Lee Lumber & Building Material

National Labor Relations Board - Board Decisions

Feb 27, 1992

306 N.L.R.B. 408 (N.L.R.B. 1992)

408
306 NLRB No. 79
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
We correct the judge’s citations to Leonard Wholesale Meats, 136
NLRB 1000 (1962), and Superior Bakery, 294 NLRB 256 (1989),
enfd. 893 F.2d 493 (2d Cir. 1990). We shall also modify his rec-
ommended Order and notice to reflect the accurate description of the
bargaining unit.
2 In the previous negotiations, the question of whether to keep the
profit-sharing plan or adopt the Union’s pension program, with re-
spect to employees hired before May 19, 1989, was left to a major-
ity vote of the employees. The employees voted to retain the profit-
sharing plan.
3 No exceptions were taken to this finding.
4 In response to questions about how the Union could be voted
out, Baumgarten also gave the employees general information con-
cerning the filing of petitions and the location of the Board’s office.
The judge found that supplying that sort of information, without
Lee Lumber and Building Material Corp. and Car-
penter Local No. 1027, Mill-Cabinet Industrial
Division, a/w the United Brotherhood of Car-
penters and Joiners of America, Chicago and
Northeast Illinois District Council of Car-
penters, AFL–CIO. Cases 13–CA–29377, 13–
CA–29441, 13–CA–29578, and 13–CA–29619
February 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On March 19, 1991, Administrative Law Judge Joel
A. Harmatz issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed answer-
ing briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified below and to adopt the rec-
ommended Order as modified and set forth in full
below.
1. The complaint alleges that the Respondent’s sec-
retary-treasurer, Randy Baumgarten, threatened em-
ployees that the Respondent would discontinue its
profit-sharing plan if a new collective-bargaining con-
tract was negotiated with the Union, in violation of
Section 8(a)(1). Baumgarten testified that he called a
meeting of unit employees in March 1990 to answer
questions that had been raised by some employees
about the future of profit sharing. According to
Baumgarten’s credited version of what he said at the
meeting, Baumgarten first told the employees that he
could not threaten or promise anything, but that he
wanted to answer any questions they might have.
When asked whether the profit-sharing plan would be
continued, Baumgarten reminded the employees that in
the negotiations held the previous year, the Union had
sought to replace the profit-sharing program with its
own pension plan,2 and indicated that the Union might
do so again in negotiations for a new agreement. He
also explained that, under the existing profit-sharing
plan, employees were vested after 5 years, but that
under a pension program the older employees probably
would not be fully vested by the time they retired. The
judge found that Baumgarten’s remarks were not un-
lawful threats to take away benefits, but lawful state-
ments of what might happen in the course of negotia-
tions.3
The judge nevertheless found that Baumgarten’s
statements, which sparked a decertification movement
among unit employees almost immediately, supported
complaint allegations that employees were unlawfully
encouraged to invoke the decertification procedure, and
that indeed the statements constituted such unlawful
activity. He found, first, no indication that the employ-
ees intended to circulate a decertification petition be-
fore Baumgarten made his remarks. The judge then re-
jected Baumgarten’s explanation that he called the
March meeting in response to the employees’ concerns
over continuation of the profit-sharing program; he
found instead that ‘‘this undertaking was explainable
only in terms of a zealous desire to topple the Union.’’
He found that Baumgarten was in no position to an-
swer questions or to allay employees’ concerns about
the Union’s bargaining stance, because negotiations
had not begun and the Union had advanced no de-
mands at all. Moreover, he observed, the employees
would not lose the profit-sharing plan, even if the
Union again attempted to replace it with the pension
program, unless the Respondent agreed. He further
noted that, the employees having opted to retain profit
sharing instead of changing to the pension program,
there was no reason for Baumgarten to assume that the
Union would flout their revealed desires by insisting
again on switching to the pension program. The judge
concluded that Baumgarten had seized on and ex-
ploited the employees’ concerns over the issue of prof-
it sharing as a means of discrediting the Union, and
that he had called the March meeting with that purpose
in mind. In support of his conclusion, the judge noted
that Baumgarten held the meeting only a few days be-
fore the 30-day open period for filing decertification
petitions would have elapsed, and that he told the em-
ployees, on his own initiative and without solicitation,
that any such petition would have to be filed soon.4
409LEE LUMBER & BUILDING MATERIAL
more, would not constitute unlawful assistance to the employees in
filing the petition. (No exceptions were filed to this finding.) How-
ever, in light of his finding that Baumgarten unlawfully encouraged
the employees to file the petition, the judge found that Baumgarten
also unlawfully advised the employees about how to accomplish the
filing.
5 In fn. 6 of his decision, the judge found that Baumgarten, in a
private conversation with employee LaRosa, said that the Union was
talking about eliminating profit sharing and going with the pension
plan, and that ‘‘they got the right to do it if they want to.’’ The
judge did not rely on those remarks in finding that Baumgarten un-
lawfully encouraged the decertification movement, and no exceptions
were filed to his failure to do so.
6 The Respondent also contends that the judge erred in finding that
Baumgarten acted out of a desire to get rid of the Union, and that
the judge improperly precluded the Respondent from introducing
evidence of Baumgarten’s actual motive. Although, as discussed
below, we find that the issue of motive was irrelevant to the 8(a)(1)
issue, we find no merit to the Respondent’s due process contention.
Contrary to the Respondent’s representation on p. 28 of its brief, the
Respondent did, in fact, introduce evidence pertaining to
Baumgarten’s motive. Baumgarten was asked why he held the
March meeting and why he made the statements to employees re-
garding the profit-sharing and pension programs, and testified fully
and without objection on both subjects. The Respondent does not
offer to explain what, if any, additional evidence concerning motive
it was prevented from introducing. On the issue of motive, then, the
Respondent was not denied due process; it simply failed to convince
the judge.
7 El Rancho Market, 235 NLRB 468, 471 (1978), enfd. mem. 603
F.2d 223 (9th Cir. 1979); Munro Enterprises, 210 NLRB 403
(1974); Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1114 (7th
Cir. 1973); NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir.
1946).
8 Although the judge found that Baumgarten’s decision to address
the employees could be explained only in terms of a desire to oust
the Union, he did not discredit Baumgarten’s testimony that several
employees had asked questions about profit sharing. In addition, em-
ployee LaRosa testified that there was a rumor before the March
meeting that profit sharing would be discontinued.
9 The judge found that Baumgarten volunteered the information
that the employees needed to file their decertification petition soon.
Although the judge clearly disapproved of Baumgarten’s providing
this information unbidden, we do not share his view. Because the
open period for filing election petitions was about to end,
Baumgarten’s remark was simply an accurate statement of the
Board’s procedures.
10See, e.g., Eagle Comtronics, 263 NLRB 515 (1982).
The judge found that, under all the circumstances,
Baumgarten’s remarks ‘‘transcended neutrality on rep-
resentational issues, by implanting the seeds of discord
through direct communication with employees,’’ and
therefore constituted unlawful encouragement of the
decertification movement.5
The Respondent excepts. It contends that, having
found that Baumgarten had not threatened employees
or promised them benefits, the judge erred in finding
that Baumgarten had nonetheless unlawfully encour-
aged their decertification activities. It also urges that
the judge improperly relied on Baumgarten’s motive,
or intent, in finding his otherwise lawful statements to
be unlawful.6 We find merit in the Respondent’s ex-
ceptions.
We first agree with the Respondent that the judge
improperly relied on Baumgarten’s motive in finding
that Baumgarten interfered with the employees’ exer-
cise of their Section 7 rights by encouraging them to
file the decertification petition. Section 8(a)(1) is vio-
lated when an employer’s statements ‘‘interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7.’’ The Board and the
courts have long held that the test for unlawful inter-
ference, restraint, or coercion does not turn on the em-
ployer’s motive, or on actual effect. Rather, the test is
whether the employer’s statements may reasonably be
said to have tended to interfere with employees’ exer-
cise of their Section 7 rights.7
We shall analyze Baumgarten’s statements, there-
fore, without regard to whether he intended to cause
the employees to become disaffected from the Union.
Under that analysis, we are persuaded that Baumgarten
did not impermissibly interfere with, restrain, or coerce
the employees by encouraging their decertification ac-
tivities.
To begin with, the evidence indicates that
Baumgarten called the March meeting in response to
rumors that were circulating in the shop and to ques-
tions that had been asked by employees, regarding
continuation of the profit-sharing program.8 When the
meeting started, Baumgarten stated that he could not
make any threats or promises; and, as the judge found,
he did not. Instead, he told the employees that he
wanted to answer any questions they might have. Most
of the questions concerned profit sharing. As we have
recounted, Baumgarten informed the employees that
profit sharing was a negotiable item, that the Union in
the previous negotiations had tried to replace profit
sharing with the Union’s pension plan, and that ‘‘it
could happen again, but it might not [happen] again.
It was something that could be negotiated.’’ He also
called the employees’ attention to what he considered
a disadvantage of switching to the pension plan, at
least for older employees. There is no contention that
any of these statements were inaccurate. When the em-
ployees asked what steps they should take to vote the
Union out, Baumgarten responded with only general
information of the kind employers may lawfully pro-
vide.9
It is clear that, under Section 8(c), an employer may
lawfully furnish accurate information, especially in re-
sponse to employees’ questions, if it does so without
making threats or promises of benefits.10 That is what
Baumgarten did. The judge nevertheless found that
Baumgarten acted unlawfully, in an attempt to dis-
credit the Union and promote its rejection by the em-
ployees, by gratuitously suggesting that the Union
might take a negotiating position with regard to the
pension/profit-sharing issue that would be disfavored
by many of the unit employees. We disagree. The
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If the Union had never tried to persuade the Respondent to
abandon its profit-sharing plan in favor of the Union’s pension pro-
gram, or if Baumgarten had attempted to mislead the employees by
stating that the Union actually was, again, demanding a change to
the pension plan, we might reach a different result.
12 See Cumberland Shoe Co., 160 NLRB 1256, 1259 (1966). Nor
are Baumgarten’s lawful statements rendered unlawful because they
were made (as we find below) in the context of other, unlawful ac-
tions.
Fabric Warehouse, 294 NLRB 189 (1989), enfd. mem. sub nom.
Hancock Fabrics v. NLRB, 902 F.2d 28 (4th Cir. 1990), cited by the
judge, is inapposite to this case. The employer in Fabric Warehouse,
unlike the Respondent, independently violated Sec. 8(a)(1) by prom-
ising employees better benefits if they got rid of the union. The
Board specifically relied on the promise of benefits in finding that
the employer had unlawfully encouraged employees to circulate a
decertification petition. 294 NLRB at 191.
13 The Respondent does not dispute the judge’s finding that the
provision of transportation, though not alleged in the complaint to
have been unlawful, was an issue that was litigated sufficiently to
warrant the finding of a violation.
The Respondent does contend that the judge erred in finding that
it unlawfully assisted the decertification effort, because the employ-
ees signed the petition before the assistance occurred. We find no
merit to this exception. But for the Employer’s granting time off
(with pay) for involved employees, the petition might not have been
filed. See Dayton Blueprint Co., 193 NLRB 1100, 1108 (1971).
14 The Respondent excepts to this finding, but argues only that (1)
the Respondent did not actually foreclose negotiations during the rel-
evant period, (2) the Union acquiesced in the delay in bargaining,
and (3) the Respondent ‘‘cured’’ the violation by commencing bar-
gaining later. We find no merit in those contentions.
We agree with the judge that the Respondent could not lawfully
rely on the tainted decertification petition as the reason for declining
to bargain with the Union.
15 In agreeing with the judge that the withdrawal of recognition
was tainted by the Respondent’s unremedied unfair labor practices,
however, we rely only on the unlawful assistance to the decertifica-
tion movement in March, and on the delay in bargaining caused by
the Respondent’s refusal to meet with the Union.
16 See, e.g., Tampa Sheet Metal Co., 288 NLRB 322, 326 fn. 15
(1988).
credited testimony establishes that Baumgarten did not
say the Union would insist on switching from profit
sharing to the pension plan, or even that the Union
would bring the subject up in negotiations. He merely
stated that the Union might raise the pension/profit
sharing issue, as it had in the previous negotiations,
and that the subject would be negotiable.11 As it hap-
pened, Baumgarten’s remarks caused consternation
among the employees, and led to the filing of the de-
certification petition. Otherwise lawful statements do
not become unlawful, however, merely because they
have the effect (intended or otherwise) of causing em-
ployees to abandon their support for a union.12 Ac-
cordingly, we find, contrary to the judge, that the Re-
spondent did not violate Section 8(a)(1) by encour-
aging the filing of the decertification petition. Accord-
ingly, we also find, contrary to the judge, that
Baumgarten did not unlawfully provide assistance by
advising the employees, in general terms, about how to
file the petition.
2. Although we have found no unlawful encourage-
ment of the employees’ decertification activities, we
agree with the judge, for the reasons stated in his opin-
ion, that the Respondent violated Section 8(a)(1) by
providing assistance, in the form of time off with pay,
reimbursed parking expenses, and transportation,13 to
the employees who filed the petition with the Board.
We also agree with the judge that the Respondent’s re-
fusal, for a period of several weeks, to meet with the
Union for the purpose of negotiating a new contract
violated Section 8(a)(5),14 as did its failure to provide
certain relevant information requested by the Union.
Further, we adopt the judge’s finding that the Re-
spondent violated Section 8(a)(5) by withdrawing rec-
ognition from the Union in July 1990.15
3. The judge also found that the Respondent violated
Section 8(a)(5) by unilaterally changing terms and con-
ditions of employment of employees in the unit after
it withdrew recognition from the Union. We adopt the
judge’s findings in this regard except for his finding
that the Respondent unlawfully declined to honor
checkoff arrangements with the Union. As the Re-
spondent points out, an employer’s duty to check off
union dues does not survive the expiration of the col-
lective-bargaining contract.16 The Respondent ceased
to check off and remit union dues only after its con-
tract with the Union had expired. Its actions in this re-
spect therefore were not unlawful.
ORDER
The National Labor Relations Board orders that the
Respondent, Lee Lumber and Building Material Corp.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Assisting employees in the filing of a decertifica-
tion petition by providing reimbursement for wages
and parking fees that would otherwise be lost by em-
ployees who participated in the filing of the petition.
(b) Refusing to bargain in good faith with the Union
concerning the rates of pay, wages, hours, and working
conditions of employees in the following appropriate
unit:
All full-time, part-time, temporary, or seasonal
production and maintenance foremen, leadmen,
journeymen, millmen, apprentices and all other
employees engaged in work covered by the ‘‘Oc-
cupational Jurisdiction of the Union (Mill-Cabi-
net-Industrial Division),’’ including, but not lim-
ited to, in-plant millwork production; fabrication
of cabinets, tables, desks, doors, sash, window
frames, millwork, store fixtures, display fixtures,
plastic laminates and veneers of all types used in
the manufacture thereof; component parts; install-
ers of hardware; gluers, scrapers of glue, sprayers;
handlers of materials to and from clamp; bench-
411LEE LUMBER & BUILDING MATERIAL
17 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.’’
work, assemblers, lay-out, operators of power ma-
chinery and hand power tools relating thereto.
(c) Refusing to bargain in good faith by curtailing
contract renewal negotiations on behalf of employees
in the unit solely because a decertification petition is
pending.
(d) Refusing to bargain in good faith by failing, on
request, to furnish information relevant and necessary
to the Union’s performance as exclusive representative
of employees in the unit.
(e) Refusing to bargain in good faith by withdrawing
recognition from the Union.
(f) Refusing to bargain in good faith by unilaterally,
without notice to or negotiating with the Union, dis-
continuing payments to the Chicago and Northeast Illi-
nois District Council of Carpenters Apprentice and
Training Program, discontinuing union visitation rights,
and granting wage increases to unit employees.
(g) In any like or related manner interfering with,
restraining, 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) Recognize and, on request, bargain in good faith
with the Union, as the representative of the employees
in the unit, and embody any agreement reached in a
written contract.
(b) On request, furnish the Union with a copy of its
health insurance policy and a list of unit employees
who participate in the profit-sharing plan.
(c) Resume payments to the Chicago and Northeast
Illinois District Council of Carpenters Apprentice and
Training Program, and make whole the latter by remit-
ting delinquencies as specified in the remedy section of
the judge’s decision, with interest.
(d) Post at its facilities in Chicago, Illinois, copies
of the attached notice marked ‘‘Appendix.’’17 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 13, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT assist employees in repudiating Car-
penter Local No. 1027, Mill-Cabinet-Industrial Divi-
sion, a/w the United Brotherhood of Carpenters and
Joiners of America, Chicago and Northeast Illinois
District Council of Carpenters, AFL–CIO by showing
our support for decertification by reimbursing wages
and parking fees that would otherwise be lost by em-
ployees who filed that petition.
WE WILL NOT refuse to bargain in good faith with
the Union concerning the rates of pay, wages, hours
and working conditions of employees in the following
appropriate unit:
All full-time, part-time, temporary, or seasonal
production and maintenance foremen, leadmen,
journeymen, millmen, apprentices and all other
employees engaged in work covered by the ‘‘Oc-
cupational Jurisdiction of the Union (Mill-Cabi-
net-Industrial Division),’’ including, but not lim-
ited to, in-plant millwork production; fabrication
of cabinets, tables, desks, doors, sash, window
frames, millwork, store fixtures, display fixtures,
plastic laminates and veneers of all types used in
the manufacture thereof; component parts; install-
ers of hardware; gluers, scrapers of glue, sprayers;
handlers of materials to and from clamp; bench-
work, assemblers, lay-out, operators of power ma-
chinery and hand power tools relating thereto.
WE WILL NOT refuse to bargain in good faith by
suspending contract renewal negotiations solely be-
cause a decertification election petition has been filed.
WE WILL NOT refuse to bargain in good faith by re-
fusing, on request, to furnish information relevant and
necessary to the Union’s performance as exclusive rep-
resentative of employees in the unit.
WE WILL NOT refuse to bargain in good faith by
withdrawing recognition from the Union.
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Allegations that the Respondent violated Sec. 8(a)(1) by interro-
gating employees concerning union sympathy and, through Super-
visor Victor Barba, soliciting employees to sign a decertification pe-
tition were unsubstantiated and therefore dismissed at the hearing. 2 Certain errors in the transcript have been noted and corrected.
WE WILL NOT refuse to bargain in good faith by
unilaterally, and without notice to, or negotiations with
the Union, discontinuing payments to the Chicago and
Northeast Illinois District Council of Carpenters Ap-
prentice and Training Program, and discontinuing
union visitation.
WE WILL NOT refuse to bargain in good faith by
unilaterally, and without notice to, or negotiations with
the Union, granting wage increases to employees in the
unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain in good
faith with the Union, as the representative of the em-
ployees in the unit, and embody any agreement
reached in a written contract.
WE WILL, on request, furnish the Union with a copy
of our health insurance policy and a list of unit em-
ployees who participate in the profit-sharing plan.
WE WILL resume payments to the Chicago and
Northeast Illinois District Council of Carpenters Ap-
prentice and Training Program, and make whole the
latter by paying all delinquencies which have accrued,
with interest.
LEE LUMBER AND BUILDING MATERIAL
CORP.
Dawn Scarlett and Jessica Willis, Esqs., for the General
Counsel.
James S. Frank and Paul F. Gleeson, Esqs. (Vedder, Price,
Kaufman & Kammholz), of Chicago, Illinois, for the Re-
spondent.
Collins P. Whitfield, Esq. (Hugh J. McCarthy & Associates),
of Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Chicago, Illinois, on December 12 and 13, 1990,
upon an original unfair labor practice charge filed on March
29, 1990, and a complaint issued in Cases 13–CA–29377 and
13–CA–29441 on July 30, 1990, and a separate complaint
issued in Cases 13–CA–29578 and 13–CA–29619 on Sep-
tember 27, 1990, alleging that the Respondent independently
violated Section 8(a)(1) of the Act by threatened discontinu-
ation of its profit-sharing plan,1 by unlawfully assisting em-
ployee defections from the Union in a variety of respects, in-
cluding payment of wages for time spent in filing a decerti-
fication election petition, reimbursement of expenses, and a
supervisor’s signing a petition rejecting union representation.
The complaint further alleged that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing, upon request,
to furnish certain relevant information, by refusing to meet
with the Union during a specified time frame, and by ulti-
mately withdrawing recognition from the Union. Finally, in
light of this latter allegation, the Respondent is charged with
derivative 8(a)(5) violations based upon subsequent changes
in employment terms. In its duly filed answers, the Respond-
ent denied that any unfair labor practices were committed.
Following close of the hearing, briefs were filed on behalf
of the General Counsel, the Charging Party, and the Re-
spondent.
On the entire record,2 including my opportunity directly to
observe the witnesses while testifying and their demeanor,
and after considering the posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, from two facilities in Chi-
cago, Illinois, is engaged in the retail sale of lumber and
building materials. In the course of that operation, the Re-
spondent during the calendar year prior to issuance of the
complaints, derived revenues exceeding $500,000, while re-
ceiving at said facility, goods, and materials valued in excess
of $50,000 directly from points outside the State of Illinois.
The complaints allege, the Respondent admits, and I find that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the answers admit, and I find that
Carpenter Local No. 1027, Mill-Cabinet Industrial Division,
a/w the United Brotherhood of Carpenters and Joiners of
America, Chicago and Northeast Illinois District Council of
Carpenters, AFL–CIO (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
This proceeding is primarily concerned with legitimacy of
an employer’s termination of a bargaining relationship.
Twice during 1990, certain unit employees engaged in efforts
to repudiate the Union. Proponents of the complaints argue
that both incidents were inspired by the Respondent’s unfair
labor practices, and hence furnished no justification for the
Respondent’s ultimate withdrawal of recognition. The Re-
spondent denies any undue participation in, or support of de-
certification activity, or that it engaged in any illicit behavior
which might have inspired employees to reject the Union. It
characterizes this proceeding as ‘‘a desperate attempt . . . by
the Union to frustrate the uncoerced desires of the unit em-
ployees to exercise their Section 7 rights to be rid of the
Union, by blocking their efforts to obtain a decertification
election and by attacking their subsequent express repudi-
ation of the Union through baseless charges.’’
413LEE LUMBER & BUILDING MATERIAL
3 The Employer did not formally oppose the Union during that
campaign. The instant unit was one of several, with the Employer
assertedly having long, harmonious relationships with affiliates of
the Teamsters in a unit of drivers and the Laborers International in
a unit lumber yard workers.
4 Unless otherwise indicated, all dates refer to 1990.
5 Of more than passing interest is undisputed evidence that this
meeting took place shortly after certain employees were polled con-
cerning their interest in an election to oust the Union. The response
apparently was negative. Thus, employees John Serritos and Joseph
LaRosa testified that shortly before Randy Baumgarten’s meeting,
Jose Barba, a coworker, who identified himself as an assistant super-
Continued
B. Overview
The Respondent is a family held concern. It is owned and
operated by Ricky Baumgarten, its president, and Randy
Baumgarten, its secretary-treasurer, both sons of Lee
Baumgarten, the founder. There are two locations in Chi-
cago. The southside facility includes a mill shop. There, as
an adjunct to material sales, the Respondent manufactures
building components, such as window units, prehung doors,
molding, and surface hardwoods. In October 1988, the Union
was certified by the Board as exclusive bargaining agent of
the previously unrepresented mill shop employees following
a Board-conducted election.3 The bargaining unit was small,
at times material, numbering no more than 14 employees.
Ensuing negotiations yielded a collective-bargaining agree-
ment, effective May 26, 1989, through May 25, 1990.
In July 1990,4 less than 2 years after certification, the bar-
gaining relationship was terminated in the context of evi-
dence indicating that employees had rejected union represen-
tation. This disenchantment with the Union first surfaced in
March 1990. In consequence, a decertification election peti-
tion was filed on March 20, 5 days prior to the insulated 60-
day period in which no election petition will be processed
under the Board’s contract-bar rules. See, e.g., Leonard
Wholesale Meats, 264 NLRB 1000, 1001 (1962).
Earlier, the opening of contract renewal negotiations had
been scheduled for April 11. Although furnished no evidence
that the Union no longer represented a majority, the Re-
spondent refused to meet on that date, informing the Union
that it would be inappropriate to do so in light of the im-
pending decertification election. This position was later re-
versed on May 5, when the Respondent notified the Union
that the law compelled bargaining and it would comply. Ne-
gotiations opened on May 23, with the Union presenting its
first proposal at that time.
As bargaining continued, on July 2, a document repudi-
ating the Union was circulated for signature of unit employ-
ees. It was signed by a majority. By then, the first contract
had expired, and ongoing negotiations had failed to produce
a new one. Effective July 3, after a majority had signed, the
signatures were presented to the Respondent, and based
thereon, recognition was withdrawn.
C. Concluding Findings
1. Emergence of decertification activity: Randy
Baumgarten addresses unit employees
a. Preliminary statement
By letter of February 1, the Union served notice of its in-
tention to renegotiate the subsisting agreement. (G.C. Exh.
3.) In March, prior to the onset of collective-bargaining ne-
gotiations, Randy Baumgarten initiated and conducted a
meeting with unit employees in the mill shop. Shortly there-
after, employees circulated and signed a statement expressing
their desire for an election, and then filed a decertification
petition with the National Labor Relations Board.
The General Counsel and the Charging Party argue that
the seeds of disenchantment with the Union were implanted
at that time through unlawful 8(a)(1) conduct in the form of
Randy Baumgarten’s threat to discontinue the long-estab-
lished profit-sharing plan if a new contract were negotiated,
and his encouragement of decertification activity. The Re-
spondent denies that the decertification activity was preceded
by any unlawful conduct on the part of Randy Baumgarten
or any other management representative.
b. The alleged threat
The complaint alleges that Randy Baumgarten expressed a
threat proscribed under Section 8(a)(1) by telling employees
at the March meeting ‘‘that Respondent would discontinue
its profit-sharing plan if a new contract were negotiated.’’
Prior to organization by the Union, the mill workers par-
ticipated in the Company’s profit-sharing plan. The Union is
affiliated with the Chicago and Northeast Illinois District
Council of Carpenters, which maintains its own pension plan.
During 1988–1989 negotiations, these plans were negotiated
as alternatives, with the Union demanding the District Coun-
cil’s plan, and the Respondent seeking to preserve profit
sharing. Ultimately, the matter was left to employee choice
according to formula set forth in article IX, section 2, as fol-
lows:
Those employees of Lee Lumber and Materials Com-
pany prior to May 19, 1989 will be allowed at their op-
tion to remain in the Lee lumber Profit sharing Plan or
at their option choose to be a participant in the Chicago
and Northeast Illinois District Council of Carpenters
Mill Pension Plan at the terms as stated in this agree-
ment. All employees hired after ratification of this
agreement shall be participants in the Chicago and
Northeast Illinois District Council of Carpenters Mill
Pension Plan. It is understood by all parties that Em-
ployees cannot be participants in both plans simulta-
neously.
Compromise is evident on the face of this provision. Rick
Baumgarten testified that the cross demands for union pen-
sion and company profit sharing ‘‘was a long hard negotiated
item, and it was left to a vote of the men in the bargaining
unit for the majority to rule on choosing whether the pension
of the union or the profit sharing of the company was to be
followed.’’ The majority opted for profit sharing. Clear evi-
dence indicates that the older workers understood, and were
specifically informed by Randy Baumgarten, that they would
be prejudiced under a pension plan and therefore strongly
preferred continued participation in the established profit-
sharing plan.
The future of profit sharing was the sole issue that prompt-
ed Randy Baumgarten’s meeting.5 He sought to justify the
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
visor, personally solicited their participation in that vote. Juan Luis
Santana, a coworker who also participated, and Santana testified that
latter Barba advised that the Union had survived. There is no direct
evidence that management was aware of the vote or its results.
6 Employee Joseph LaRosa, on cross-examination, testified that
prior to this meeting a rumor was circulating among the millwright
employees that the Union would ‘‘take away the profit sharing and
go with the pension plan.’’ However, uncontradicted testimony
shows that the meeting in question was not the only occasion on
which Randy Baumgarten broached this subject. Thus, LaRosa also
testified that in a private conversation prior to his signing the decer-
tification petition, Randy Baumgarten told him, ‘‘the contract was
going to be up . . . pretty soon and the Union was talking about
eliminating profit sharing and going with the pension plan.’’ LaRosa
replied that the pension plan would not be good for him, whereupon
Baumgarten allegedly replied, ‘‘they got the right to do it if they
wanted to.’’
7 Apart from this issue, the only topic raised was an individual
complaint by employee Jose Barba who expressed concern that cer-
tain medical bills had been rejected for payment under the health
plan.
8 In a recent case, the Board declined to find a violation even
where management, on its own, had declared that represented em-
ployees would not be eligible to participate in a newly established
retirement-type program. Thus, in KEZI Inc., 300 NLRB 594 (1990),
the Board broadened the imprimatur of legitimate action where man-
agement curtails benefits in the context of collective bargaining. In
that case, before renewal negotiations had concluded, an employer
announced that a proposed 401(K) plan would be provided for un-
represented employees, while declaring ineligible ‘‘employees who
are members of a collective bargaining unit with whom retirement
benefits were the subject of good faith bargaining.’’ This announce-
ment was deemed valid even though it penalized unit employees
solely because their representative had completed, or [more accu-
rately] was participating in good faith, yet unsuccessful attempts to
secure some form of retirement protection. The employer’s declara-
tion was followed by immediate decertification activity and a with-
drawal of recognition. Nonetheless, the administrative law judge’s
findings that both were illegal was reversed, with the dispositive
8(a)(1) allegation thrown out on the theory that the announced exclu-
sion of represented employees ‘‘anticipates that retirement benefits
will be determined through the normal process of collective bar-
gaining . . . .’’ If nothing else, this case suggests a heavy burden
is imposed upon the General Counsel where attempting to invalidate
the type of statement in issue here.
meeting as an attempt to ‘‘answer’’ questions that had been
raised by a number of employees ‘‘about what was going on
and about profit sharing.’’6 The potential collision between
pension and profit sharing was the only topic of general in-
terest discussed on that occasion.7
Baumgarten avers that he prefaced the meeting with the
disavowal: ‘‘I can’t threaten and I can’t promise anything
. . . but I want to answer any questions you might have.’’
When the men asked whether they would continue to enjoy
profit sharing, he claims to have responded as follows:
[P]rofit sharing was a negotiable thing . . . [A]s far as
I knew, it was up for negotiation and that it could go
either way. [T]he union in the past, in the first contract
had negotiated and wanted a pension program. . . .
[W]e had fought to have the profit sharing program re-
main. [I]t could happen again, but it might not again.
It was something that could be negotiated.
As for the likelihood that it might ‘‘happen again,’’
Baumgarten added:
[T]o the best of my knowledge, most unions do have
a pension plan and not a company profit sharing plan.
. . . [W]hen the first contract was negotiated, the union
did at first want to go with their pension program and
that led me to believe that there was a possibility they
might want it in the next contract.
He admits to arguing the virtues of profit sharing by making
the following points:
[S]ome of the older guys, we had a number of guys
about 60 years old, if they went into a pension program
they probably wouldn’t be fully vested by the time they
retired, and that in our profit sharing program they are
vested after five years. And that the pension program
distributes money in monthly allotment and the profit
sharing plan, they get a check all at once when they re-
tire.
Several witnesses testified that, because of his remarks, and
in consequence of fears he engendered, they understood and
developed concern that the Union would seek to revise the
contract in a manner prejudicing their continued participation
in profit sharing.
However pernicious, statements that employees will be
disadvantaged by collective bargaining or a union’s negoti-
ating stance do not amount to a proscribed threat. See, e.g.,
Histacount Corp., 278 NLRB 681, 689 (1986); Fountainview
Place, 281 NLRB 26, 31 (1986). The Respondent contends
that this is just such a case. Apparently the General Counsel
relies upon precedent in which employers’ were deemed to
have violated 8(a)(1) by implying that employees would lose
profit sharing upon designation of a union. Monfort of Colo-
rado, Inc., 298 NLRB 73 (1990); see also Niagara Wires,
240 NLRB 1326 (1979). No case is cited to support a viola-
tion where the Employer makes it clear that this is a prob-
able consequence of give-and-take negotiation.8
The General Counsel’s evidence does not substantiate that
Baumgarten, directly or by fair implication, stated that profit
sharing would be lost automatically by any form of contin-
ued union support. The strongest evidence to this effect ap-
peared in a prehearing affidavit. Thus, Juan Santana, a wit-
ness who confessedly lacked independent recollection of the
incident, but who initially testified that he understood that
the Union would ask that employees be placed under a pen-
sion plan ‘‘and that people represented by the union would
no longer collect profit sharing,’’ furnished a prehearing affi-
davit, which described the following exchange:
I asked [Randy Baumgarten] about profit sharing. I
asked him if we were members of the union or do we
receive profit sharing. He responded that we would not
receive profit sharing if we were in the union.
The weight given this averment is nullified by my disbelief.
Because of a confessed lack of independent recollection, he
was unable to vouch for the accuracy of the affidavit or con-
firm or adopt its content. Moreover, the affidavit strikes as
improbable, without confirmation from other credible
sources. Beyond Santana, the witnesses called by the General
Counsel failed to provide a cohesive picture of just what
Randy Baumgarten said on that occasion. Testimony elicited
415LEE LUMBER & BUILDING MATERIAL
9 Counsel for the Charging Party, in his posthearing brief urges
error in the undersigned’s having sustained objections to the General
Counsel’s inquiries concerning the effects of the employer’s profit-
sharing remarks. These rulings are reaffirmed. Where Sec. 8(c) guar-
antees are involved, the test of illegality is the actual words used,
rather than the manner in which employees are influenced, or their
subjective understanding of what was said. Legitimate argumentation
devoid of threat or promise of benefit might well inspire fear, but,
does not, for that reason exceed free speech guarantees.
10 It will be recalled that even Santana testified that he ‘‘under-
stood’’ that if the pension plan were installed unit employees
‘‘would no longer collect profit sharing.’’
11 The General Counsel’s reliance upon Monfort of Colorado, Inc.,
supra, is misplaced. There, continues enjoyment of profit sharing
was conditioned upon rejection of the union. It implied action that
management would take, rather than an expression of union pref-
erence, and was not made with reference to collective bargaining or
against a negotiating history in which the union had taken a stance
on such benefit programs. Also distinguishable is the finding of
Judge Harold Kennedy in Capitol Foods, 241 NLRB 855, 859–861
(1979), relied upon herein by the Charging Party. First, no excep-
tions were taken to the administrative law judge’s unfair labor prac-
tice findings. Second, as made clear by the judge, the loss of profit
sharing in that case was not presented to employees as a con-
sequence of collective bargaining, but as a consequence of unioniza-
tion. See cases cited at 241 NLRB 861.
12 At the hearing the General Counsel attempted to amend the
complaint to allege that Jose Barba was a supervisor and that the
Respondent violated Sec. 8(a)(1) of the Act by his participation in
the certification process. The request was denied. In its posthearing
brief the General Counsel does not ask that I reverse that ruling,
only that I make a substantive finding in its favor. While conceding
that this ruling foreclosed further litigation of Barba’s status, includ-
ing any defense, it is now urged that I apply the apparent authority
doctrine upheld in Proler International Corp., 242 NLRB 676
(1979), enfd. 635 F.2d 351 (5th Cir. 1981), and find unlawful in-
volvement based upon his conduct. Thus, counsel now urges that I
be lured to compound the incursion upon fairness and due process
that my exclusionary ruling sought to avoid. This latter ruling was
made with full knowledge of the latitude given the General Counsel
to raise new matters during the course of the hearing, as well as the
empirical policy that the public interests safeguarded by the Act not
be imperiled by governmental neglect. I remain convinced that any
correction of the failure to include the Barba allegations would push
these desirable considerations too far. For, I am convinced and find
that the General Counsel’s omission created a strong appearance that
the issue was deliberated and deliberately omitted from the com-
plaint. Based upon colloquy with counsel, and other matters of
record, there is no question in my mind that the facts underlying the
Barba allegations were developed during an extensive prehearing in-
vestigation, which included multiple affidavits from virtually every
witness offered by the General Counsel. Barba’s involvement was
known to all. Prima facie evidence indicated that his job title was
communicated through a posting. Yet he was not implicated in either
of these longstanding complaints, despite the fact that his conduct
offers the only suggestion of direct managerial involvement in the
decertification activity and, hence, furnishes the most direct route to
nullification of the Respondent’s reliance upon that process. The fail-
ure to incorporate the Barba allegations cannot be lightly dismissed
as innocent error.
13 Except on timing, Randy Baumgarten’s testimony conforms with
that of Napier. He relates that the day after his mill shop meeting,
Napier asked him. ‘‘What can we do to get rid of the Union.’’
Baumgarten replied, ‘‘to the best of my knowledge, you have to
write a letter to the National Labor Relations Board and get 50 per-
cent of the guys to sign it, and then I assume there would be an
election.’’ Napier asked for the location of the Board, and was re-
ferred by Baumgarten to the telephone book. Later, on another day
he received the same inquiry from Jorge Alvarado, and gave the
same information.
from employee witnesses in this regard failed to inspire con-
fidence that they recalled the precise words used by
Baumgarten. I am convinced that their accounts were based
upon understanding and interpretation of his remarks, incul-
cated more from background than anything said by
Baumgarten.9 All employees certainly were alert to the fact
that during the initial negotiations, pension and profit sharing
were negotiated as alternative programs. Thus, one can as-
sume that employees themselves contemplated that they
would be bartered in the same fashion in the future. This is
evident from employee LaRosa’s testimony that prior to this
meeting, there were rumors all over the shop that ‘‘the Union
was going to take away the profit sharing and go with the
pension plan.’’10 Therefore, when the employees heard that
the Union might negotiate pension, they would think, without
having to be told, that their profit sharing was in jeopardy.
For the most part, the General Counsel’s witnesses offer
the crucial threads of corroboration to Randy Baumgarten’s
account of what was said. Thus, while testimony of John
Serritos, Bill Napier, Juan Luis Santana, and Joseph LaRosa
varied, all agree that Baumgarten indicated that it was pos-
sible that the Union would take the initiative by seeking to
negotiate its pension plan. Upon consideration of all the testi-
mony in this respect, it is concluded that no reliable, con-
vincing basis exists for concluding that employees were told
that the Company would alter its position or take any steps
compromising their continued participation in profit shar-
ing,11 and hence there was no implication that if the Union
successfully sought pension, profit sharing would be elimi-
nated automatically. Contrary to the complaint, the credited
testimony fails to substantiate that the employees were
threatened in this respect, and the 8(a)(1) allegation shall be
dismissed.
c. Randy Baumgarten, assistance to
decertification activity
The Baumgarten meeting was also relevant to allegations
that employees were unlawfully induced and encouraged to
invoke the decertification procedure. It is true that neither
Randy Baumgarten, nor any other agent of management par-
ticipated directly in the preparation or circulation of the un-
derlying decertification petition.12 And standing alone, the
guidance provided by Randy Baumgarten, to the extent that
his aid was solicited by employees, would fail to substantiate
proscribed assistance. Tartan Marine Co., 247 NLRB 646,
655–656 (1980). Viewed in isolation, in each instance, infor-
mation supplied was in general terms. For example, Napier
relates that upon inquiry as to how the Union could be elimi-
nated, Baumgarten replied:
You guys ought to know that. You get rid of the union
the same way you got it in. Just sign a petition and take
it down to the Labor Board.13
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Apparently the language on the petition originated with Jose
Barba. With confirmation from Serritos, he testified that, on or about
March 19, he dictated the message to the latter in Spanish, and
Serritos ‘‘wrote’’ it down in English. Although Napier relates that
it was his understanding that Jorge Alvarado drafted the petition, the
latter claimed credit for minor interlineations, but did not identify the
basic language as his own or as having been written by him.
15 From all indications, just prior to Baumgarten’s intervention, an
effort by certain employees to repudiate the Union had failed.
16 Baumgarten, by his own admission, had no expertise in the area
of pensions, thus, questioning his own competence to lead a bal-
anced discussion concerning the relative value of these alternatives
to retirement.
17 The assembly of employees and demeaning references to steps
the Union might take were uttered with certain awareness that their
could be no genuine threat to profit sharing unless the Respondent
were of a mind to agree.
18 The Board’s contract-bar rules permit the processing of election
petitions only within the open period between 90 and 60 days before
expiration of the agreement.
19 Several employees testified that this was the case. Thus, Serritos
testified that during the March meeting, Randy Baumgarten told the
employees that if they wished to vote the Union out, they had less
than 30 days within which to file a petition. Bill Napier stated as
follows:
Randy spoke and said if you are going to do anything it is going
to have to be done very shortly, because the contract was com-
ing up.
Baumgarten admitted that he was aware that there was a time limit
when employees could file, but denied knowledge as to what it was.
However, he does not deny that the issue was discussed, instead, in-
sisting that it was raised by employees. Thus, on cross-examination,
he related: ‘‘They asked me when do we have to, you know, is there
a time we have to do it? And I said I think pretty soon.’’ Basically,
Baumgarten was not regarded as entirely forthright, and critical as-
pects of his testimony were unconvincing. At the same time,
weighed against the total circumstances, it is considered more likely
that Baumgarten, rather than the employees, would have broached
this subject in the first instance. I believed Serritos and Napier, both
of whom were incumbent employees.
Napier added that Baumgarten, at his request, offered that
they could draft the petition as they wished as long as it was
signed by a majority.14
This limited involvement, however, cannot be separated
from other aspects of Randy Baumgarten’s entire course of
conduct, which contributed directly to renunciation of the
Union. As shall be seen, if Randy Baumgarten did not pilot
this effort, he had much to do with its launch. Under the
precedent, direct appeals or personal involvement is not es-
sential to a finding that decertification activity was unlaw-
fully encouraged. It suffices that the total circumstances dem-
onstrate that an employer, while obligated to recognize and
deal exclusively with a union, transcended neutrality on rep-
resentational issues, by implanting the seeds of discord
through direct communication with employees. Hancock
Fabrics, 294 NLRB 189 (1989).
That is precisely descriptive of Baumgarten’s conduct.
Here, as in Hancock, supra, there is nothing to suggest that
the employees ‘‘had any intention of circulating a decertifica-
tion petition before the Respondent encouraged them to do
so by its comments at . . . [the meeting].’’15 294 NLRB at
191 fn. 10. Indeed, in this case, Baumgarten’s meeting, in
terms of timing, background, content, and effect was explain-
able solely in terms of a calculated effort to foster uneasiness
with union representation and the need to act immediately to
secure an election.
Baumgarten claims that he elected to address the employ-
ees because some had expressed concern over continued par-
ticipation in profit sharing. As shall be seen, this undertaking
was explainable only in terms of a zealous desire to topple
the Union. At the meeting, Baumgarten first raised the possi-
bility that, due to the Union, profit sharing could be in jeop-
ardy, next offered reasons as to why this could occur, and
then illustrated that this would be prejudicial to veteran em-
ployees. He concluded by informing as to how decertification
could be accomplished, finally volunteering that steps had to
be taken soon.
Obviously, at the time of the meeting, Baumgarten was in
no position to answer questions or allay concerns about the
Union’s bargaining stance.16 On the available facts, profit
sharing was as much in the hands of the Employer as it was
threatened by the Union.17 No demands as to pensions, profit
sharing, or any other area of collective bargaining had been
presented by the Union. While there was nothing to suggest
that the Union would revisit any aspect of the existing retire-
ment formula, there was plenty room for doubt that it would.
At the conclusion of the prior negotiations, it receded from
its demands for the District Council’s pension plan, agreeing
that the employees might decide for themselves. Represented
employees responded by rejecting the pension plan, opting
for profit sharing. Their message was clear. Thus, the Union
having yielded previously to self-determination, Baumgarten
had every reason to assume that the Union would not frus-
trate that process by an attempt to reverse the expressed de-
sire of unit employees. In sum, his baseless assumptions as
to what the Union might do, together with observations as
to how this endangered profit sharing, all to the prejudice of
‘‘a number of guys that are about 60 years old,’’ constituted
officious behavior which could not be lightly dismissed as
educationally oriented.
Indeed, it is difficult to imagine any rational explanation
for addressing employees concerning another party’s bar-
gaining objectives before any negotiating meeting had been
held or scheduled or proposals made. The only logical expla-
nation is that Baumgarten, acting under the guise of edu-
cating the employees, was seizing upon an opportunity to
discredit the Union. Why else would he seek to confront em-
ployees, hurriedly, before profit sharing had been made an
issue? What was his rush to conduct a meeting, the focus of
which was pure speculation? Why not wait till the Union
showed its hand?
The explanation lies in the importance of timing to the Re-
spondent’s overall design. Baumgarten had informed employ-
ees that the Union could be ousted in the same fashion that
it was installed. In doing so, however, he knew that this op-
tion was subject to one major qualification. Under estab-
lished Board policy, election petitions filed during the term
of a subsisting collective-bargaining agreement, will be enter-
tained only during a single, 30-day period. Baumgarten held
his meeting during this timeframe.18 Credible evidence re-
veals that he communicated this fact to the employees volun-
tarily and without solicitation.19 In this light, this premature
meeting before the facts had unfolded is in consonance with
an overall strategy to generate a question concerning rep-
resentation. As is evident from its subsequent behavior, the
Respondent labored under assumption that the election proc-
417LEE LUMBER & BUILDING MATERIAL
20 As indicated, the Respondent declined to meet with the Union
on April 11, taking this action on a mistaken assumption that it did
not have to negotiate while the election petition was pending.
21 Traditionally, under this Act, it is the role of the statutory rep-
resentative to develop bargaining strategies which fairly reflect the
will of represented employees and to gain their assent after itself
communicating proposed bargaining objectives. Management’s delib-
erate intervention into this process in order to nurture employee
fears, even if unsuccessful, foreseeably, is calculated to undermine
employee confidence in their designated representative, and, thereby,
reflects rejection of the principles of collective bargaining.
Baumgarten’s behavior in this respect violated the spirit of the basic
teaching in Medo Photo Corp. v. NLRB, 321 U.S. 678, 684 (1944),
wherein it was stated that: ‘‘it is a violation of the essential principle
of collective bargaining and an infringement of the Act for the em-
ployer to disregard the bargaining representative by negotiating with
individual employees, whether a majority or minority, with respect
to wages, hours and working conditions.’’
22 Normally, issues of proscribed assistance are addressed without
reference to motivation. However, the goals attendant in a particular
pattern of behavior may be useful in reckoning the line between an
employer’s lawful right to address employee concerns and the breach
of neutrality evident where decertification activity is fostered under
the guise of ‘‘education.’’
23 Alvarado, testified, with corroboration from Joe LaRosa, that he
delivered the petition to the Board, in LaRosa’s company. He admits
that he was away from the plant for ‘‘a long time.’’
24 It is fair to assume that, whether or not authorized, the require-
ment that employees punch out would normally be administered at
lower echelons of management, and, as he testified, rarely would be
worthy of Rick Baumgarten’s attention. His admission of knowledge
suggests that he was alerted to what transpired, and, as he related
on direct examination, gave his approval.
ess would forestall, if not foreclose, any further negotia-
tions.20
Understandably, and as intended, the meeting quickly gave
way to decertification activity. Following the meeting, Napier
echoed the argument spelled out by Baumgarten, rising to
observe: ‘‘that [pension plan] ain’t going to help us older
folks, . . . we can’t work long enough to be in a pension
plan long enough to benefit from it . . . . we want to keep
the profit sharing.’’ Napier advised his coworkers: ‘‘let’s just
vote the Union out if we want the profit sharing.’’ A day or
two later, Jose Barba, was actively engaged in soliciting em-
ployee signatures to a document bearing the following mes-
sage:
The Employees of Lee Lumber:
(millshop) we are in the disposition to have another
election for the purpose of displacing the Union [G.C.
Exh. 16].
Apparently 12 coworkers signed. On March 20, the docu-
ment was taken to the Board’s Regional Office where used
to support the filing a decertification election petition.
Upon the foregoing, it is concluded that the March meet-
ing was held as a means of producing that very result. Rather
than allow the bargaining process to work, Randy
Baumgarten jumped in to frustrate that process by exploiting
a phantom issue, inflaming concern held by older workers
that profit sharing might be lost through negotiation, and in
this fashion driving a wedge between the Union and rep-
resented employees21 during the ‘‘window’’ period in which
the Board would entertain an employee-sponsored election
petition. Decertification activity was sown by an issue of Re-
spondent’s own creation, rather that anything said or done by
the Union, and, since a foreseeable consequence of Randy
Baumgarten’s conduct, it is fair to infer that this was the re-
sult he intended to produce.22
Upon the foregoing, the Respondent, having unlawfully
fostered employee disenchantment with the Union, while in-
stilling the idea of decertification, could not lawfully claim
the right to educate them as to how this could be accom-
plished. Thus, its advising employees as to how, when and
where they might reject the Union was interwoven in the un-
lawful scheme and, itself, was part and parcel of a pattern
of conduct violative of Section 8(a)(1) of the Act.
2. Other assistance
a. Compensation for filing petition
Randy Baumgarten testified that on March 20, in midafter-
noon, Jorge Alvarado and Jose Barba attempted to present
him with the signed petition. The former states that he threw
up his hands, emphatically refusing to see the document.
When the men indicated that they would take the document
to the National Labor Relations Board, he touched base with
Ricky Baumgarten, then told them to go ahead.
That afternoon the petition was filed with the Board’s Re-
gional office by Alvarado, in company of Joe LaRosa. To
perfect the filing, several hours were required, all during
working time. Neither suffered any loss of pay for time spent
in this process.23
Jose Barba did not accompany Alvarado and LaRosa. Ac-
cording to Barba, for unknown reasons, he was summoned
to join them at the Labor Board that afternoon. He reported
this to Randy Baumgarten and obtained his permission to
leave for that purpose. Contrary to his usual practice, Barba
did not punch out until his return around 5 or 5:30 p.m.
Barba, whose normal shift was from 5:30 a.m. to 4:30 p.m.,
as in the case of Alvarado and LaRosa, was paid for the en-
tire day, with overtime.
Rick Baumgarten testified that he approved payment for
those who delivered the petition to the Board because, in his
words, ‘‘I didn’t know any better. If I had any idea that it
would get me here and in this kind of trouble, I certainly
wouldn’t have.’’ On cross-examination, his testimony shifted,
with Baumgarten admitting knowledge that the men had been
paid, but denying that it was on his authority. Indeed he went
so far as to state: ‘‘I really had nothing to do with it.’’24
The Respondent defends on the basis of Washington Street
Foundry, 268 NLRB 338 (1983), where the day off granted
in order to file the petition would have been permitted if re-
quested for any other personal reason. This case is distin-
guishable. Obviously, neither this Respondent, nor any sen-
sible employer provides compensation, willy nilly, to those
employees who choose to leave in midshift for personal rea-
sons. Rick Baumgarten concedes that management, as a gen-
eral rule, required employees, who seek to leave work for
personal reasons, first, to obtain permission and then to clock
out with no compensation between that point and their
clocking back in. There were exceptions. Thus, Napier de-
scribed an incident where he was given time off, with pay,
by Victor Barba to leave work for an hour to remove his dis-
abled car from a bus stop, a step necessary to avoid the ex-
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 By virtue of art. XII of the collective-bargaining agreement,
which remained in effect at times material, union officials are au-
thorized to visit the shop ‘‘during working hours to interview Em-
ployees.’’ LaRosa testified that the meeting in question lasted only
about 10 minutes. He could not recall, however, whether it took
place on working time. He was paid.
26 On March 20, after being summoned to join Alvarado and
LaRosa at the Board, according to Barba, after telling Randy
Baumgarten that he did not know how to get to the Labor Board,
the following transpired:
He [Randy Baumgarten] said if you want to, we can get some-
one to drive you in. . . . So he told Albert and he [Albert]
brought me in.
Albert, who was not a bargaining unit employee, and whose last
name was unknown to Barba, then drove him to the Board. Randy
Baumgarten denied having any such conversation with Barba. I do
not believe that Barba, an antiunion employee, would have con-
cocted the incident. The matter was not alleged in the complaint as
within the conduct specified as unlawful. However, it was suffi-
ciently litigated to warrant a finding under the familiar Board policy
that unalleged unfair labor practices will be subject to remedy if
fully litigated. See, e.g., Pergament United Sales v. NLRB, 920 F.2d
130 (2d Cir. 1990).
27 Alvarado suggests that his affidavit was mistaken because he
was nervous at the time. While anything is possible, it is difficult
to imagine that this employee, who both in March and July was at
the vanguard of decertification activity, would have erroneously im-
plicated his boss in conduct which did not actually occur.
pense that would be associated with enforced towing. Alva-
rado, who signed the RD petition, testified that whether he
was paid while away from work depends on duration. Thus,
after receiving permission, he will not punch out if away
from work merely for 30 minutes to an hour. As for leaving
early, Alvarado affirmed the following description of his ex-
perience as set forth in his prehearing affidavit:
I have not ever had a situation where I had to leave
early and I did not punch out. The only time when I
would leave and not punch out was when I was on
some company work.
On the other hand, the Respondent points to evidence that
during visitations, employees were allowed to meet with
union representatives during paid time. Thus, Alvarado testi-
fied that, following the March election petition, union rep-
resentatives came to the plant and were permitted to address
the employees during their break. They suffered no loss in
pay even though the meeting continued beyond the break.25
In addition, Rick Baumgarten testified that employees were
compensated when interviewed by Board agents on company
time, but no specifics were offered as to the individuals in-
volved, the length of the interviews, or when they took place.
On balance, the instances in which employees were al-
lowed to leave in midshift without loss of pay were too iso-
lated to neutralize the message of approbation suggested by
management’s grant of these wage concessions. It was a ben-
efit unsupported by sufficient universality to avoid collision
with Section 7 guarantees. In context of the unlawful assist-
ance by Randy Baumgarten, the compensation bestowed
upon Alvarado, LaRosa, and Barba was a further signal tend-
ing to convince those involved in this, and any future effort
to repudiate the Union, that the Respondent openly endorsed
their venture. The Board has held that an employer renders
unlawful assistance in conjunction with decertification activ-
ity where employees are paid for time spent in filing the
election petition and where transportation is provided. Day-
ton Blueprint Co., 193 NLRB 1100, 1107–1108 (1971).
Here, the Respondent was guilty of both,26 and, as shall be
seen, also reimbursed an employee for parking expense. Hav-
ing provided the inspiration for decertification, and guidance
as to how an election might be secured, these additional re-
minders were interwoven with the overall scheme of unlaw-
ful assistance. In context of the entire record, they also vio-
lated Section 8(a)(1) of the Act.
b. Reimbursed parking
Upon return to the plant, Alvarado, who drove his personal
vehicle to the Board, was reimbursed for parking fees. The
only factual question presented in this regard is whether the
payment was made by Randy Baumgarten. Alvarado testified
that after returning to work, he asked the latter to reimburse
him for parking. Initially, Alvarado testified that ‘‘Randy
Baumgarten loaned me money for the parking lot, for the
money I paid for the parking lot’’ but then exonerated the
latter, testifying that Mike Marco, the head salesman, gave
him the money. In his prehearing affidavit, dated May 7, Al-
varado averred: ‘‘I went back to the company and Randy
gave me $7 in cash for the cost of parking.’’27
Randy Baumgarten appeared to stumble through this same
incident. This is evident in the following colloquy with Re-
spondent’s counsel:
Q. Did any of those individuals ask you at that time
or anytime for reimbursement of parking fees?
A. Yes. I believe they asked me and they mentioned
what about parking. Mike Marco who works at the
sales counter reached into his pocket and took out the
money and gave them the parking money.
Q. In your presence?
A. I was at my station, though I don’t actually recall
actually seeing him do this, but I heard that he did.
Q. I didn’t actually observe him take the money.
Thus, according to Randy Baumgarten, after he was asked
for the parking fees, the employees, before obtaining his re-
sponse, apparently disappeared from sight, getting the money
from Marco. Alvarado’s attempt to repudiate his affidavit is
rejected. Moreover, based thereon, it is concluded that Randy
Baumgarten, not Marco, paid for the parking. Baumgarten’s
version made little sense. The truth lies in Alvarado’s affi-
davit, and in deeming the assertion therein to constitute pro-
bative, substantive proof, I fully subscribe to the analysis,
precedent and conclusions set forth by Judge Bernard Ries
in Salem Leasing Corp., 271 NLRB 86, 88–90 (1984).
Although this sector of the case is more significant for the
suspicion it casts upon the Respondent’s evidentiary case, I
nonetheless find that the reimbursement of this expense, in
the context of other pecuniary gestures of approbation, also
constituted unlawful assistance violative of Section 8(a)(1) of
the Act.
3. The 8(a)(5) allegations
a. The initial curtailment of negotiations
The Respondent allegedly violated Section 8(a)(5) of the
Act by refusing to meet between April 11 and May 23 to
419LEE LUMBER & BUILDING MATERIAL
28 Just when the parties gave birth to this protocol is the subject
of conflicting testimony. Kasmer testified that it took place on
March 3, in context of a grievance meeting held at the Respondent’s
premises. However, his letter of March 26, indicates that this ar-
rangement was made on February 19, a date consistent with Rick
Baumgarten’s testimony that it occurred in mid-February. Kasmer
avers that his letter was in error, and that the correct date of the
meeting was March 6. As the issue is collateral, it is assumed that
the Respondent accurately portrays the timing of this agreement.
29 The Respondent’s representatives deny that they had seen the
document signed by employees before taking this step. It is with in-
terest that I note that in G.C. Exh. 5, Rick Baumgarten asserted as
fact that the ‘‘petition [had been] signed by a majority of the em-
ployees in the bargaining unit.’’ In any event, Joe LaRosa testified
that after he signed the petition, either Rick or Randy Baumgarten
conducted a meeting stating that the Company had enough names.
Rick and Randy both denied making any such remark. The incident
was not mentioned in LaRosa’s successive prehearing affidavits
given on April 11 and May 19. I do not rely upon LaRosa’s vague,
uncorroborated testimony in this respect. LaRosa also confirmed
that, earlier, when Jorge Alvarado, in his presence reported to Randy
Baumgarten that he had ‘‘all the names,’’ the latter told Alvarado
that he did not want to hear about it.
30 See, e.g., AMBAC International, 299 NLRB 505 (1990); Hearst
Corp., 281 NLRB 764 (1986).
negotiate a new contract. The material facts surrounding this
claim are virtually free from dispute. Moreover, the suspen-
sion of renewal negotiations was unaccompanied by objec-
tive evidence that the Union no longer represented a major-
ity.
As indicated, the first contract in this bargaining unit was
scheduled to expire on May 25. In anticipation thereof, the
Union on February 1, wrote the Respondent requesting a ne-
gotiation date. (G.C. Exh. 3.) There was no written response.
Subsequently, the parties agreed to meet on Wednesdays at
alternating sites, without specifying a date for actual start of
negotiations.28 As for a date, according to Kasmer’s
undenied testimony, the Employer was to inform the Union
as to its availability. They did not do so, prompting the
Union, by letter of March 26, to suggest a meeting date of
April 11, while stating that the union representatives would
appear at the Employer’s Northside facility at that time un-
less informed otherwise. Here again, there was no evidence
of a reply.
In the meantime, on March 20, the decertification petition
was filed in Case 13–RD–1878. (R. Exh. 5.) On March 29,
the Union filed unfair labor practice charges alleging, inter
alia, that the Employer violated the Act by ‘‘sponsoring or
assisting in the filing of the decertification petition.’’
On April 11, the union negotiating team appeared at the
Respondent’s premises. They were informed that the Re-
spondent declined to meet with them, with the Respondent’s
president, Rick Baumgarten, hand-delivering the following,
previously mailed, statement:
Due to the petition signed by a majority of the employ-
ees in the bargaining unit it is appropriate to defer the
onset of negotiations until your local is shown to still
represent the men after the election. We therefore de-
cline your invitation to bargain at this time. [G.C. Exh.
5.]29
Consistent with the foregoing, Rick Baumgarten informed the
union representatives that he ‘‘felt the election proceedings
should be completed before we began . . . bargaining.’’
On April 30, the Union, over Kasmer’s signature, wrote
Rick Baumgarten again requesting negotiating dates, while
specifying four areas for discussion; namely, improved med-
ical insurance, upgrading certain classifications or jobs, es-
tablishing a training program, and increased wages. There
was no indication that the Union sought to raise the pension-
profit sharing issue. Concerning the events of April 11,
Kasmer stated:
I realize that on April 11th when representatives from
Local 1027 arrived at your Northside facility, you in-
formed them that you felt it was appropriate to defer
negotiations pending the outcome of a representation
petition that was filed. I, however disagree and feel that
it would be beneficial to all involved to negotiate in
good faith now. [G.C. Exh. 8.]
On May 3, the Union filed additional refusal-to-bargain
charges. (G.C. Exh. 1(c).)
On May 8, the Respondent replied by mail, advising the
Union of its willingness to meet on May 23, with Rick
Baumgarten explaining:
While my personal feeling was that negotiations were
inappropriate while an election petition was pending, I
recognize that the law requires us to bargain in good
faith upon your request.
The parties did in fact meet on May 23.
The Employer’s reconsideration, and expressed will to re-
sume renewal negotiations was consistent with statutory obli-
gation. However, whether or not based upon a mistaken in-
terpretation of law, its earlier conduct resulted in an irrep-
arable loss of time. The Respondent, having set the chain in
motion, alone bears responsibility for the failure to meet be-
tween April 11 and May 23.
The refusal to negotiate on April 11, was in clear breach
of the duty under Section 8(d) ‘‘to meet at reasonable times
and confer in good faith.’’ The pending representation peti-
tion was the sole ground upon which the Respondent de-
clared a halt, of indefinite duration, to renewal negotiations.
It claims that it had not seen, and had no idea what percent-
age of the bargaining unit manifested support for such an
election. In Dresser Industries, 264 NLRB 1088 (1982), the
Board held that ‘‘the filing of a decertification petition,
standing alone, does not provide a reasonable ground for an
employer to doubt the majority status of a union.’’ See also
Champ Corp., 291 NLRB 803 (1988); Allied Industrial
Workers v. NLRB, 476 F.2d 868, 881–882 (D.C. Cir. 1973).
It follows, that a withdrawal of recognition or a suspension
of the employer’s ongoing obligation to bargain in good faith
is not privileged on that ground. See, e.g., RCA Del Caribe,
Inc., 262 NLRB 963 (1982).
The Respondent does not argue that the Union actually
lacked majority status on April 11,30 and the record does not
disclose that this was the case. The employee signatures, the
bulk of which were not authenticated, offered in support of
the petition merely expressed a desire for an election, and
therefore did not constitute repudiation of the Union or evi-
dence of loss of majority. See, e.g., NLRB v. Gissel Packing
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 I am not insensitive to the possibility of confusion as between
this documents. This was evident from Kasmer’s own testimony,
where, he, at one point, used the term ‘‘policy’’ when referring to
the plan summary.
32 Baumgarten’s testimony in this respect was weakened when on
examination by counsel for the Charging Party, he confessed to lim-
ited recollection and stated that it was ‘‘possible’’ that Kasmer at the
June 7 meeting asked for the policy itself.
33 As I understood Kasmer’s testimony, when the plan was re-
ferred to the Union’s insurance specialists, they suspected the possi-
bility that the Respondent had contracted for a higher premium but
were actually paying less to subvert the contractual provisions re-
quiring a shift to the union plan. The Union insists that this informa-
tion was not available in the ‘‘statement of the plan [R. Exh. 1],’’
and that, without the policy the Union could not assess the true
cost/coverage ratio, and hence determine whether, under art. IX, sec.
1, the carrier should be replaced by the Chicago and Northeast Illi-
Co., 395 U.S. 575, 584 (1969); Cumberland Shoe Corp., 144
NLRB 1268 (1963).
The Respondent does contend that the Union acquiesced
‘‘in the Company’s initial suggestion’’ that bargaining be de-
layed ‘‘until your local is shown to still represent the men
after the election.’’ (G.C. Exh. 5.) This notion springs from
the fact that the Union ‘‘did nothing from April 11 through
April 30’’ to restore bargaining. In this fashion, the Respond-
ent would foist upon the victim the onus for its own wrong-
doing. The refusal to meet until reestablishment of majority
through an election was communicated to the Union in abso-
lute and otherwise unqualified terms. Having done so, the
Respondent alone shouldered responsibility for removal of its
self-imposed barrier to continued negotiation. It was not the
Union’s role to counsel the Respondent. In short, the
former’s reliance upon statutory remedies was in no way
conditioned upon any requirement that it attempt to persuade
the Employer as to the error in its ways. Equally nonmeri-
torious is the Respondent’s argument that its May 8 letter
‘‘cured’’ any ‘‘technical violation’’ that might have emerged.
On the contrary the Employer’s refusal to meet created a se-
rious breach in the negotiations, deferring the onset of nego-
tiations to May 23, a hiatus whose impact was aggravated by
Rick Baumgarten’s admission that the parties had reached
agreement ‘‘on virtually all outstanding issues by the end of
June.’’
Accordingly, and, even were there no evidence that the
Respondent, in other particulars, unlawfully inspired or con-
tributed to the decertification activity, the Respondent’s ac-
tion in foreclosing negotiations between April 11 and May
23 was not legitimately grounded and constituted a refusal to
bargain violative of Section 8(a)(5) and (1) of the Act.
b. Alleged refusals to provide information
(1) Preliminary statement
Perhaps the hardest fought issue in this proceeding derived
from 8(a)(5) allegations pertaining to the Respondent’s fail-
ure to provide requested and relevant information.
The Union’s requests pertained to two areas, health insur-
ance and profit sharing. The Chicago and Northeast Illinois
District Council of Carpenters, with which the Union is af-
filiated, maintains its own health and welfare and pension
plan. In the 1988–1989 negotiations, the Union sought cov-
erage under both plans. However, it did not succeed, and,
pursuant to the recently expired collective-bargaining agree-
ment, employees continued to participate in the Employer’s
health and retirement programs. The Employer does not spe-
cifically challenge relevance, but argues that it made returns
as per each request and ‘‘the Union led the company to be-
lieve that its responses were sufficient, and that it was not
necessary for the Company to provide any further informa-
tion on insurance or profit sharing thereafter.’’
(2) Health insurance
The complaint in Case 13–CA–29377 alleged that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by fail-
ing to provide a copy of the current health and life insurance
policies, including complete cost information.
Health insurance was mentioned specifically by the Union,
first, in its letter of April 30, and again at the May 23 bar-
gaining session as an appropriate subject for ‘‘upgrading’’
during renewal negotiations. (G.C. Exh. 8.) As for the infor-
mation request, the Union’s letter of March 26, which later
was renewed by letter dated May 22 stated:
We would . . . request a copy of the current insurance
policy, both health and life including complete cost in-
formation. We would also request any other information
that you wish to provide at this time that may reflect
on the contract renewal. [G.C. Exh. 10.]
It is undisputed that the Employer never provided the ac-
tual policy issued by the carrier. It is also undisputed that
cost data was provided by the Respondent, but, according, to
the General Counsel, the return was incomplete, hence, offer-
ing further substantiation to the 8(a)(5) allegation.
The 1988 negotiations and the ensuing contract provide
understanding of the Union’s interest in that information.
Thus, those negotiations produced in article IX, section 1, the
following accommodation:
At such time when and if the Employers [sic] hourly
rate of health insurance premiums, equals or exceeds
the hourly rates of the Chicago and Northeast Illinois
District Council of Carpenters Health Insurance Fund,
said employer will affiliate with the Chicago and
Northeast Illinois District Council of Carpenters Health
Insurance Fund.
The Respondent suggests that, based upon the Union’s
posture, it in good faith was led to believe that the com-
prehensive summary of the plan, in the form a the carrier’s
health insurance booklet (R. Exh. 1), satisfied this request.
Thus, Rick Baumgarten testified that it was his belief that the
plan summary was in fact the insurance policy, and further
that he was unaware of any other document possessed by the
Company that might fit that description. At that point, in his
mind, a distinction between the informational guide and the
policy did not exist.31 Baumgarten insists that he was first
disabused of this misunderstanding while preparing for the
trial, well after the withdrawal of recognition.32
Credibility is determinative here. Kasmer acknowledged
that the booklet was furnished and was a basis for discussion
at the June 7 negotiating meeting. However, in contrast with
Baumgarten, he insists that the Company was at that time
and on several other occasions informed that ‘‘we needed the
policy itself because the costs did not justify the cov-
erage.’’33 The policy was not provided at the June 25 meet-
421LEE LUMBER & BUILDING MATERIAL
nois District Council of Carpenters Health Insurance Fund. Kasmer
also testified that he wanted documentation from which the Union
could verify the credibility of the carrier. He could not explain how
the policy would throw light on this matter, nor did he identify other
documentation sought in this connection. Indeed, the probabilities
suggest that the Respondent was not possessed of any such informa-
tion. In any event, the matter was neither alleged, nor fully litigated.
34 The testimony of Bill McDaniel, a union business representa-
tive, was offered to corroborate Kasmer. He acknowledges that the
informational booklet was turned over to the union’s insurance rep-
resentative, who advised the union negotiators that the actual policy
was necessary to make an accurate cost assessment. McDaniel, how-
ever, did not state unambiguously that, a specific request for the pol-
icy was addressed to the Respondent during any bargaining session
after June 7.
35 In so finding, I reject the General Counsel’s assertion that a
transcript of sectors of the May 23 meeting (R. Exh. 8(b)) substan-
tiates that the Employer was informed at that time that ‘‘cost infor-
mation’’ would be referred to the Union’s insurance experts for eval-
uation. I also reject the Respondents’ assertion that the transcript
confirms either the Union’s disinterest or satisfaction with all infor-
mation provided. In viewing that document as inconclusive in this
latter respect, I have not overlooked that the meeting in question oc-
curred after the Union on May 3 filed unfair labor practice charges
based upon a failure to furnish information. (G.C. Exh. 1(c).) How-
ever, as the material requested was relevant, the Employer was obli-
gated either to return the data or secure a clear, unmistakable, care-
fully tailored statement from the Union that it abandoned its claims
for the information. Something less, including a good-faith interpre-
tation of the Union’s stance, would not excuse a failure to effect a
full and complete return.
36 The witnesses to what transpired at the negotiating session were
not regarded as particularly reliable, and I have not credited either
side down the line. Although the ultimate resolutions turn on several
factors, the shift parallels burden of proof, as neither Rick
Baumgarten, for the Respondent, nor Kasmer and McDaniel for the
General Counsel were considered as effective vehicles for that pur-
pose, thus, causing a determinative proof failure.
37 The Respondent did furnish paid bills reflecting premiums paid
for health and dental insurance. Although the precise submission
made during the negotiations could not be replicated by available
data, that which was submitted in evidence as R. Exhs. 2(a) and (b)
and 4 are ‘‘representative and typical of what the union was given.’’
38 This argument apparently was unresponsive to the Union’s posi-
tion which apparently was predicated upon coverage defined in the
summary plan.
ing, and, according to Kasmer, the Union again stated that
it was necessary. He avers that the Respondent indicated that
the policy would be forthcoming.34
As to the essentials, Kasmer’s testimony seemed the more
probable. I believe that the Union was concerned about the
cost relationship between the Union’s plan and that spon-
sored by the Company, and that the policy, not the plan sum-
mary, would be the document most likely to detail the pre-
miums.35 Both documents were necessary to evaluate the
benefit/cost ratio, and to allay the possibility that actual ex-
penses were hidden so as to perpetuate the existing plan.
Based upon his credited account,36 it is concluded that the
Respondent violated Section 8(a)(5) and (1) of the Act by
failing to provide the Union a copy of its policy with Home
Life Insurance Company.
Concerning cost information, Kasmer conceded that on
June 7 cost data was produced by the Employer. (R. Exh.
2(b).)37 The sufficiency of that tender is brought into ques-
tion by vague references on the record to the Respondent’s
use of self-insurance in certain unspecified areas apparently
where their was no coverage under the existing plan. As in-
dicated above, the Union, after consultation with its internal
insurance representative, argued at the bargaining table that
the coverage provided was too great for the limited cost. To
this, Rick Baumgarten advised that this was not the total cost
and the Respondent on a self-insured basis was underwriting
a part of the cost.38 Rick Baumgarten agreed that a portion
of the medical benefits not covered by the insurance carrier’s
program was provided by the Respondent on a self-insured
basis. He states that he did not understand the finances con-
cerning this arrangement, even when received ‘‘long after-
wards.’’ There is no indication that this ‘‘information’’ ex-
isted in the form of data. It may not have, for, the uncovered
risk could have been financed on a pay-as-you-go basis,
without prior claim experience. In this respect, Rick
Baumgarten declared that it was possible that the supple-
mental self-insurance program was unfunded. In any event,
he denied any understanding of just how this risk was fi-
nanced, and believably testified that his inquiries concerning
the cost of this feature failed to turn up any information.
While Baumgarten’s explanation seemed entirely credible,
on the face of his testimony, the possibility remains that un-
disclosed health costs were sustained by the Respondent
under the contractual health plan. In other words, the return
made by the Respondent might well have been incomplete.
By virtue of the expired collective-bargaining agreement, the
cost factor determined whether the Union plan would replace
the existing plan. The Union’s request for cost data was en-
tirely relevant, and as an element thereof, self-insurance
costs, whatever the form, were an incremental element of the
Union’s request. A return was required under the Act, unless
the Respondent could demonstrate that the information did
not exist, or that it was physically unattainable. The Re-
spondent’s proof fails to tie down the issue, and leaves the
matter in an enigmatic state. Having failed to meet its bur-
den, the Respondent violated Section 8(a)(5) and (1) by fail-
ing to provide cost data defining the financial burden as-
sumed in consequence of its own coverage of certain health
risks.
(3) The profit-sharing data
The instant 8(a)(5) allegation pertains to the Respondent’s
alleged failure, upon request of the Union, to supply ‘‘a list
of Unit employees participating in Respondent’s profit shar-
ing plan, together with the rate of interest earned by the em-
ployee-participants.’’ This allegation conforms with a written
request made by the Union through letter of May 22. (G.C.
Exh. 10.)
In their respect briefs, neither the General Counsel nor the
Charging Party fault the Respondent’s return under these par-
ticulars. Indeed, Rick Baumgarten testified credibly and basi-
cally without contradiction that at the May 23 session, the
Union indicated that they ‘‘had reason to believe that we had
more than one profit-sharing plan or that there were different
rates for different people in different positions in the com-
pany.’’ Baumgarten disabused the Union of this notion, stat-
ing that the only plan in effect was that previously given to
the Union. He identified the trustee that possessed the funds
and explained that the interest was distributed on a pro rata
basis. He described the formula used in calculating each par-
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 Business Representative McDaniel admitted that the profit-shar-
ing plan, in its only available form, had been delivered to the Union,
as well as a verbal, detailed description of the formula or calcula-
tions made in reckoning each employee’s entitlement.
40 As indicated, the Union’s statement that this was the case, has
been construed as focusing exclusively upon the explanations actu-
ally provided by Baumgarten, with no intention to waive other docu-
mentation that had not been provided.
ticipant’s entitlement. Kasmer testified that the Union was
advised that the administrator of the trust had changed, and
that the new trustee was in the process of revising the docu-
mentation concerning the plan, but that it would be delivered
when available. There is no evidence that this revision had
been completed at any time prior to, or contemporaneous
with these negotiations.39 The tape of that meeting indicates
that at the close of the session, the Union expressed satisfac-
tion, while declaring no need for further information in this
respect.40
Although the proponents of the complaint offer not a clue
that this was the case, the record appears to establish that the
May 22 demand for a list of participants, facially, was not
fulfilled by the Company’s June 15 submission of a list of
current employees, with dates of hire and rates of pay. (R.
Exh. 9.) Baumgarten testified that apparently in 1989 unit
employees voted to accept the Company’s profit-sharing plan
over the Union’s retirement plant. Therefore, the assumption
is that all unit employees, who had met basic eligibility cri-
teria, were in this category except those hired since May 17,
1989. In other words, those employed on the effective date
of the contract, were grandfathered, by choice, under the Re-
spondent’s preexisting profit-sharing plan. On the other hand,
new employees were to be covered by the District Council’s
pension program. The list furnished by the Respondent in-
cluded only one employee, Juan L. Santana, who was subse-
quently hired, and therefore should have been carried under
the Union’s pension program. The listing actually provided
did not indicate that this was the case. The Union, unambig-
uously requested and had a right to specific information
which would acknowledge whether the Respondent was fol-
lowing the contractual formula. The failure to provide the
listing violated Section 8(a)(5) of the Act.
Apart from the above, it appears that, to the proponents of
the complaints, on profit sharing, an unalleged issue has now
become the cornerstone of the case against Respondent.
Thus, according to Kasmer, the Union, at the June 7 negoti-
ating meeting, also inquired as to whether different employ-
ees were receiving different interest rates, and requested a
statement as to the amounts held in each individual account.
The latter never was made the subject of a written request.
The failure to provide this information is not mentioned in
either complaint, nor was it the subject of any attempt to
amend. Kasmer relates that the data was necessary in light
of allegations by employees that different people were treat-
ed differently under the plan. The need for the information,
as he relates was reiterated at the negotiating session on June
25.
Baumgarten denied that the Union ever specifically re-
quested the individual accounts. He testified that the Union
at the May 23 meeting expressed awareness that employees
annually receive handwritten reports on their profit sharing.
He acknowledged that this was the case, except that, under
the present practice, they now receive a computer printout,
revealing the value of the plan, the company contribution, the
earnings for the prior year from investments and forfeitures,
and the individual employee’s share. The Union, according
to Baumgarten, seemed quite satisfied with that explanation,
and according to his recollection, at the conclusion of the
May 23 meeting he asked if the Union wished any additional
information, only to receive a negative response.
The tape of the session, though not totally complete, tends
strongly to corroborate Baumgarten. It includes extensive dis-
cussion of employee accounts, but does not disclose a clear
request on behalf of the Union that they be provided.
In this instance, Baumgarten is given benefit of the doubt.
The accounts themselves were pivotal to any claim of dis-
crimination as between participants. A request for this data,
if intended, easily could have been phrased in unmistakable
language, and I am puzzled by its omission from the Union’s
written information requests. Moreover, considering the state
of the pleadings, and the tenor of the dialogue reflected by
the tape of the May 23 meeting, as well as testimony by
Union representative Bill McDaniel that such a request was
made at the May 23 meeting, in this instance, the balance
of probability tilted against Kasmer. I reject the testimony of
Kasmer and McDaniel in this respect and find no credible
basis for concluding that the Union ever requested the indi-
vidual accounts. Accordingly, the Respondent did not violate
Section 8(a)(5) and (1) of the Act in that respect.
c. Termination of the relationship
(1) Decertification activity: the second wave
After bargaining resumed on May 23, negotiation contin-
ued until June 23. During this period, in July, another peti-
tion was circulated for signature of employees who wished
to rescind union representation. The evidence does not speci-
fy any supervening development that might have prompted
this resurgent employee attempt to eliminate the Union. The
document was inscribed as follows:
With this document and signatures we, the Millshop
employees of Lee Lumber and Building Material Cor-
poration Located at 633 West Pershing Road, Chicago,
Illinois, declare that as of July 3rd, 1990 will not con-
tinue to be represented by any union, institution or coa-
lition.
By our own conviction and without durest [sic] of
any kind by anyone, we hereby decertify Carpenters
Union Local number 1027, who’s [sic] representative
is: James Kasmar [sic]. [G.C. Exh. 17.]
Alvarado, the signatory to the decertification election peti-
tion, which he filed earlier in March, testified that he drafted
the above document, virtually without assistance, knowing
what to include because, as he put it: ‘‘I worked on the Su-
preme Court of Costa Rica.’’ Some 12 signatures, including
that of General Foreman Victor Barba were solicited and ap-
pended to that document between July 2 and July 9.
Alvarado testified that, in contrast with the March petition,
he knew that it was not necessary to take this document to
the Board because earlier he had asked Ricky Baumgarten
how to decertify the union and, in an open meeting with
‘‘everybody,’’ the latter replied: ‘‘just sign the paper if you
guys—or do whatever you want to do, but just sign the pa-
423LEE LUMBER & BUILDING MATERIAL
41 Barba, apparently because he had, in the past, performed pro-
duction work, was included to the contract unit by agreement of the
parties. He is exempted from union security, and his name does not
appear on the contractual wage listing, but is on the seniority list.
(G.C. Exh. 2.)
42 Obviously, Randy Baumgarten did not, peremptorily, reject Al-
varado upon learning that the proffered document was related to the
Union. This time he took a deliberative approach, calling his brother
for advice. This contrasted with his posture in March, when he
waived his arms across his body as a gesture underscoring his inter-
est in avoiding any knowledge of antiunion activity. Baumgarten
when asked to explain this difference drew a distinction between
employees stating that he wanted to show management a document,
as they merely did in March, and employees stating they wished to
give management a document, as was the case in July. Moreover,
his entire response suggested that he was not addressing his imme-
diate reaction, but rather was explaining why he read the latter docu-
ment, but not that tendered in July, a difference he attributed to his
brother’s direction. My suspicion was no less than in the case of
Alvarado’s claim that his experience with the Supreme Court of
Costa Rico enabled him to alone draft the second petition. There is
every reason to believe that Randy Baumgarten was not taken by
surprise at the document, since, as Alvarado had testified, his broth-
er, Rick, had previously advised Alvarado to submit it to manage-
ment.
43 On cross-examination, Randy Baumgarten could not recall
whether at the time he noticed that it included the signature of Vic-
tor Barba.
pers and give it to me, and I take care of the rest.’’ Alvarado
testified that he took the signed petition to Lee Baumgarten,
the father of Rick and Randy, who upon learning that it con-
cerned the Union, stated that he did not want to see it, refer-
ring Alvarado to Ricky. However, because Randy was avail-
able, Alvarado gave the petition to him.
(2) Victor Barba’s involvement
The complaint in Case 13–CA–29619 alleges that the Re-
spondent violated Section 8(a)(1) through Barba’s having
signed this petition. Barba, an admitted statutory supervisor,
was not implicated in any other misconduct in connection
with any sector of the decertification activity.41 Santana, who
had previously declined to sign, testified that he noticed Vic-
tor Barba’s signature on that document, when asked to sign
a second time. This time, he reversed himself, electing to
sign. Santana did not relate that he was influenced to sign
because of his observation of Barba’s signature.
In terms of authorities, the General Counsel and the
Charging Party leave me to my own devices on this issue.
They cite not a single case supportive of the notion that a
supervisor’s signature on a document repudiating a union
constitutes a per se violation of the Act. The Respondent, on
the other hand, apparently was more diligent, having located
a case which is directly on point.
It is true that, under the precedent, Barba’s signature could
not be counted toward the loss of majority. Superior Bakery,
297 NLRB 182 (1989). However, as observed by the Re-
spondent, the Board has held that the signing, by one or
more supervisors, of a document repudiating a union does
not violate the Act, even if this occurred before a majority
had appended their signatures. Thus, in Indiana Cabinet, 275
NLRB 1209, 1219 (1985), the Board approved dismissal of
a similarly grounded 8(a)(1) allegation where Judge Bernard
Ries concluded:
[T]he mere signing of such a petition even by a full-
fledged statutory supervisor is not likely to have a suf-
ficiently coercive effect on the employees who are sub-
sequently asked to sign so as to invalidate the petition
itself as a basis for the withdrawal of recognition.
The 8(a)(1) allegation in this respect is dismissed.
(3) The withdrawal of recognition
A negotiating session was scheduled for July 3. The night
before, Rick Baumgarten telephoned Kasmer indicating that
there would be no meeting the next day because Randy
Baumgarten had just reported that ‘‘we have physical evi-
dence that the employees didn’t want the union.’’ The Union
also was advised, in writing, as follows:
Lee Lumber has just received physical evidence that
your union is no longer the representative of the Lee
Lumber millshop workers. As such it would not be ap-
propriate or proper for us to meet tomorrow for the pur-
pose of collective bargaining. [G.C. Exh. 13.]
This did not deter the union representatives. On July 7 they
reported in the interest of resumed bargaining. However,
Rick Baumgarten again informed them that the Company had
received evidence that the Union no longer represented a ma-
jority, and hence it would no longer meet. The Union in-
sisted on continued negotiation, but the Respondent declined.
The Respondent’s position was clarified by letter dated
July 12, as follows:
Following up our letter of July 2nd, this confirms that
due to the decertification petition signed by a majority
of the bargaining unit received by us, that effective
with our correspondence July 2nd, we withdraw rec-
ognition of your union as representative. [G.C. Exh.
14.]
According to Randy Baumgarten, these measures stemmed
from the fact that in early July, Alvarado came to his office
area, suggesting that they retire to a more private locale.
They did and Alvarado stated that he had another petition
signed by a majority of the men. Before looking at the docu-
ment, Baumgarten called Rick, telling him what had tran-
spired.42 Rick told him to take the document and report what
it said. Randy read it to Rick over the phone. After reporting
that it contained nine signatures, Randy was told to keep the
document.43
Rick Baumgarten testified that he learned of the petition,
by telephone, from his brother, Randy, who indicated that
Jorge Alvarado possessed a document that he wanted to give
him which pertained to the Union. Randy inquired as to what
he should do, whereupon Rick advised him to examine it and
relay its content. He specifically asked how many employees
had signed. Rick Baumgarten then telephoned his attorney.
After doing so, he informed the Union that he possessed
physical evidence that it no longer represented the workers
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 The day after initially presenting the document to Randy
Baumgarten, Alvarado requested its return because others were inter-
ested in signing. Randy obliged.
45 On the other hand the unlawful refusals to furnish information
were technical violations which had no causative influence upon loss
of majority. Noncompliances were marginal. The General Counsel’s
own description of the relevance of the health policy and the list of
profit-sharing participants establishes that their utility was confined
to the Union’s interest in examining the Respondent’s adherence to
the old contract, as distinguished from any particularized demand in
the renewal negotiations. The unavailability of such information was
a behind-the-scenes affair which, if known by employees, was a
minor matter of negligible concern. Reasonably viewed, these unfair
labor practices, neither contributed to a delay in reaching an ultimate
accord, nor otherwise contributed to employee discontent. Deblin
Mfg. Corp., 208 NLRB 392, 401 (1974). 46 C. F. Eckert, Inc., 301 NLRB 868 (1991).
in the shop. He denied actually seeing the document until
about weeks later.44
(4) Analysis
The General Counsel does not dispute that the decertifica-
tion petition was signed by a majority and as such con-
stituted objective evidence of loss of majority. Instead, the
legitimacy of the Respondent’s termination of the bargaining
relationship is contested under a wide body of precedent pre-
cluding such action in the context of prior unfair labor prac-
tices ‘‘of such a character as to either affect the Union’s sta-
tus, cause employee disaffection, or improperly affect the
bargaining relationship itself.’’ Guerdon Industries, 218
NLRB 658, 661 (1975); Helnick Corp., 301 NLRB 128
(1991). Yet, it is also true that ‘‘an employer may avoid a
bargaining order by showing that the unfair labor practices
did not significantly contribute to such a loss of majority or
to the factors upon which a doubt of such majority is
based.’’ NLRB v. Nu-Southern Dying, 444 F.2d 11, 15–16
(4th Cir. 1971).
Here, the bargaining relationship was terminated against a
background of unremedied illegalities which offer the most
likely cause of the Union’s loss of majority. First and fore-
most is the convincing evidence that the Respondent pro-
ceeded with that end in mind when it interfered with the in-
ternal relationship between the Union and represented em-
ployees by first fanning the flames of dissension, then pro-
viding information and pecuniary support to those who
would further the cause of decertification. Once its intended
result had been realized, the Respondent unlawfully caused
a 6-week delay in contract negotiations, a step which in light
of the status of negotiations as of July 3, reenforced the de-
bilitating effects of the earlier misconduct. Thus, considering
the Employer’s own testimony, that the parties ‘‘had reached
almost complete agreement by the time the employees di-
rectly informed the Company of their clear desire to be free
of the Union,’’ it is entirely possible that this hiatus not only
contributed to renewed frustration with collective bargaining,
but prevented the Union from neutralizing doubts and restor-
ing confidence among represented employees by offering the
tangible assurances evident from a new contract. Accord-
ingly, the Respondent failed to meet its burden of disasso-
ciating its unlawful conduct from the employee defections in
July, and, hence, is not free to rely upon that factor as a
means of evading its duty to bargain in good faith.45 The Re-
spondent violated Section 8(a)(5) and (1) of the Act by on
July 3 withdrawing recognition from the Union.
d. Derivative violations
Consistent with the withdrawal of recognition, the Re-
spondent subsequently discontinued payments to the Chicago
and Northeast Illinois District Council of Carpenters Appren-
tice and Training Program,46 declined to honor check-off ar-
rangements, and cancelled visitation rights to union rep-
resentatives. In addition, wage increases were granted to em-
ployees in the bargaining unit. There is no dispute that these
steps were taken without notice to or bargaining with the
Union. As the Respondent was, at the time, under a con-
tinuing obligation to bargain in good faith as to these mat-
ters, its unilateral action in each of the above particulars vio-
lated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
encouraging and assisting employees in the filing of a decer-
tification petition by initiating such conduct through remarks
disparaging the Union’s representational stance, and, in that
context, providing information as to how and when to file a
election petition, together with reimbursement for wages and
parking fees that would otherwise be lost by employees who
acted on that advice.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to meet with the Union because a decerti-
fication petition had been filed, by refusing to provide re-
quested information concerning the existing profit-sharing
and health insurance plans, and by withdrawing recognition
from the Union as the exclusive collective-bargaining rep-
resentative of employees in the following appropriate unit:
All full-time, part-time, temporary, or seasonal produc-
tion and maintenance foremen, leadmen, journeymen,
millmen, apprentices and all other employees engaged
in work covered by the ‘‘Occupational Jurisdiction of
the Union (Mill-Cabinet-Industrial Division),’’ includ-
ing, but not limited to in-plant millwork production;
fabrication of cabinets, tables, desks, doors, display fix-
tures, plastic laminates and veneers of all types used in
the manufacture thereof; component parts; installers of
hardware; gluers, scrapers of glue, sprayers; handlers of
materials to and from clamp; benchwork assemblers,
lay-out, operators of power machinery and hand power
tools relating thereto.
5. The Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally, without notice to or negotiating with the
Union, discontinuing checkoff and remittal of dues to the
Union, discontinuing payments to the Chicago and Northeast
Illinois District Counsel of Carpenters Apprentice and Train-
ing Program, discontinuing union visitation, and granting
wage increases to unit employees.
425LEE LUMBER & BUILDING MATERIAL
6. The above unfair labor practices had an affect upon
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
It shall be ordered that the Respondent recognize and bar-
gain with the Union in good faith as exclusive representative
of employees in the appropriate collective-bargaining unit.
The Respondent having unilaterally declined to remit dues to
the Union and having discontinued payments to the Chicago
and Northeast Illinois District Council of Carpenters Appren-
tice and Training Program, shall be ordered to pay all such
delinquencies from the date of its unlawful action, with inter-
est as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). It shall also be ordered that the Re-
spondent continue such payments into the indefinite future,
curtailing them only when and if its obligations in those par-
ticulars are expiated in accordance with lawful, statutory re-
quirements. Finally, the Respondent shall be ordered to fur-
nish the Union with a copy of its health insurance policy and
with a list of all unit employees who participate in its profit-
sharing plan.
[Recommended Order omitted from publication.]