Norco Products

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1416 (N.L.R.B. 1988)

1416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
USA McDonald Corporation d/b/a Norco Products
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 2, AFL-CI0. 1 Cases
19-CA-18986 and 19-CA-19184
31 May 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On January 12, 1988, Administrative Law Judge
Jay R. Pollack issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions 3 and to adopt the recommended
Order.
1 The name of the Charging Party has been amended to reflect the fact
that effective November 1, 1987, the Teamsters International Union was
readmitted to the AFL-CIO
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the fmdings.
At various points in his decision, the judge referred to the Respond-
ent's president, James McDonald, as having stated that he would retain
the employees who had voted for the Union This was an inadvertent
error as the record shows that McDonald stated he would retain the em-
ployees who voted against the Union
3 Member Cracraft does not adopt the judge's reliance on Peat Mfg.
, Co., 261 NLRB 240 fn. 2 (1982), for the proposition that an employer
must notify the union and "offer to bargain" before implementing a mate-
rial change in a mandatory subject of bargaining. She finds the quoted
language of Peat Mfg. to be inconsistent with other Board cases holding
that an employer is not obligated to make an affirmative offer to bargain.
In Medicenter, Mid-South Hospital, 221 NLRB 670, 678-679 (1975), for
example, the Board adopted the judge's decision finding applicable to
cases involving employer unilateral changes the language used by the Su-
preme Court in the early case of NLRB v. Columbian Enameling &
Stamping Co., 306 U.S. 292, 297-298 (1939), that "the statute does not
compel the employer to seek out his employees or request their participa-
tion in negotiations for purposes of collective bargaining . . To put
the employer in default here the employees must at least have signified to
respondent their desire to negotiate" In Medicenter, the governing test
was stated as follows (221 NLRB at 676). "When an employer notifies a
union of proposed changes in terms and conditions of employment, it is
incumbent upon the union to act with due diligence in requesting bar-
gaming" In fact, in Methcenter the employer did not formally notify the
union of its intent to change employment conditions and did not formally
offer to bargain Nevertheless, the unilateral change allegation of the
complaint was dismissed on the ground that the union had waived its
right to bargain over the proposed change. The critical facts showed that
the union received actual notice of the proposed change, but merely pro-
tested the contemplated action without ever requesting bargaining, even
though the employer stood ready to bargain Medicenter was explicitly
followed 2 years later in a case with very similar facts Clarkwood Corp.,
233 NLRB 1172 (1977)
288 NLRB No. 151
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, USA
McDonald Corporation d/b/a Norco Products,
Missoula, Montana, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
Inasmuch as Mechcenter and Clarkwood are based on a Supreme Court
decision, Member Cracraft considers them to be more persuasive author-
ity than Peat Mfg relied on by the judge here This disagreement with
the judge does not affect the result in this case, however, because here
the Union did not receive sufficient advance notice of the layoff to pro-
vide It with an adequate opportunity to bargain.
Members Babson and Johansen note that the language, "offer to bar-
gain" as used in Peat Mfg., is dictum, and they find it unnecessary to pass
on its viability in the instant case, as the Respondent in any event gave
the Union insufficient notice of the layoff.
Patrick F. Dunham and Scott F. Burson, Esqs., for the
General Counsel.
Tommy B. Duke, Esq., of Denver, Colorado, for the Re-
spondent.
Timothy J. McKittrick, Esq., of Great Falls, Montana, for
the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard
these consolidated cases in trial at Missoula, Montana, on
September 29 through October 2, 1987. The cases arose
as follows. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 2 (the Union) filed a charge in Case
19-CA-18986 against USA McDonald Corporation
d/b/a Norco Products (Respondent) on March 12, 1987,
Following investigation thereof, the Regional Director
for Region 19 issued a complaint and , notice of hearing
against Respondent. On June 12, the Union filed a
charge against Respondent in Case 19-CA-19184. There-
after, on July 23, 1987, the Acting Regional Director
issued a consolidated amended complaint in both cases.
The charge in Case 19-CA-19184 was amended on July
23 and the consolidated complaint was amended on
August 20, 1987, and again at trial.
All parties were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent. Based on
the entire record and from my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a contract manufacturer of school and
institutional furniture with a facility located m Missoula,
Montana. During the 12 months prior to issuance of the
amended complaint, Respondent sold and shipped goods
NORCO, PRODUCTS 1417
valued in excess of $50,000 directly to customers located
outside the State of Montana. I find that Respondent is,
and has been at all times material, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
The Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
IL THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
As mentioned earlier, Respondent manufactures school
and institutional furniture in Missoula, Montana. In 1986,
Respondent received financing to construct a new facili-
ty in the Missoula area and construction commenced.
The initial tearing down of equipment at Respondent's
existing facility preparatory to the move to the new fa-
cility began in September 1986. In December 1986, some
employees began moving to the new facility. The move
of equipment and employees to the new facility, howev-
er, was not completed until the end of January 1987.
Thus in December 1986 and January 1987, Respondent
was in a transition period and utili zing two facilities.
The Union commenced a campaign to organize Re-
spondent's employees in January 1987. On January 14 or
15, James McDonald, Respondent's president, received
notice of the Union's organizing attempt. On January 15,
the Union also filed a representation petition in Case 19-
RC-11519. On February 25, the Regional Director con-
ducted a secret-ballot election at which the majority of
the ballots were cast in favor of representation by the
Union. On March 5, the Regional Director issued a certi-
fication of representative indicating that the Union had
been selected the exclusive bargaining representative of
Respondent's production and maintenance employees.'
The instant case arises out of Respondent's campaign
and reaction to the Union's successful organizing cam-
paign. The complaint alleges that during the representa-
tional campaign, Respondent threatened employees with
reprisals if the Union were selected as the exclusive bar-
gaining representative. Further, the General Counsel
contends that Respondent discriminatorily laid off em-
ployees after the Union won the representation election
and failed to recall Richard Chapdelaine, Joseph Bauer,
and Jerald Nordhus, three union adherents, from layoff.
Finally, the complaint alleges that Respondent failed to
bargain in good faith with the Union regarding the lay-
offs and certain unilateral changes contained in a newly
issued employee handbook, relating to wages, hours, and
working conditions.
B. Layoffs in December 1986 and January 1987
Richard Chapdelaine, an employee of Respondent, met
with the Union in early January 1987. The Union set up
a meeting with employees and on January 14, 1987, the
Union sent Respondent a letter telling of its organizing
plans and naming its in-plant organizing committee. The
1 All production and maintenance employees employed at Respond-
ent's Missoula, Montana facility, but excluding office clerical employees,
guards and supervisors as defined by the Act.
employees listed as being on the committee were all the
production and maintenance employees with the excep-
tion of three or four employees. Respondent received the
Union's letter on January 17. On January 19, approxi-
mately 12 employees were laid off, effective January 16,
including Chapdelaine, Joseph Bauer, and Jerald Nord-
hus. Although the timing of the layoff is suspicious, the
General Counsel concedes that the January 1987 layoffs
were lawful. 2 Respondent's business was seasonal, there
had been layoffs in December and with the move to the
new facility substantially completed, more layoffs were
necessary.
The General Counsel contends that Chapdelaine,
Bauer, and Nordhus were not recalled until after the
unfair labor practice charges were filed because of their
union activities. Chapdelaine had initiated the union or-
ganizing drive and had handbilled for the Union after his
layoff. Bauer had been active in a 1985 campaign involv-
ing another union and also handbilled with Chapdelaine
after his layoff. By the time Respondent began recalling
employees from layoff in May 1987, the union activities
and sympathies of Chapdelaine and Bauer were known
to Respondent. Nordhus had also been active in the 1985
campaign and attended two bargaining sessions between
Respondent and the Union after his layoff.
C. The 8(a)(1) Allegations
On notification of the Union's organizing campaign,
James McDonald, Respondent's president, began a cam-
paign of his own. Respondent's campaign consisted of
letters to employees, plant meetings, staff meetings, an
open house, and one-on-one meetings between the staff
and employees. The General Counsel does not contend
that any unlawful statements were made to employees in
the campaign letters, plant meetings, open house, or one-
on-one meetings. The General Counsel contends, howev-
er, that Respondent committed independent violations of
Section 8(a)(1) by statements made by McDonald at the
staff meetings, which were attended by office clerical
employees in addition to managers and supervisors.
Lynette Miller, a former data entry clerk, testified that
prior to the February 25 election, McDonald held almost
daily meetings with his staff. The office staff that attend-
ed these meetings included Miller and Teresa Alves,
office clerical employees; Mary Sneddon, sales manager;
Steve Slagle, supervisor; Chuck Knudson, general man-
ager; Roy Jensen, supervisor; and Allen Ball, controller.
According to Miller, during these campaign strategy
meetings, MCDonald stated that the Union would not
work at Respondent's business, that the Union was no
good, and that the Union was out for itself, not for the
employees. McDonald stated on one or two occasions
that if the Union was voted in, he would "lock the
doors;" he would quit this business and start over in
something new. On another occasion, McDonald stated
that if the Union was voted in, the employees would lose
all benefits and vacation pay and would have to start out
2 The timing of the January 19 layoff led Respondent's own supervi-
sors to speculate that McDonald was motivated by antiunion consider-
ations with regard to this layoff.
1418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as brand new employees. On another occasion, McDon-
ald stated that if the Union was voted in, he would lay
off employees and run the plant with supervisors, man-
agement, and only a few employees.
Prior to the election, McDonald stated that if the
Union won, he would make the employees' lives misera-
ble by turning off the heat in the wintertime, turning off
the fans in the summertime, and locking the bathrooms.
The staff was told that if anyone was for the Union, he
or she was not part of the team and might as well get up
and walk out the door.
During one of the campaign meetings, McDonald
called off the names of the employees and discussed
whether he believed that person was a voter for the
Union, an undecided voter, or a voter against the Union.
McDonald gave no reason other than his personal opin-
ion for designating any employee's sympathy as for or
against the Union. McDonald asked the supervisors and
managers to work on the uncommitted voters to obtain
votes against the Union.
In a staff meeting shortly after the election, McDonald
said he would run the plant with managers, supervisors,
and nine employees (five full time and four part time).
McDonald said he would retain the five employees that
had voted for union representation. McDonald said if the
Union got in, it would hold a wildcat strike. To counter
such a strike, McDonald said he would limit sales to pre-
ferred customers and would not go after new sales.
In a meeting shortly after the election, McDonald said
he was resigning as president of Respondent and becom-
ing general manager. McDonald said as general manager
he would evaluate the employees on a daily basis. The
employees would be evaluated on three factors: (1) atti-
tude; (2) performance; and (3) leadership. Based on this
evaluation, McDonald would determine whether an em-
ployee was for or against Respondent.
After the election, McDonald, Allen Ball, and Mary
Sneddon all told Miller that they were expecting certi-
fied mail indicating that the Union was the certified bar-
gaining representative. Miller and Teresa Alves were
told not to pick up certified mail until after the March
layoff, so that the Union could not claim the layoff was
connected to the election results.
Teresa Alves, a former receptionist, also testified that
she attended staff meetings concerning the Union almost
every day in the week prior to the election. According
to Alves, McDonald said the Union would not work at
Respondent's facility. McDonald further stated that he
would negotiate with the Union but would not sign a
contract with the Union. If the Union was voted in,
McDonald said he would "shut the place down." On an-
other occasion McDonald said he would reduce sales in
order to lay off employees. Alves further corroborated
Miller's testimony that McDonald threatened to make
the employees' lives miserable by shutting off the heat in
the winter, shutting off the fans in the summer, and by
locking the bathrooms.
A day or two after the election, McDonald told the
staff that he was not going to sign a contract and he
would reduce sales. McDonald said he would "priori-
tize" the customer base, decide who were the most valu-
able customers, and reduce production to meet the needs
of these customers. He would attempt to restrict produc-
tion to products that were easier to produce, thereby re-
ducing staffing requirements. McDonald said he would
reduce the plant personnel and put some of the staff to
work in the plant. McDonald said he would be function-
ing as general manager, but not resigning as president,
and would spend most of his time in the plant rather
than working in the office. McDonald stated that if any
of the office staff supported the Union, that person
would be terminated because he or she would not be
part of the team anymore.
Alves also corroborated Miller's testimony that she
was instructed by McDonald, shortly after the election,
not to sign for any certified mail. The certification of
election results was not received by Respondent until
March 9. While Miller did not repeat McDonald's re-
marks to any bargaining unit employees, Alves told at
least one employee, Patty Martin, of the threats made by
McDonald.
McDonald's denials of the testimony of Alves and
Miller are not credited. McDonald first denied making
the statements to employees, later denied recalling the
statements, and filially, after leading questions, denied
making the statements. Chuck Knudson, Respondent's
general manager and a stockholder, did not corroborate
McDonald's testimony. Although given several opportu-
nities to deny that McDonald made the statements attrib-
uted to him by Alves and Miller, Knudson simply stated
that he could not recall what McDonald had said. Randy
Richards, a former plant superintendent and production
coordinator, testified that McDonald ran the supervisory
meetings and made a statement to the effect that he
would never sign a union contract. 3 Nordhus, a former
leadman, testified that McDonald made a threat at a su-
pervisory meeting but did not recall when the meeting
was held. The supervisory meetings attended by Nord-
hus and Richards apparently were separate meetings
from the staff meetings attended by Miller and Alves.
Miller was able to hear McDonald speaking at the super-
visory meetings, however, because McDonald often
raised his voice in such meetings and could easily be
heard in the offices just outside his office.
In any event, the credible testimony of Miller and
Alves was not disputed by any witness except McDon-
ald, a witness I found to be less than truthful
As earlier indicated, after the Union won the election,
McDonald informed his staff that he would become gen-
eral manager and evaluate employees on a daily basis.
Based on attitude, performance, and leadership, McDon-
ald would determine whether an employee was "for or
against the company." These statements take on an
added significance because the managers had to evaluate
the staff for the upcoming layoffs. After the election, the
managers were told that they would have to reduce the
staff to five full-time employees and four part-time em-
ployees. McDonald said he would retain the five em-
ployees that had voted for the Union. The managers
worked together and came up with the names of the nine
3 In January 1987, Richards and two supervisors were overheard, by
employee Scott Green, speculating that Respondent's January layoffs
were "probably because of the Union."
NORCO PRODUCTS 1419
employees (five full time and four part time) that would
be retained. McDonald did not change the list given to
him by the managers. Rather, he laid off the remaining
employees and kept those recommended by the manag-
ers. The employees were informed by MCDonald on
March 6 that they were laid off.4
D. The Layoffs of March 6
Approximately 3:30 p.m., 5 on March 6, McDonald
called the offices of the Union and asked to speak with
Al Longoria, business agent. Longoria was out of town.
McDonald left a message with Maxine Wagner that he
was laying off employees and that he wanted the Union
to know.
McDonald testified that the March 6 layoff was
planned in December 1986. According to McDonald,
based on the list of orders, sales backlog, inventory, and
shipping requirements, it was clear in December that lay-
offs were necessary in January and more drastically in
February 1987. According to McDonald, he did not im-
plement the layoffs before March because he was re-
quested by a Board field examiner to delay the layoffs
until after the February 25 election.6
Layoffs by Respondent are commonplace during the
winter and spring months. Because of the move to the
new plant, Respondent was able to avoid laying off em-
ployees in December and January. Jobs for employees
were created by utilizing production employees for
moving, construction, and maintenance work related to
the tearing down of the old plant, and installation and
construction at the new facility. The installation, con-
struction, and maintenance work lessened in January and
February.
Richards, a former plant superintendent and produc-
tion coordinator, and Miller, a former data entry clerk,
both testified that the layoffs in March 1987 were more
drastic than in the past and required more overtime work
by the managers and supervisors. Respondent's records
reveal the accuracy of Richards' and Miller's observa-
4 The fact that McDonald individually informed each employee of his
layoff was a departure from past practice.
5 I find, based on the credible testimony of Maxine Wagner, a secre-
tary for the Union, and Al Longoria, business agent, that McDonald did
not call the Umon until 3 .30 p m. on March 6 McDonald's testimony
that he called earlier that date is not credited
6 I do not credit McDonald's testimony that he delayed the layoffs
until after the election because of the Board agent's request. The Board
agent did not testify, leading to the inference that his testimony would
have been unfavorable to the General Counsel's case , The inference,
however, would only lead to the conclusion that the Board agent asked
McDonald to delay the layoffs, the question of McDonald's reason for
doing so is not within the knowledge of the Board agent. I do not beheve
that McDonald would so increase his payroll costs simply on the request
of a Government examiner. Moreover, no manager or supervisor for Re-
spondent corroborated this testimony Rather the testimony reveals that a
week after the election the supervisors and managers were instructed to
work on the staffing to be retained after a layoff. There was no testimo-
ny, other than McDonald's self-serving testimony, that layoffs were ne-
cessitated as planned prior to the e Eection. Moreover, as will be seen
below, the evidence establishes that the instant layoffs were more drastic
than in the past and more drastic than normal business practices would
establish. Moreover, prior to the mstant hearing, McDonald gave a state-
ment to the Board agent that indicated that he did not lay off employees
before the election because he expected them to vote overwhelmingly
against the Union and that he wanted the employees to have the opportu-
nity to do so.
tions. In order to continue production with the bare
bones staff left after the March layoffs, Respondent had
to utilize managers and supervisors to keep up with pro-
duction. Overtime hours increased in April Finally, in
May, Respondent began recalling employees from layoff.
Further, the records reveal that in 1986, Respondent
retained more than twice as many production employees
after its spring layoffs. Thus in 1986, Respondent re-
tained the equivalent of 20 full-time employees. In 1987,
Respondent retained the equivalent of eight full-time em-
ployees. Respondent retained only five full-time and four
part-time employees in 1987 despite of the fact that its
sales backlog was higher than the sales backlog in 1986,
which justified retention of 20 full-time equivalent em-
ployees.
E. Recall of Employees
In May, Respondent began recalling employees from
layoff. Nordhus was offered a job in May, prior to the
recall of any employee laid off prior to him. However,
Nordhus was offered construction work rather than pro-
duction work and turned down the job offered. Nordhus
had been doing nonproduction work, related to the
move, prior to his layoff. Bauer and Chapdelaine were
not offered reemployment until July 15 and 17, respec-
tively. Respondent recalled employees laid off prior to
Bauer and Chapdelaine beginning as early as June 8. In
all, five employees were unexplainedly recalled prior to
the recall of Bauer and Chapdelaine. Although the "atti-
tude, performance and leadership" of these five employ-
ees were inferior to Bauer and Chapdelaine in December
1986 and January 1987, they were recalled prior to
Bauer and Chapdelaine in June and July 1987. McDon-
ald gave no credible explanation for this recall proce-
dure. It appears that Respondent's normal practice
would have been to offer work to employees laid off in
January before offering such work to employees laid off
in December.
F. The Handbook
The Respondent has distributed an employee hand-
book since 1979. A revised handbook was distributed to
employees after the Union was certified as the exclusive
bargaining representative. The changes in the handbook
distributed after the election included a no-smoking pro-
vision, which was instituted because of the new facility.
This was previously announced to the employees in Sep-
tember or October 1986. The amount of vacation to be
received based on years of service was modified in 1986
and became effective on January 1, 1987, only as to em-
ployees hired after that date. The third modification re-
lated to a statement concerning the seasonality of the
business. The change in language did not reflect any
change in the established past practice. McDonald testi-
fied without contradiction that the policies and practices
contained in the revised manual were all in effect prior
to January 1987.
McDonald's testifying that the handbook was complet-
ed prior to the Union's certification is not credited.
Alves credibly testified that she was asked by Allen Ball
to type the new employee handbook. The changes in the
1420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
handbook were not completed when Alves left Respond-
ent's employ on March 7. Finally, it is undisputed th4t
the Union received no notice of the new employee hand-
book.
G. The Refusal to Bargain Over Layoffs
After McDonald notified the Union on March 6 of the
layoffs, he did not hear from the Union on March 6, 7,
or 8. On March 9, McDonald prepared letters concern-
ing the layoffs to the 14 laid-off employees and sent
copies to the Union. The Union and Respondent began
bargaining on March 16 at which time the Union con-
tended that the layoffs were illegal and demanded that
the employees be reinstated. Respondent said the layoffs
were not connected with the Union and gave the Union
economic reasons for the layoffs. The Union made no
demand to bargain over the effects of the layoffs. On
July 27, 1987, the Union commenced a strike against Re-
spondent. That strike was still in progress at the time of
the instant hearing.
All of the 14 employees laid off on March 6 were re-
called in June, prior to the strike of July 27, 1987. The
names of the 14 employees are: Montana Boyd, Ron
Butcher, Jim Gates, Scott Green, Kathy Hambley,
Roger Hambley, Richard Harris, Ken Juhrike, Don
Martin, Patty Martin, Kelly Quinn, Steve Rodriquez,
Gary Trimp, and Tom Yelton.
M. ANALYSIS AND CONCLUSIONS
A. Statements to Employees
Based on the credited testimony of Miller and Alves, I
find that McDonald unlawfully threatened to terminate
employees if they supported the Union and told them
they should quit if they supported the Union. San Souci
Restaurant, 235 NLRB 604 (1978); Bell Burglar Alarms,
245 NLRB 990 (1979). Further, McDonald unlawfully
threatened that employees would have to begin from
scratch as if they were new employees. Centre Engineer-
ing, 246 NLRB 632 (1979). McDonald threatened to lay
off all bargaining unit employees except those that voted
for the Company against the Union, in violation of Sec-
tion 8(a)(1). Tendico, Inc., 232 NLRB 735 (1977); Strong
Steel, 233 NLRB 1348 (1977). Moreover, McDonald
threatened less favorable conditions and harder working
conditions if the employees voted for union representa-
tion. Continental Can Co., 282 NLRB 1363 (1987); Bruns-
wick Corp., 282 NLRB 794 (1987).
Respondent argues correctly that the General Counsel
had not alleged nor established any violations at meet-
ings held for employees. Respondent cautioned its super-
visors not to violate the Act in the preelection campaign.
The issue herein, however, is whether statements made
by McDonald at staff strategy meetings are violations be-
cause of the presence of statutory employees such as
Alves and Miller. As indicated earlier I reject McDon-
ald's assertion that the statements were not made and
find that threats in violation of Section 8(a)(1) were ut-
tered both before and after the election.
Although McDonald apparently believed the threats
were privileged because no bargaining unit employees
were present, ignorance of the law is no excuse. Miller
and Alves were clerical employees and there is no dis-
pute that they were employees within the meaning of
Section 2(3) of the Act. See, e.g., Consolidation Coal Co.,
266 NLRB 670 (1983); Giant Food Markets, 241 NLRB
727 (1979); and Easte Inc v. NLRB, 437 U.S. 556
(1978). See also Musicians Local 47 (American Broadcast-
ing Co.), 255 NLRB 386, 390 (1981). The Board has
found protection for employees even though the employ-
er's action was motivated by animosity against the pro-
tected activity of other employees. See Lucky Stores, 243
NLRB 642, 647 (1979). Further, the Board has held that
an employer violates the Act if it retaliates against an
employee based on the union activities of a relative. See,
e.g., Ran, Inc., 218 NLRB 430, 433 (1975).
Hearing the threats and statements of McDonald cer-
tainly conveyed to Miller and Alves that the Respondent
would take unlawful actions to prevent the unionization
of the production and maintenance employees. The infer-
ence would easily be drawn that Respondent would simi-
larly take unlawful action to prevent the unionization of
its clerical employees. Thus, McDonald's conduct would
reasonably tend to inhibit Miller's and Alves' future
union activities. In addition, threats such as those made
by McDonald are likely to be repeated to bargaining unit
employees. In the instant case, Alves told unit employee
Patty Martin of a threat made by McDonald. Miller did
not repeat the threats of McDonald to any unit employ-
ees because she did not wish to threaten anybody by
publishing McDonald's threats.
B. The Layoffs in March 1987
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases
alleging violations of Section 8(a)(3) or violations of Sec-
tion 8(a)(1) turning on employer motivation. First, the
General Counsel must make a prima facie showing suffi-
cient to support the inference that protected conduct was
a motivating factor in the employer's decision. On such a
showing, the burden shifts to the employer to demon-
strate that the same action would have taken place even
in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board's
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399-403 (1983).
For the following reasons, I find that the General
Counsel has made a prima facie showing that Respond-
ent was motivated by a desire to retaliate against its em-
ployees for voting for union representation. First, the
evidence establishes that McDonald made threats to re-
taliate against employees both before and after the elec-
tion. Shortly after the Union won the election, McDon-
ald said he would lay off employees and run the plant
with the supervisors, managers, and only five full-time
employees. He said he would retain the employees that
voted for the Company and against the Union. In speak-
ing of the layoffs, McDonald said he would evaluate em-
ployees on attitude, performance, and leadership. Based
on McDonald's comments about unions, the supervisors
could only conclude that union supporters lacked the
NORCO PRODUCTS 1421
proper attitude, enthusiasm, and leadership required for
retention in the face of such a drastic layoff.
Although Respondent usually bad layoffs each spring,
the testimony indicates that this layoff was retaliatory
and that a smaller number of employees than usual were
retained. Respondent's own records support this conten-
tion.
The burden shifts to Respondent to establish that the
same action would have taken place in the absence of the
employees' protected conduct. McDonald in his testimo-
ny attempted to portray the layoffs as automatic and dic-
tated by the seasonality of sales orders. The layoffs are
highly discretionary, however, involving subjective judg-
ments of timing, future business, productivity, and reallo-
cation of work. McDonald apparently disregarded his
usual procedure of consulting with managers and deter-
mined the timing of the layoff and the number of em-
ployees (five full time and four part time) himself.
McDonald never explained why more employees were
retained in 1986 when the sales backlog was less than in
1987. The managers and supervisors were left with the
decision of which employees to retain. Even in this
regard, McDonald dictated that employees should be re-
tained based on attitude, performance, and leadership.
The supervisors and managers, having been told that em-
ployees who were against the Union were team players
and union supporters were not on the team, may have
very well determined that prounion employees did not
have the desired attitude and leadership qualities. There
is no evidence, however, that the managers did, in fact,
utilize union considerations in making this decision.7
McDonald, having decided to cut the work force to such
a bare minimum, may have caused the managers to disre-
gard any consideration other than work performance.
Having cut the bargaining unit complement so low,
McDonald forced his supervisors and managers to
engage in bargaining unit work and to work overtime in
order to keep up with production.
As mentioned earlier, Respondent has in the past had
seasonal layoffs in the sp -nig. Respondent does have
business justification for a layoff and there is nothing to
suggest that Respondent would not ordinarily have had a
spring layoff. Respondent, however, has not adequately
explained the extent of its layoffs. The evidence estab-
lishes that this layoff deviated from past practice to the
extent that Respondent's managers and staff were re-
quired to do more production work because a smaller
number of production employees than usual were re-
tained. After a few weeks of such acute pressure on the
supervisors, managers, and staff, Respondent commenced
recalling employees. In previous years Respondent re-
tained more employees after its spring layoffs. For exam-
ple, in 1986 Respondent retained more than twice as
many employees even though its sales backlog was lower
than in 1987. Although I cannot find with precision the
number of employees that would have normally been re-
tained, I conclude that Respondent included a greater
"The General Counsel concedes that in retaining employees McDon-
ald did not know who voted for the Union. The General Counsel only
contends that McDonald threatened to retain those five employees who
voted for the Union.
number of employees in this layoff than it normally
would have laid off in retaliation for its employees'
voting for union representation. The difficult question of
determining the identity of the employees to whom a
remedy is owed would normally be left to the compli-
ance stage. See, e.g., Madison South Convalescent Center,
260 NLRB 816 (1982), and Alexander's Restaurant &
Lounge, 228 NLRB 165 (1977). In view of my findings
below, however, that Respondent's layoff of March 6
violated Section 8(a)(5) and (1) of the Act, the remedy
for the 8(a)(3) violation is incorporated in the 8(a)(5)
remedy. All employees laid off on March 6, 1987, will be
made whole as a result of Respondent's failure to give
the Union an opportunity to bargain concerning the lay-
offs.
C. Failure to Recall Chapdelaine, Bauer, and
Nordhus
I find that the General Counsel has made a prima facie
showing that Respondent was motivated by its desire to
retaliate against its employees for choosing union repre-
sentation in not recalling Chapdelaine and Bauer prior to
its recall of employees previously laid off. By June 1987,
Respondent was aware of union activity on the part of
Chapdelaine and Bauer. As set forth in detail above, Re-
spondent had great animus against the employees' choice
of the Union. Under Respondent's layoff and recall pro-
cedures, Chapdelaine and Bauer would normally have
been recalled before employees who had been laid off in
December. As Respondent has not offered any reason
for the recalling of employees laid off in December,
prior to recalling Chapdelaine and Bauer, I find Re-
spondent has not rebutted the General Counsel's prima
facie case. Accordingly, under Wright Line, a violation
of Section 8(a)(3) of the Act has been established.
I find that the General Counsel has not established a
prima facie case concerning Nordhus. Nordhus was of-
fered reemployment prior to the recall of any employee
who had been laid off before him There is no showing
that Nordhus was not offered reemployment at the first
opportunity. There was no allegation that his layoff was
unlawful. The offer of reemployment was not to a pro-
duction job but there is no evidence that Respondent had
any unlawful motive in such an offer. Respondent had
created job opportunities for its employees by giving
them moving, construction, and maintenance work prior
to the layoffs. In fact, Nordhus was involved in such
nonproduction work in the weeks prior to his January
layoff. Thus, the evidence does not establish that Nord-
hus was treated any differently with respect to recall
than he would have been treated in the absence of the
employees' selection of the Union.8
D. Failure to Bargain Prior to the Layoffs
The law is well settled that an employer, whether un-
lawfully motivated, violates Section 8(a)(5) and (1) of the
8 Respondent contends that Nordhus was a supervisor within he
meaning of Sec. 2(11) of the Act. In view of my finding regarding his
recall, I need not reach the question of whether Nordhus, a leadman, was
a statutory supervisor.
1422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act when it institutes a material change in the terms and
conditions of employment in an area that is a mandatory
subject of collective bargaining without giving the bar-
gaining agent both reasonable notice and an opportunity
to negotiate about the change. Garment Workers Local
512 v. NLRB, 795 F.2d 705 (9th Cir. 1986); NLRB v.
Katz, 369 U.S. 736, 747 (1962). When an employer plans
to lay off employees represented by a bargaining agent,
it is the employer's "responsibility to notify the Union
and to offer to bargain prior to implementing the layoff."
Peat Mfg. Co., 261 NLRB 240, fn. 2 (1982). Once the de-
cision is made "the employer must notify the Union and,
upon request, bargain with it concerning the layoffs, in-
cluding the manner in which the layoffs and any recalls
are to be effected." Clements Wire & Mfg. Co., 257
NLRB 1058 (1981). The fact that the Union had not
been certified at the time of the March 6 layoffs is not
material inasmuch as it had prevailed in the representa-
tion election conducted 9 days earlier. An employer vio-
lates Section 8(a)(5) and (1) of the Act by making unilat-
eral changes between an election and certification of a
union. Garment Workers Local 512, supra; Bay Diner, 250
NLRB 187 fn. 2 (1980).
Respondent argues that it gave the Union notice of the
layoffs and that the Union did not attempt to bargain
over that issue. I find no merit to that defense. McDon-
ald did not notify the Union until the late afternoon of
the very day the layoffs took place. There was no justifi-
cation for such short notice, particularly when McDon-
ald claimed that the layoffs were planned for months. In
any event, the notice given the Union here was insuffi-
cient to provide the Union with an adequate opportunity
to bargain. Cliffside Health Care Center, 279 NLRB 1126
(1986); Constructive Sheet Metal, 283 NLRB 1069 fn. 2
(1987).
There is no merit in Respondent's defense that the
Union's inaction privileges Respondent's conduct or
amounts to a waiver. First, as noted above, the Union
was not given prior notice of the layoffs. Thus, McDon-
ald's actions presented the Union with a fait accompli
and precluded any meaningful bargaining. Second, Re-
spondent's antiunion statements and discriminatory in-
crease in the size of the layoff reveal an attempt to viti-
ate the role of the Union as bargaining agent. M. A. Har-
rison Mfg., 253 NLRB 675 (1980), enfd. 682 F.2d 580
(6th Cir. 1982). Third, 3 days after the layoff, the Union
claimed that the layoffs were discriminatory and de-
manded reinstatement for the employees, thereby indicat-
ing its desire to bargain over the layoffs. Thereafter, the
Union filed a timely unfair labor practice charge. Under
such circumstances, the defense of waiver is not available
to Respondent and a waiver of bargaining rights by the
Union cannot be found.9
E. The New Employee Handbook
The General Counsel established that Respondent
issued a new employee handbook after the Union's certi-
fication, without prior notice to and bargaining with the
9 It is well settled that a waiver of bargaining rights must be "clear
and unmistakable" See, e.g., New York Mirror, 151 NLRB 834 (1965); Air
Vac Industries, 282 NLRB 703 (1987).
Union. Although there were changes in the new hand-
book from the old handbook regarding no smoking, va-
cation, and seasonality of the business, there is no evi-
dence that such language changes were changes in estab-
lished working conditions. Rather, the only evidence on
this point is McDonald's unrebutted testimony" that the
conditions were announced in 1986 prior to the Union's
campaign and had been in effect since January 1, 1987.
In these circumstances, I cannot find that a change has
been proven by the preponderance of the credible evi-
dence. See Holiday Inn of Victorville, 284 NLRB 916
(1987).
The Board has held that in order for a unilateral
change in a term or condition of employment to consti-
tute a violation of Section 8(a)(5), it must be a material,
substantial, and significant change. Alamo Cement Co.,
277 NLRB 1031 (1985); Weather Tec Corp., 238 NLRB
1535, 1536 (1978). Under the circumstances of this case,
the issuance of a revised handbook, not shown to contain
changes from existing policies, does not constitute a ma-
terial, substantial, and significant change in a term or
condition of employment and, therefore, is not a viola-
tion of Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, USA McDonald Corporation
d/b/a Norco Products, is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 2, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act by laying
off employees on March 6, 1987, without adequate notice
to the Union and without affording the Union a suffi-
cient opportunity to bargain about these layoffs.
4. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act by increas-
ing the number of employees laid off in its layoff of
March 6, 1987, because its employees selected the Union
as their collective-bargaining representative.
5. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act by delay-
ing the recall from layoff of employees Richard Chapde-
laine and Joseph Bauer, because of the union activities of
its employees.
6. Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act by telling employ-
ees that it would close or quit its business if the Union
was voted in as bargaining representative, that employees
would lose all benefits and have to start over as new em-
ployees if the Union was voted in as bargaining repre-
sentative, that Respondent would lay off employees and
run the plant with supervisors, management, and only a
few employees if the Union was voted in, that Respond-
10 Although McDonald was not a credible witness, the General Goun-
sel did not adduce any testimony to establish that the conditions listed in
the handbook had not been announced in 1986 and placed in effect in
January 1987.
NORCO PRODUCTS

1423
(b) Discriminating against employees in regard to
layoff or recall from layoff in order to discourage mem-
bership and activities on behalf of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 2, or any other
labor organization.
(c) Threatening employees with closing or selling the
business, loss of benefits, miserable working conditions,
layoff or loss of employment, or any other form of retal-
iation for engaging in union activities or for engaging in
activity protected by Section 7 of the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary, to
effectuate the policies of the Act.
(a) Make whole all 14 bargaining unit employees laid
off on March 6, 1987, for any loss of pay they may have
suffered as a result of the unlawful layoff in the manner
set forth above in the remedy section of the decision.
(b) Make whole Joseph Bauer and Richard Chapde-
laMe for the discriminatory delay in recalling them from
layoff in July 1987, in the manner set forth above in the
remedy section of the decision.
(c) Remove from its files any reference to the layoffs
of the employees described in subparagraph (a), above,
and notify each of them that this has been done and that
evidence of such unlawful layoffs will not be used as a
basis for future personnel actions.
(d) Remove from its files any reference to the delay in
recalling Bauer and Chapdelaine from layoff, and notify
each of them in writing that this has been done and that
evidence of this unlawful delay will not be used as a
basis for future personnel actions against him.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(1) Post at its Missoula, Montana facilities copies of the
attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately on receipt and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
13 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 Nation-
al 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."
ent would lay off employees and only retain those that
voted against the Union, that Respondent would turn off
the heat, turn off the fan, and otherwise make working
conditions miserable if employees selected the Union,
and that any employee who favored the Union should
leave the Respondent's employ.
7.The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed at Respondent's Missoula, Montana facility;
but excluding office clerical employees, guards and
supervisors as defined by the Act.
8. Except as specifically found above, Respondent did
not violate the Act.
THE REM EDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondent failed and refused to
bargain with the Union as the exclusive bargaining repre-
sentative of its employees by unilaterally laying off em-
ployees, without affording the Union a reasonable oppor-
tunity to bargain about the layoffs, Respondent shall be
ordered to make the 14 employees whole for any loss of
earnings" they may have suffered by reason of the lay-
offs in accord with the Board's decision in F. W. Wool-
worth Co., 90 NLRB 289 (1980), with interest computed
in the manner set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987). See generally Isis Plumbing Co.,
138 NLRB 716 (1962).
Respondent shall also be ordered to make Richard
Chapdelaine and Joseph Bauer whole for any loss they
may have suffered as a result of the discrimination
against them, with interest.
On these findings of fact and conclusions of law and
on the entire record in this proceeding, I issue the fol-
lowing recommended12
ORDER
The Respondent, USA McDonald Corporation d/b/a
Norco Products, Missoula, Montana, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing and failing to bargain collectively in good
faith with the Union as the exclusive collective-bargain-
ing representative of Respondent's unit employees, by
laying off unit employees without first affording the
Union a reasonable opportunity to bargain about such
layoffs.
" Reinstatement has not been ordered because the affected employees
had all been recalled prior to the strike of July 27, 1987.
12 All outstanding motions inconsistent with this recommended Order
are denied. If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102. 48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all
purposes.
1424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that he complaint be dis-
missed insofar as it alleges unfair labor practices not spe-
cifically found herein.
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 protect-
ed concerted activities.
WE WILL NOT refuse and fail to bargain collectively in
good faith with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 2 as the exclusive collective-bargaining
representative of our unit employees, by laying off bar-
gaining unit employees without first affording the Union
a reasonable opportunity to bargain about such layoffs.
WE WILL NOT discriminate against employees in
regard to layoff or recall from layoff in order to discour-
age membership and activities on behalf of the Union or
any other labor organization.
WE WILL NOT threaten employees with closing or sell-
ing the business, loss of benefits, miserable working con-
ditions, layoff or loss of employment, or any other form
of retaliation for engaging in union activities or for en-
gaging in activity protected by Section 7 of the Act.
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 make whole Montana Boyd, Ron Butcher,
Jim Gates, Scott Green, Kathy Hambley, Roger Hamb-
ley, Richard Harris, Ken Juhnke, Don Martin, Patty
Martin, Kelly Quinn, Steve Rodriquez, Gary Trimp, and
Tom Yelton, for any loss of pay they may have suffered,
with interest, as a result of their unlawful layoff.
WE WILL make whole Joseph Bauer and Richard
Chapdelaine for our discriminatory delay in recalling
them from layoff in June 1987.
WE WILL remove from our files any reference to the
March 6, 1987 layoff of our 14 employees, and notify
each of them that this has been done and that evidence
of such unlawful layoff will not be used as a basis for
future personnel actions.
WE WILL remove from our files any reference to the
delay in recalling Bauer and Chapdelaine from layoff,
and notify each of them in writing that this has been
done and that evidence of this unlawful delay will not be
used as a basis for future personnel actions against him.
The appropriate bargaining unit is:
All production and maintenance employees em-
ployed at our Missoula, Montana facility; but ex-
cluding office clerical employees, guards and super-
visors as defmed by the Act.
USA MCDONALD CORPORATION D/B/A
NORCO PRODUCTS