Page Litho

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 960 (N.L.R.B. 1994)

960
313 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Page Litho, Inc., Debtor-in-Possession and Graphic
Communications International Union, Local
289, AFL–CIO. Case 7–CA–33921
March 2, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
Upon a charge filed by the Graphic Communications
International Union, Local 289, AFL–CIO (the Union),
the General Counsel of the National Labor Relations
Board issued a complaint on December 16, 1992, an
amendment to complaint on March 19, 1993, and a
second amendment to complaint on August 9, 1993,
against Page Litho, Inc., Debtor-in-Possession (the Re-
spondent), alleging that it has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. The Re-
spondent filed an answer to the complaint and a sec-
ond amended answer to the complaint.
On August 23, 1993, the General Counsel filed a
Motion for Summary Judgment with the Board. On
August 30, 1993, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Union and the General Counsel filed briefs in support
of the motion. The Respondent filed a brief opposing
the General Counsel’s request for a make-whole rem-
edy.
Ruling on Motion for Summary Judgment
The Respondent was advised by the General Coun-
sel that by operation of Section 102.20 of the Board’s
Rules and Regulations, ‘‘any allegation in the com-
plaint not specifically denied or explained in an answer
. . . shall be deemed to be admitted to be true . . . .’’
In its second amended answer to complaint, the Re-
spondent admitted or pleaded ‘‘no contest’’ to the
complaint allegations, but reserved the right to contest
the issue of the appropriate remedy. Therefore, by its
second amended answer to complaint, the Respondent
has admitted there is no dispute with regard to any rel-
evant and material facts pertinent to establishing the
violations alleged in the complaint. Accordingly, all
the allegations in the complaint will be considered ad-
mitted to be true, and we grant the General Counsel’s
Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and
place of business in Detroit, Michigan, is engaged in
the printing and bindery business. During the calendar
year ending December 31, 1991, the Respondent sold
and shipped from its Detroit, Michigan facility goods
valued in excess of $50,000 directly to points outside
the State of Michigan. We find that the Respondent is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent (unit 1)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act:
All employees performing work processes, oper-
ations and products associated with or related to
Lithography, offset (including dry or wet) photo-
engraving, intaglio and gravure including any
technological or other change, evolution of or
substitution for any work, process, operation or
product now or hereinafter utilized in any of the
methods described above employed by the Re-
spondent at its Detroit, Michigan facility, but ex-
cluding office clerical employees, sales employ-
ees, professional employees, guards and super-
visors as defined in the Act.
The following employees of the Respondent (unit 2)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act:
All bindery workers, head shipping and receiving
clerks, shipping and receiving clerks, miscellane-
ous shipping and stock handling employees, build-
ing maintenance employees, truck drivers and
hand and table workers employed by the Re-
spondent at its Detroit, Michigan facility, but ex-
cluding office clerical employees, sales employ-
ees, professional employees, guards and super-
visors as defined in the Act.
Since prior to 1980, based on Section 9(a) of the
Act, the Union has been the designated collective-bar-
gaining representative of the unit 1 employees and has
been recognized as the representative by the Respond-
ent. This recognition has been embodied in successive
collective-bargaining agreements, the most recent of
which was effective from June 1, 1986, to May 31,
1989.
Since prior to l980 until on or about October 1,
1990, Graphic Communications International Union,
Local 20-B, AFL–CIO (Local 20-B) was the des-
ignated exclusive collective-bargaining representative
of the unit 2 employees and had been recognized as
the representative by the Respondent. This recognition
had been embodied in successive collective-bargaining
agreements, the most recent of which was effective
from July 28, 1986, through July 30, 1989. Effective
961PAGE LITHO
on or about October 1, 1990, Local 20-B was merged
into the Union and thereafter ceased to exist. Since on
or about October 1, 1990, based on Section 9(a) of the
Act, the Union has been the exclusive collective-bar-
gaining representative of the unit 2 employees.
The 1986–1989 collective-bargaining agreement be-
tween the Respondent and the Union, covering the unit
1 employees, contained the following provision:
ARTICLE 7: HIRING
Section 1. The employer agrees to inform the
union of all position vacancies for work covered
by this contract and to secure the necessary em-
ployees, if available, from the union. However, if
help is unavailable, the employer shall have the
right to hire help through other channels provided
such hiring through other channels shall not be in
conflict with any other provision of this agree-
ment and the union is notified. The union agrees
to refer applicants for available jobs in a non-
discriminatory manner.
The Respondent and the Union began negotiations for
a new collective-bargaining agreement. On or about
September 25, 1989, the Respondent implemented its
‘‘final offer’’ regarding the terms of a new agreement.
This offer contained a revised article 7, as follows:
ARTICLE 7: HIRING
Section 1. The employer agrees to inform the
union of all position vacancies for work covered
by this contract and to give the union equal op-
portunity to refer qualified applicants. The em-
ployer shall have the right to hire help through
other channels. The union agrees to refer appli-
cants for available jobs in a nondiscriminatory
manner.
The 1986–1989 collective-bargaining agreement be-
tween the Respondent and Local 20-B, covering the
unit 2 employees, contained the following provision:
Section 23. The employer in need of help in the
plants or departments over which the union has
jurisdiction as stated above shall notify the office
of the union. However, an employer shall have
the right to hire help through other channels pro-
vided such hiring through other channels shall not
be in conflict with any other provision of this
agreement. No person engaged in the performance
of work within the jurisdiction of GCIU Local 20-
B shall be paid less than the minimum hourly
rates set forth herein for all hours worked.
There was no change to section 23 in the Respondent’s
September 25, 1989 final contract offer.
Since on or about June 30, l99l, and continuing to
date, the Respondent has unilaterally changed terms
and conditions of employment by failing to notify the
Union of position vacancies for work within unit 1 and
to give the Union equal opportunity to refer qualified
applicants in accord with article 7 of the Respondent’s
final offer.
Since on or about February 2, 1991, and continuing
to date, the Respondent has unilaterally changed terms
and conditions of employment by failing to notify the
Union when it was in need of additional employees for
work within unit 2 in accord with section 23 of the
Respondent’s final offer.
Since on or about February 2, 1991, and continuing
to date, the Respondent has unilaterally changed terms
and conditions of employment regarding rates of pay
to employees in units 1 and 2.
CONCLUSIONS OF LAW
1. By failing to notify the Union of position vacan-
cies for work within unit 1 and to give the Union
equal opportunity to refer qualified applicants in ac-
cord with article 7 of its September 25, 1989 final con-
tract offer, the Respondent has violated Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
2. By failing to notify the Union when it was in
need of additional employees for work within unit 2 in
accord with section 23 of the final offer, the Respond-
ent has violated Section 8(a)(5) and (l) and Section
2(6) and (7) of the Act.
3. By unilaterally changing terms and conditions of
employment regarding rates of pay to employees in
units 1 and 2, the Respondent has violated Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in cer-
tain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
We shall order the Respondent to make its employ-
ees in units 1 and 2 whole for any loss of pay they
may have suffered as a result of the Respondent’s uni-
lateral change in terms and conditions of employment
regarding rates of pay. Such amounts are to be com-
puted in the manner prescribed in Ogle Protection
Service, 183 NLRB 682, 683 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest to be computed in
the manner set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).
The General Counsel requests that the Board order
a make-whole remedy for all employees who, accord-
ing to the General Counsel, would have been hired by
the Respondent but for its failure to notify the Union
of job openings. We deny this request for the follow-
ing reasons.
The final contract offer the Respondent implemented
on September 25, 1989, provided for a nonexclusive
hiring hall which required the Respondent only to no-
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
tify the Union of job openings. The Respondent had no
obligation to hire any individual referred by the Union.
In fact, the Respondent had the explicit right ‘‘to hire
help through other channels.’’
Furthermore, there is no allegation that the Respond-
ent acted discriminatorily in its hiring during the time
at issue. In this respect, the remedial issue presented
here is analogous to the one the Board considered in
Taracorp, Inc., 273 NLRB 221, 222–224 (1984). The
Board held in Taracorp that the employer’s violation
of an employee’s Weingarten1 rights did not automati-
cally entitle the employee to reinstatement where there
was not a sufficient nexus between the unfair labor
practice—denial of representation at an investigatory
interview—and the reason for the employee’s dis-
charge—perceived misconduct. In the instant case, we
are unable to justify the imposition of the remedy the
General Counsel requests where the Respondent’s only
violation was its failure, pursuant to a nonexclusive
hiring hall arrangement, to notify the Union of job
openings. Here, as in Taracorp, there is not a suffi-
cient nexus between the violation committed—failure
to notify—and the failure of particular individuals to
be hired, where the Respondent had no obligation to
hire them in the first place and the Respondent com-
mitted no discrimination in its hiring.
The cases cited by the General Counsel do not sup-
port a make-whole remedy under the circumstances
herein.
The General Counsel claims that in Development
Consultants, 300 NLRB 479 (1990), the Board ‘‘found
a make-whole remedy to be appropriate in order to
remedy a violation of the Act involving a nonexclusive
hiring hall.’’ However, the Board specifically found
that the union discriminatorily refused to refer mem-
bers and ordered a make-whole remedy to cure that
discrimination. There is no allegation of discrimination
in the instant case.
Despite the absence of discrimination and an exclu-
sive hiring hall, the General Counsel asserts that indi-
viduals who would have been referred should be of-
fered employment and made whole by the Respondent
because they are easily identified. This is appropriate,
according to the General Counsel, because the Re-
spondent has created, by its unfair labor practices, un-
certainty as to whether the identifiable pool of employ-
ees would have been hired. The General Counsel relies
on State Distributing Co., 282 NLRB 1048 (1987), and
Love’s Barbeque Restaurant No. 62, 245 NLRB 78
(1979), enfd. in pertinent part 640 F.2d 1094 (9th Cir.
1981).
The General Counsel is mistaken in asserting that
the cited cases support the proposition that the viola-
tion in this case justifies assuming that individuals the
Union would have referred would have been hired by
the Respondent. In the cases cited, the Board found
that the respondents discriminatorily refused to hire
their predecessors’ employees in order to avoid work
forces with a union majority. It was the respondents’
discriminatory acts that created the uncertainty whether
the predecessors’ employees would have applied and
been hired. The Board accordingly resolved that uncer-
tainty against the respondents and therefore found that
the unions’ majority status presumptively would have
continued. In the instant case, there are no discrimina-
tory acts or any acts equivalent to discrimination.
The General Counsel also likens this case to Allied
Products Corp., 218 NLRB 1246 (1975), enfd. in per-
tinent part 548 F.2d 644 (6th Cir. 1977), in which the
Board included in its order a make-whole provision in
furtherance of the status quo ante remedy for the re-
spondent’s 8(a)(5) unilateral change in employees’ ex-
isting benefits. However, Allied Products does not sup-
port the General Counsel’s position because the unilat-
eral change at issue here, failure to notify, does not in-
volve a change in wages or other terms for which a
make-whole provision would be appropriate. Restora-
tion of the status quo ante in the instant case merely
requires the Respondent to notify the Union of job
openings.
Finally, the General Counsel relies on cases impos-
ing the remedy set forth in Rubber Workers Local 250
(Mack-Wayne Closures), 279 NLRB 1074 (1986), and
290 NLRB 817 (1988). We believe there is a critical
distinction between those cases and the instant case.
As the General Counsel points out, in those cases
the Board ordered that a union, which violated Section
8(b)(l)(A) of the Act by refusing to process an employ-
ee’s grievance pertaining to his discharge, make whole
the employee for any loss of pay suffered as a result
of the unfair labor practice. Before such a remedy
could be ordered, however, the Board ‘‘required an af-
firmative showing of a nexus between the unfair labor
practice and the make-whole remedy.’’ 290 NLRB at
818. The Board defined that nexus as a showing that
the employee’s grievance was not clearly frivolous.
In the instant case, we cannot make the finding that
was preliminary to the remedy imposed in Mack-
Wayne, supra. Given that the General Counsel has con-
ceded that the Respondent had no obligation to hire
anyone the Union might have referred and that there
was no discrimination in the Respondent’s actual
hirings, there simply is no nexus between the unfair
labor practice and the failure of individuals to be em-
ployed by the Respondent.
In sum, a make-whole order must remedy actual and
not speculative damages. Sure Tan, Inc. v NLRB, 467
U.S. 883, 900 (1984). The stipulated facts provide no
basis for finding the actual damages that would justify
imposing the remedy the General Counsel seeks. To
impose a make-whole remedy in this case is ‘‘to take
963PAGE LITHO
2 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.’’
action that simply does not lie within the Board’s
[10(c)] powers.’’ Sure Tan, 467 U.S. at 900 and 904
fn. 13.
Accordingly, we shall require only that the Respond-
ent meet the obligation it imposed on itself by imple-
menting the final contract offer to notify the Union
when there are position vacancies for work within unit
1 and when the Respondent is in need of additional
employees for work within unit 2.
ORDER
The National Labor Relations Board orders that the
Respondent, Page Litho, Inc., Debtor-in-Possession,
Detroit, Michigan, its officers, agents, successors, and
assigns, shall
l. Cease and desist from
(a) Failing to notify Graphic Communications Inter-
national Union, Local 289, AFL–CIO of position va-
cancies for work within unit 1 and to give the Union
equal opportunity to refer qualified applicants, in ac-
cord with article 7 of its September 25, 1989 final con-
tract offer.
(b) Failing to notify the Union when it was in need
of additional employees for work within unit 2 in ac-
cord with section 23 of its final offer.
(c) Unilaterally changing terms and conditions of
employment regarding rates of pay to employees in
units 1 and 2.
(d) 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) Make whole employees in units 1 and 2 for any
loss of pay as a result of its unilateral change in terms
and conditions of employment regarding rates of pay,
with interest, in the manner set forth in the remedy
section of the decision.
(b) Notify the Union of position vacancies for work
within unit 1 and notify the Union when it is in need
of additional employees for work within unit 2.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts due under
the terms of this Order.
(d) Post at its facility in Detroit, Michigan, copies
of the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, 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.
WE WILL NOT fail to notify Graphic Communica-
tions International Union, Local 289, AFL–CIO of po-
sition vacancies for work within unit 1 and to give the
Union equal opportunity to refer qualified applicants in
accord with article 7 of our September 25, 1989 final
contract offer.
WE WILL NOT fail to notify the Union when we are
in need of additional employees for work within unit
2, in accord with section 23 of our final offer.
WE WILL NOT unilaterally change terms and condi-
tions of employment regarding rates of pay to employ-
ees in units 1 and 2.
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 employees in units 1 and 2
for any loss of pay as a result of our unilateral change
in terms and conditions of employment regarding rates
of pay, with interest.
WE WILL notify the Union of position vacancies for
work within unit 1 and WE WILL notify the Union
when we are in need of additional employees for work
within unit 2.
PAGE LITHO, INC., DEBTOR-IN-POSSES-
SION