Federal Mediation
and Conciliation Service (FMCS) in Parkersburg to intervene
and see if they could facilitate negotiations. The FMCS was
unable to set up a meeting.
On July 17, 1991, the Respondents gave ‘‘Dick’’ Huggins
a written warning for failure to report off work. The docu-
ment stated that Huggins was guilty of a prior offense. On
July 31, 1991, just 2 weeks before the hearing in this case,
the Respondent gave Hoge a written warning for abuse of
company property. It detailed an event involving the throw-
ing of a wheel wash on the gunnel of a tugboat.
The Respondents state that they posted the notice portion
of the December 19 settlement agreement at the Wheeling fa-
cility but claim that the notice was removed on the same day
it was posted. They admit that they made no further effort
to continue the posting. There is no credible evidence that
the notice was ever posted at the Bellaire facility.
II. ANALYSIS AND CONCLUSIONS
The settlement agreement entered into by the parties on
December 19, 1990, and approved by the Regional Director
on December 21 obligated the Respondents to refrain from
certain illegal acts recited in the notice attached thereto and
to perform certain other affirmative acts which were also out-
lined therein. Furthermore, the agreement obligated the Re-
spondents to post the notice for 60 consecutive days in all
places where notices to employees are normally posted. As
stated above, there is no credible evidence that the Respond-
ents ever posted the notice at its Bellaire, Ohio facility. The
Respondents admit that, while they may have posted the no-
tice in question at their Wheeling, West Virginia facility,
they did not do so for 60 consecutive days. The notice was
posted early in the morning of a workday. By noon it was
missing. No action was taken to repost the notice and to en-
sure that the reposted notice was kept in place for the re-
quired period of time. This breach of the settlement agree-
ment was, in and of itself, sufficient to permit the Regional
Director to set it aside and to proceed to litigate the consoli-
dated complaint which ostensibly had been settled. As dis-
cussed hereinafter, the Respondents committed subsequent
unfair labor practices, any or all of which also would have
justified the Regional Director in setting aside the agreement.
Accordingly, this decision must address both the unfair labor
practices alleged to have occurred before December 21,
1990, as well as those which occurred thereafter.
Except for an explanation of the posting of the notice at
the Wheeling plant, Respondents presented no evidence on
the merits of the case. They called neither the president of
the Company nor any supervisor to explain, deny, or rebut
any testimony adduced by the General Counsel, nor did the
Respondents explain their failure to do so. Under well-settled
law, I conclude from this omission that these witnessess if
produced, would support and corroborate the General Coun-
sel’s case.5
(a) On December 18, the Monday following the union
meeting at Hose’s house, Burris told Thomas that he had
heard that a union meeting had taken place and that 15 or
16 employees were present. In making that statement, Burris
created the impression that the union activities of employees
were the subject of company surveillance in violation of Sec-
tion 8(a)(1) of the Act.
(b) During the same conversation, Burris asked Thomas
what the employees wanted and what the issues were. In so
doing, Burris solicited grievances from employees during an
organization drive with a view toward adjusting them in vio-
lation of Section 8(a)(1) of the Act.
(c) During the same time period when Burris was asking
employees at Wheeling about the progress of the Union’s or-
ganizational campaign, Appleby was doing the same thing at
Bellaire. He spoke with Coulter in the company office and
asked Coulter if he knew anything about the Union and who
was involved in it. By interrogating employees concerning
their union activities and the union activities of others, the
Respondents herein violated Section 8(a)(1) of the Act.
(d) When Stonebreaker asked Becker what the company
president would do if the employees became unionized,
Becker replied that Johnson would either close the place or
sell it and operate it through another corporation. This state-
ment constitutes an unlawful threat which violates Section
8(a)(1) of the Act.
(e) Two weeks later, both Johnson and Becker spoke to
Stonebreaker and Richardson during a lunchbreak. Johnson
asked Richardson what it would take to get the employees
to drop the Union. When Richardson responded to his ques-
tion with specifics, Johnson observed that there was nothing
wrong with those requests and he could comply with them.
By soliciting grievances during a union campaign with a
view toward adjusting them, the Respondents herein violated
Section 8(a)(1) of the Act. Johnson’s offer to give them paid
vacations and holidays if they would reject the Union con-
stitutes a promise of benefits which violates Section 8(a)(1)
of the Act.
(f) Johnson then posed the same question to Stonebreaker.
The latter replied that he wanted a pension. By soliciting ad-
ditional grievances with a view toward adjusting them, the
Respondents again violated Section 8(a)(1) of the Act.
(g) Early in January 1990, Becker asked Larry M. Huggins
what he wanted out of the Union. This statement constitutes
an unlawful solicitation of grievances with a view toward ad-
justing them in violation of Section 8(a)(1) of the Act.
(h) Becker went on to state that Johnson would arrest
union representatives as trespassers if they came on his prop-
erty and threatened that, if employees brought the Union into
the Company, Johnson would sell the business or close it
down. These statements constitute unlawful threats which
violate Section 8(a)(1) of the Act.
(i) Soon thereafter, Johnson spoke with Larry M. Huggins
and Halbert Baker, asking them what it would take not to
have a union. When they gave him a responsive answer, he
indicated that he would comply with some of their requests.
The questions posed by Johnson constituted an unlawful so-
205J & C TOWING CO.
licitation of grievances with a view toward adjusting them in
violation of Section 8(a)(1) of the Act. This offer to give
them paid vacations and paid holidays if they would reject
the Union constitutes a promise of benefits which violates
Section 8(a)(1) of the Act.
(j) As Johnson was concluding the above-recited conversa-
tion, he asked Huggins and Baker whether they were for him
or against him. In the context, the questions were ominous
and constituted unlawful interrogation concerning the union
sympathies of employees in violation of Section 8(a)(1) of
the Act.
(k) Baker, Abercrombie, and Sellers were together with
Becker aboard a tugboat and asked Becker what Johnson
thought about the Union. Becker replied that ‘‘I can tell you
one thing. Belmont Marine won’t be with us too long.’’ This
reply constituted an unlawful threat to close or sell the busi-
ness in reprisal for union activities in violation of Section
8(a)(1) of the Act.
(l) About 2 weeks later, Becker asked Hose what it would
take to prevent the Union from coming into the plant. This
question constituted an unlawful solicitation of grievances in
violation of Section 8(a)(1) of the Act.
(m) When Hose replied that it would not be possible to
prevent the Union from coming into the plant, Becker said
that Johnson would close the place down. This statement
constituted an unlawful threat in violation of Section 8(a)(1)
of the Act.
(n) Shortly after the Union won the representation election
in February, 1990, the Respondents posted a notice forbid-
ding employees to come on company property, including but
not limited to boarding tugboats, while under the influence
of drugs or alcohol. It threatened discharge for a violation of
this rule. The Company had never before had a written rule
or any rule concerning the use of drugs or alcohol. It had
never had a rule imposing discharge as a penalty for report-
ing to work under the influence of either agent. This rule
was announced by a written document posted on the bulletin
board. Its provisions went far beyond the requirements of
new Coast Guard regulations, which applied only to licensed
personnel and did not require discharge for being aboard a
vessel under the influence of drugs or alcohol but merely re-
moval from the vessel. There is no suggestion that the Re-
spondents made any effort to notify the Union of this new
policy or to negotiate its provisions. Following the Union’s
victory at the representation election, they were under a duty
to do so. By unilaterally adopting a new drug and alcohol
policy, the Respondents violated Section 8(a)(1) and (5) of
the Act.
(o) Following the election, the Respondents instituted a
new disciplinary policy respecting the failure of employees
to notify the Company when they were not coming to work.
Previously, employees had frequently failed to notify the
Company that they were not coming to work without incur-
ring any penalty. The new policy provided for progressive
discipline resulting in discharge for the fourth violation.
Again there is no suggestion that the Respondents negotiated,
or offered to negotiate, the adoption or implementation of
these rules with the Respondents. By unilaterally adopting
this policy, the Respondents violated Section 8(a)(1) and (5)
of the Act.
(p) The Respondents not only adopted a new disciplinary
policy respecting the failure to ‘‘report off,’’ they also issued
written disciplinary warnings to Hose and Kenneth Huggins
on several occasions for not ‘‘reporting off.’’ By imple-
menting an unlawfully adopted disciplinary policy, the Re-
spondents herein violated Section 8(a)(1) and (5) of the Act.
(q) The collective-bargaining session that took place on
May 23 was a sham. The Respondents stalled and dragged
their feet about agreeing to the meeting. At the meeting, they
refused to discuss any subject other than wages. They offered
only the status quo as to every existing wage rate and term
and condition of employment. They issued disciplinary warn-
ings to two members of the Union’s in-plant negotiating
team for failing to notify them of impending absences when
they knew full well where these employees were, that they
were members of the Union’s negotiating team, and that they
would be absent from work to participate in the collective-
bargaining session. During the brief bargaining session and
thereafter, they refused to make any proposals or counter-
proposals. Each and every one of these actions, in and of
themselves, constituted a violation of Section 8(a)(1) and (5)
of the Act and evidenced overall subjective bad faith on the
part of the Respondents with regard to their newly acquired
duty to bargain with the representative of their employees.
On several different occasions, the Union asked the Re-
spondents, both orally and in writing, for a list of the wage
rates of bargaining unit personnel by that it could be in a po-
sition to formulate bargaining proposals concerning wages.
Over a year has elapsed since the first request and no infor-
mation has been supplied. Such information is presumptively
relevant to the Union’s duty to bargain on behalf of unit em-
ployees. By failing and refusing to furnish it in a timely
fashion, the Respondents violated Section 8(a)(1) and (5) of
the Act.
Since May 23, 1990, the Respondents have refused to
meet with the Union, even after signing a settlement agree-
ment obligating themselves to do so. Their representatives
have stalled about setting a date for negotiations, refusing to
return phone calls and giving the union negotiator the run-
around when he attempted to establish a bargaining session
(i.e., after getting nowhere with Loll with a request for a
meeting, Lemmon was told by Johnson that Loll was boy ev-
erything). The Respondents’ postsettlement offer, namely, the
status quo, was no different from their presettlement posture
and plainly demonstrated that their written agreement to
abide by the Act was worthless. These acts and omissions
constitute further violations of Section 8(a)(1) and (5) of the
Act.
On the foregoing findings of fact and conclusions of law,
and upon the entire record herein considered as a whole, I
make the following
CONCLUSIONS OF LAW
1. J & C Towing Co., Inc. and Belmont Marine Services,
Inc., and each of them, is now, and at all times material
herein have been, employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. United Steelworkers of America, AFL–CIO–CLC is a
labor organization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time production and main-
tenance employees of J & C Towing, Inc., located at Wheel-
ing, West Virginia, and all full-time and regular part-time
production and maintenance employees of Belmont Marine
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Services, Inc., located at Bellaire, Ohio, including all crane
operators, oilers, welders, pilots, deckhands, and laborers, but
excluding all office clerical employees and guards, profes-
sional employees, and supervisors within the meaning of the
Act, constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since on or about February 12, 1990, the Union has
been the exclusive collective-bargaining representative of all
the employees in the unit found appropriate in Conclusion of
Law 3, above, for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By unilaterally adopting a new written drug and alcohol
policy; by unilaterally adopting a new written progressive
disciplinary system respecting the failure of employees to no-
tify the Company when they were not coming to work; by
issuing disciplinary notices to employees pursuant to their
unilaterally adopted policy of written warnings for not ‘‘re-
porting off’’; by stalling and footdragging in setting up nego-
tiating sessions and by giving union representatives a run-
around to avoid setting up negotiating sessions; by refusing
to bargain face to face with union negotiators; by issuing dis-
ciplinary notices to in-plant members of the Union’s negoti-
ating team for missing work while they were engaged in col-
lective bargaining; by offering only the status quo and by
failing to make meaningful counterproposals to union bar-
gaining proposals; by refusing to furnish the Union in a time-
ly fashion with relevant information concerning wage rates
of bargaining unit employees; and by refusing to bargain col-
lectively in good faith with the Union as the duly selected
exclusive bargaining representative of their employees, the
Respondents herein violated Section 8(a)(5) of the Act.
6. By the acts and conduct set forth above in Conclusion
of Law 4; by coercively interrogating employees concerning
their union sympathies and activities and the union sym-
pathies and activities of other employees; by soliciting griev-
ances from employees during a representation election cam-
paign with a view toward adjusting those grievances; by
promising employees benefits if they would reject the Union;
by threatening to go out of business or to close the plant if
employees selected the Union as their bargaining representa-
tive; and by threatening to arrest union representatives if they
came on company property, the Respondents herein violated
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices have a close, inti-
mate, and adverse effect on the free flow of commerce with-
in the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents herein have engaged in
certain unfair labor practices, I will recommend that they be
required to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and
policies of the Act. Since the violations of the Act found
herein are repeated, pervasive, and evidence an attitude on
the part of the Respondents to behave in total disregard of
their statutory obligations, I recommend to the Board a so-
called broad 8(a)(1) order designed to suppress any and all
violations of that section of the Act. Hickmont Foods, 242
NLRB 1357 (1979). The recommended Order will require
the Respondents to supply the Union with the information it
requested concerning wage rates, to meet with the Union at
reasonable dates and hours to bargain in good faith con-
cerning wages, hours, and terms and conditions of employ-
ment and, if agreement is reached, to embody that agreement
in a written, signed contract. It will also require the Respond-
ents to rescind their new unilaterally adopted work rules and
attendance rules and to expunge from the personnel records
of their employees any disciplinary actions taken pursuant to
the rules and policies they unilaterally adopted. The rec-
ommended Order will direct the Respondents to bargain col-
lectively in good faith with the Charging Party and to em-
body any agreement reached in a written, signed document.
Because the Respondents have yet to do so, the certification
year, which normally begins to run on the day of the certifi-
cation, will be extended and will not begin to run until the
Respondents begin to honor the certification. Mar-Jac Poul-
try Co., 136 NLRB 785 (1962). The recommended Order
will also require the Respondents to post the usual notice,
advising their employees of their rights and of the results in
this case.
[Recommended Order omitted from publication.]