Rangaire Co.

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1043 (N.L.R.B. 1992)

1043
309 NLRB No. 167
RANGAIRE CO.
1 On August 25, 1992, Administrative Law Judge William J. Pan-
nier III issued the attached decision. The Respondent and the Gen-
eral Counsel each filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The judge also found that the Respondent lawfully refused to
continue union dues checkoffs after expiration of the parties’ collec-
tive-bargaining agreement. There are no exceptions to this finding.
3 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.
The judge credited former Personnel Manager Cathy Stevens’ tes-
timony that a man tentatively identified as Goodhue Smith stated,
‘‘let’s shut it down and let them think about it.’’ In crediting Ste-
vens, the judge relied in part on the failure of the Respondent to call
Smith to testify. We adopt the judge’s credibility resolution, but find
it unnecessary to pass on this basis for crediting Stevens, as the
judge found that Stevens had testified candidly and that her testi-
mony was reinforced by other evidence.
4 Alamo Cement Co., 281 NLRB 737, 738 (1986).
5 The judge mistakenly found the unilateral change in the
lunchbreak practice here comparable to the installation of an em-
ployee break buzzer system which the Board majority in Litton
found did not entail a ‘‘material, substantial, and significant’’
change. The installation of the buzzer system did not alter the offi-
cial time allotted for employee breaks. At the most, it deprived some
employees of a grace period of a couple of minutes in transit to and
from their breaks. 300 NLRB at 331–332 (Chairman Stephens dis-
senting).
6 We shall modify the remedy to include provisions for the Re-
spondent to reinstate the past practice for Thanksgiving lunchbreak
and to make whole unit employees for losses suffered as a result of
the unlawful unilateral repudiation of that practice. Interest on back-
pay shall be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Rangaire Acquisition Corporation and GSL
Rangaire Corporation d/b/a Rangaire Com-
pany and Allied Industrial Workers of Amer-
ica, Local 424. Cases 16–CA–14967 and 16–CA–
15039
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case involves alleged violations by the Re-
spondent of Section 8(a)(5) of the Act.1 The judge has
found that the Respondent unlawfully modified con-
tractual workweek schedules without the Union’s con-
sent and locked out employees in an attempt to coerce
them and the Union to consent to midterm modifica-
tion of terms in a collective-bargaining agreement with
the Union. He further found that the Respondent did
not violate Section 8(a)(5) by unilaterally departing
from a past practice of giving unit employees an extra
paid 15 minutes for lunchbreak on Thanksgiving.2
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,3 and con-
clusions, except with respect to the lunchbreak issue,
and to adopt the recommended Order as modified. For
the reasons set forth below, we find that the unilateral
denial of an extended Thanksgiving lunchbreak was
unlawful.
According to credited testimony, an extra paid 15
minutes for the Thanksgiving lunchbreak was a long-
standing practice when the Respondent took control of
operations at the Cleburne, Texas plant in 1989 and
agreed to assume the obligations of the predecessor’s
collective-bargaining agreement with the Union. The
Respondent honored the past practice of an extended
break for Thanksgiving 1989. In November 1990, the
Respondent’s president, Joe McKenzie, unilaterally de-
nied an extended break for Thanksgiving. McKenzie
testifed that he calculated the total cost of an extended
paid lunchbreak and determined that the Respondent
could not afford it.
Although finding that there was an established past
practice of an extended paid Thanksgiving lunchbreak,
the judge found that the single denial of a 15-minute
break did not involve a material, substantial, and sig-
nificant change in unit employees’ terms and condi-
tions of employment. Accordingly, the judge con-
cluded that the denial of an extended Thanksgiving
lunchbreak did not violate Section 8(a)(5) of the Act.
We disagree.
It is correct that a unilateral change in a mandatory
subject of bargaining is unlawful only if it is ‘‘mate-
rial, substantial, and significant.’’4 The Board has pre-
viously found, however, that an employer’s single uni-
lateral refusal to adhere to a past practice of a paid
extra half hour for lunch on Christmas Eve violated
Section 8(a)(5). Litton Systems, 300 NLRB 324, 331
fn. 34 (1990), enfd. 949 F.2d 249, 251–252 (8th Cir.
1991). The difference between the 30-minute paid
break in Litton and the 15-minute paid break here does
not define the difference between substantial and de
minimis.5 On the contrary, the Respondent’s own wit-
ness has effectively acknowledged the substantiality of
the 15-minute Thanksgiving break by claiming the
economic necessity of eliminating it. We find that the
unilateral discontinuation of the break entailed a mate-
rial, substantial, and significant change in unit employ-
ees’ wages and working conditions. The Respondent
therefore violated Section 8(a)(5).6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Rangaire Acquisition Corporation and GSL Rangaire
Corporation d/b/a Rangaire Company, Cleburne, Texas,
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph 1(c) and reletter
the subsequent paragraph.
‘‘(c) Unilaterally refusing to adhere to an established
past practice of providing unit employees with an extra
paid 15 minutes for lunch on Thanksgiving.’’
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) Make whole, with interest, all bargaining unit
employees for the unilateral recission of the extra paid
15 minutes for lunch on Thanksgiving, and reinstate
the established past practice with respect to the
Thanksgiving lunchbreak.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 change or modify contractually speci-
fied workweek schedules, or any other contract term
and condition, during the effective term of a collective-
bargaining contract with Allied Industrial Workers of
America, Local 424, as the collective-bargaining agent
of employees in an appropriate bargaining unit of:
All production and maintenance employees em-
ployed by Rangaire Acquisition Corporation and
GSL Rangaire Corporation d/b/a Rangaire Com-
pany at its Cleburne, Texas, facility; excluding of-
fice clerical employees, draftsmen, engineering
technicians, professional employees, guards,
watchmen and supervisors as defined in the Na-
tional Labor Relations Act.
WE WILL NOT lock out, lay off, or otherwise attempt
to coerce you into accepting changes in the terms and
conditions of a collective-bargaining contract during its
effective term.
WE WILL NOT unilaterally refuse to adhere to an es-
tablished past practice of providing unit employees
with an extra paid 15 minutes for lunch on Thanks-
giving.
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 adhere to the workweek schedules and
other terms and conditions set forth in collective-bar-
gaining contracts with Allied Industrial Workers of
America, Local 424, as the collective-bargaining agent
of employees in the appropriate bargaining unit de-
scribed above, unless we first obtain the uncoerced
agreement of that labor organization.
WE WILL make whole, with interest, all unit employ-
ees for any loss of pay and benefits they suffered be-
cause they were unlawfully locked out on October 31
and on November 5 and 6, 1990, and because of un-
lawful changes in their contractually specified work-
week schedules from November 27 to December 3,
1990.
WE WILL make whole, with interest, all bargaining
unit employees for our unlawful recission of the extra
paid 15 minutes for lunch on Thanksgiving, and WE
WILL reinstate the established past practice with respect
to the Thanksgiving lunchbreak.
RANGAIRE ACQUISITION CORPORATION
AND GSL RANGAIRE CORPORATION
D/B/A RANGAIRE COMPANY
Elizabeth J. Kilpatrick, for the General Counsel.
John E. McFall, William O. Ashcraft and Eric J. Senske
(McFall & Ashcraft), of Dallas, Texas, appearing for the
Respondent.
Jim Gattis, of Fort Smith, Arkansas, appearing for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Fort Worth, Texas, on October 16 and 17,
1991. On July 2, 1991, the Regional Director for Region 16
of the National Labor Relations Board (the Board) issued an
order consolidating cases, consolidated complaint and notice
of hearing, based on an unfair labor practice charge filed in
Case 16–CA–14967 on March 26, 1991, and on an unfair
labor practice charge filed in Case 16–CA–15039 on May 8,
1991, alleging violations of Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act). All parties have been
afforded full opportunity to appear, to introduce evidence, to
examine and cross-examine witnesses, and to file briefs.
Based on the entire record, upon the briefs that were filed,
and on my observation of the demeanor of the witnesses, I
make the following
1045RANGAIRE CO.
1 As amended at the hearing.
FINDINGS OF FACT
I. JURISDICTION
At all times material Rangaire Acquisition Corporation and
GSL Rangaire Corporation d/b/a Rangaire Company (Re-
spondent)1 has been a Texas corporation with an office and
place of business in Cleburne, Texas, and has engaged in the
manufacture and nonretail sale of electrical appliances and
related products. In the course and conduct of those oper-
ations during the 12-month period preceding issuance of the
consolidated complaint, Respondent purchased and received
for use at its Cleburne facility goods and material valued in
excess of $50,000 directly from suppliers located outside the
State of Texas. Therefore, I conclude, as admitted in Re-
spondent’s original answer to consolidated complaint, that at
all times material Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Allied Industrial Workers of Amer-
ica, Local 424 (the Union) has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Oven hoods, fluorescent light fixtures, and chest freezers
have been manufactured by Respondent at the Cleburne plant
since June 1989. Prior to that month and year the plant had
been owned and operated by Scottish Heritables, Inc. More-
over, since at least 1976, the Union had been recognized as
the bargaining representative of employees working there in
an admittedly appropriate bargaining unit of all production
and maintenance employees, excluding office clerical em-
ployees, draftsmen, engineering technicians, professional em-
ployees, guards, watchmen, and supervisors as defined in the
Act. A series of collective-bargaining contracts had been ne-
gotiated and executed by the parties. The most recent one
prior to June 1989 had been signed on April 15, 1987.
In June 1989 the Cleburne plant and related assets were
purchased by Respondent, a joint venture of two subsidiary
corporations: GSL Rangaire Corporation and Rangaire Ac-
quisition Corporation. The former is a group of investors put
together by Duncan Smith Investment Group. That group
owns 34 percent of Respondent. Rangaire Acquisition Cor-
poration was formed by five investors to acquire the
Cleburne plant and its assets. One of them is Joe Petty, the
owner of five percent of Rangaire Acquisition Corporation
and the individual who served as Respondent’s president
until he resigned effective October 31, 1990. A second inves-
tor is Billie Henderson. At all times material she has been
Respondent’s controller and has owned 2 percent of Rangaire
Acquisition Corporation. Forty-four percent of it is owned by
Joe McKenzie, an admitted statutory supervisor and agent of
Respondent who serves as Respondent’s chairman of the
board and, since Petty’s resignation, as its president, as well.
Most of the complaint’s allegations arise from conver-
gence of two aspects of the purchase of assets in 1990. In
addition to money put up by the investors and subordinated
debt taken back by the seller, the asset purchase was fi-
nanced by Barclays Business Credit, Inc. By loan and secu-
rity agreement, it extended to Respondent a fixed asset loan
and a working capital loan. Second, McKenzie decided not
only to continue recognizing the Union as the production and
maintenance employees’ representative, but also to adopt the
contract signed on April 15, 1987, then scheduled to expire
on April 25, 1990. With regard to its term, that contract pro-
vided for annual renewal after April 25, 1990, absent timely
notice of desire to amend, change, or terminate it. Timely
notice did occur in 1990. But, following two short-term ex-
tensions of the contract, the parties executed a Memorandum
of Understanding, agreeing to extend it with modifications
until April 25, 1991.
After June 1990 Respondent’s operations were less than
anticipated. In fact, it suffered losses during each succeeding
month. In consequence, Barclays began more closely scruti-
nizing operations of Respondent which, ultimately, was sub-
jected to a forbearance agreement and successive amend-
ments thereto. In an effort to comply and to achieve profit-
ability, Respondent formulated a restructuring plan. That plan
was a multifaceted program. One aspect of it contemplated
reductions in wages and certain benefits prescribed in the
1987–1990 contract, as extended and modified.
During October and early November 1990 Respondent
made efforts, described more fully in subsection III,B, infra,
to persuade the Union, and the employees that it represented,
to modify the contract by accepting the restructuring plan’s
proposed concessions. Ultimately, a majority of the employ-
ees rejected Respondent’s proposal in an election conducted
among them on November 14, 1990. However, during the
preceding 15 calendar days the plant had been closed, and
all unit employees laid off, on 3 days: Wednesday, October
31; Monday, November 5; and, Tuesday, November 6, 1990.
The General Counsel alleges that those closures and con-
sequent layoffs had been designed by Respondent to coerce
the employees into accepting midterm modifications of the
collective-bargaining contract, something which no party
could demand, and, accordingly, constituted unlawful
lockouts that violated Section 8(a)(5) and (1) of the Act. For
the reasons set forth subsection III,B, infra, a preponderance
of the evidence supports that allegation.
The General Counsel also alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by denying the unit em-
ployees’ request for a Thanksgiving lunchbreak extended by
15 minutes in 1990. In fact, the record establishes that, while
not required by the contract, for approximately a decade
there had been a practice of allowing 15 minutes extra for
Thanksgiving lunchbreak. Indeed, Respondent, itself, ob-
served that practice during 1989. Moreover, it is undisputed
that McKenzie made the decision not to grant it in 1990
without providing prior notice to the Union. Nevertheless, as
discussed in subsection III,C, infra, it has not been estab-
lished that the extended break constituted a material, substan-
tial and significant employment term and condition. Con-
sequently, its disallowance in 1990 did not violate Section
8(a)(5) and (1) of the Act.
In addition, the complaint alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by changing the workweek
schedule for some unit employees from the 8-hour, 5-day
one specified in the collective-bargaining contract to a 10-
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hour, 4-day one from November 27 to December 3, 1990.
There is no dispute that the change had never received the
Union’s agreement. Accordingly, for the reasons set forth in
subsection III,D, infra, I conclude that a preponderance of
the evidence supports the allegation that the schedule change
violated Section 8(a)(5) and (1) of the Act.
Finally, the General Counsel contends that Respondent has
violated Section 8(a)(5) and (1) of the Act since April 25,
1991, by discontinuing dues deductions required by the col-
lective-bargaining contract for employees who executed
checkoff authorizations. Underlying that allegation are the
subsidiary issues of whether, under the terms of the above-
noted 1-year extension, the contract would renew annually
absent timely notice of intent to amend, change, or terminate
it, and, second, whether Respondent in fact gave that timely
notice in 1991. As discussed in subsection III,E, infra, re-
gardless of the contract interpretation issue, a preponderance
of the evidence supports the argument that the Union had re-
ceived notice from Respondent in time to prevent automatic
contract renewal. Inasmuch as union security and checkoff
are subjects that do not survive expiration of a collective-bar-
gaining contract, I conclude that Respondent did not violate
the Act by discontinuing dues deduction after the contract
had expired without agreement on the terms for a succeeding
contract. Consequently, I grant Respondent’s motion to dis-
miss this allegation of the complaint.
B. The Layoffs of October 31 and November 5
and 6, 1990
The layoffs on these 3 days were part of a series of perti-
nent events that occurred during October and November
1990. By the beginning of October Respondent’s financial
situation had deteriorated to the point of precariousness. Dur-
ing the first half of October Respondent reviewed the terms
of its restructuring plan with members of the employee bar-
gaining committee—Sam Shivers, committee president;
Sherrie Barber, chairperson; Virgie McComas; Mike White-
head; and, Jeff Shirley—and with Business Manager Smith
Harris, then serving as the official who was responsible for
handling the Union’s relations with Respondent. The plan
contemplated modification of the collective-bargaining con-
tract by allowing Respondent concessions in certain of its
terms. To support its assertions of economic necessity for
these concessions, Respondent offered to open its books for
inspection. The Union accepted that offer and agreed to un-
dertake an inspection of Respondent’s financial records, al-
though, in doing so, there is no evidence that it made any
agreement concerning concessions should the books confirm
Respondent’s description of its adverse financial situation.
Meetings to inspect the records took place on Monday,
October 29 and on Tuesday, October 30. By those dates a
reassignment of union personnel had resulted in replacement
of Harris by Region 8 Regional Representative Jim Gattis as
the individual servicing Respondent’s employees. Accom-
panying Gattis to those late October meetings was Steve
Hendrickson, an expert on analyzing financial records who
was employed as director of research by the Union’s Inter-
national body. After a tour of Respondent’s plant on October
19, Hendrickson began to examine the monthly records (gen-
eral ledger, profit and loss statements, balance sheets, cash
availability reports, etc.) arranged for inspection in Respond-
ent’s conference room. Although there is some dispute re-
garding the length of time Hendrickson actually spent there
looking at records, it is uncontroverted that he collected
some of those documents which he placed in an accordion
file and took to his hotel room. There, he spent the remain-
der of that day and that evening, as well as the following
morning, examining those records.
Returning to Respondent’s plant after lunch on Tuesday,
October 30, Hendrickson returned the documents and asked
for certain additional ones which Controller Henderson
promised to transmit after she had located and assembled
them. More importantly, Gattis testified that McKenzie had
asked when the Union would respond concerning Respond-
ent’s request for concessions and that he had replied that, be-
fore negotiations could be undertaken regarding the restruc-
turing plan’s proposed concessions, there first had to be an
election among the employees to determine whether a major-
ity of them were willing to reopen the contract for those ne-
gotiations. Gattis further testified, without contradiction, that
McKenzie ‘‘became visibly upset and said, ‘No, I’m not talk-
ing about a vote to open the contract. I’m talking about a
vote to put these concessions in place.’’’ After repeating that
there first had to be an election on whether to reopen the
contract, testified Gattis without contradiction, he had point-
ed out that even if an employee majority voted in favor of
reopening the contract, the Union did not necessarily consent
to Respondent’s proposed concessions and there would need
to be negotiations about them, with the Union wanting to
propose some items in exchange for concessions. Gattis testi-
fied that McKenzie had retorted simply that nothing was ne-
gotiable. McKenzie testified that his statement had been
‘‘that the bank was not in very much of a negotiating
mood,’’ with the result ‘‘that the bank had me in a position
of not being negotiable.’’ The most crucial point about this
meeting is that at no point during it—nor, for that matter, at
any time before it—did any of Respondent’s officials say
anything about closing the plant, nor about laying off the
production and maintenance employees who worked there.
Shortly after Gattis and Hendrickson left the Cleburne
plant on October 30, however, then-Personnel Manager
Cathy Stevens posted notices stating that the plant would be
closed on Wednesday, October 31. Those notices further re-
cited that the personnel office should be contacted ‘‘to see
if Plant will be open on Thursday.’’ After the 3:30 quitting
time, the bargaining committee met with Gattis and, for the
first time, he learned of the closure. He testified that, in view
of it, he felt there probably was no need to hold an emer-
gency meeting with the employees and that the subject of re-
opening the contract could be deferred to the regular monthly
membership meeting, then scheduled for Tuesday, November
6. Accordingly, he returned to Little Rock, Arkansas, the lo-
cation of his home and office.
The plant was closed on Wednesday, October 31. But it
reopened on Thursday, November 1, with employees return-
ing to work at their normal starting time of 7 a.m. McKenzie
met with them at 9 a.m. During that meeting, he ‘‘reiterated
the financial situation of the company, that we needed to
have concessions to continue to survive.’’ The restructuring
plan’s proposals were read to the assembled employees.
When one of them asked ‘‘what happens if the company
can’t make the payroll,’’ testified McKenzie, ‘‘I told them at
that point in time, that for the rest of the week, if this plant
1047RANGAIRE CO.
couldn’t make the payroll, then I would pay it personally.
But that was for that week only.’’
Following that meeting the bargaining committee members
spoke with McKenzie. He implored them ‘‘to try to get
something together so these people could vote on [Respond-
ent’s] . . . proposals [it] had offered,’’ adding that the matter
had to be resolved by the next day, Friday, November 2. He
excused the committee members from work. They used that
time off to contact Gattis in Arkansas and, with his acquies-
cence, to arrange a membership meeting for 1 p.m. on Fri-
day, November 2. The employees were excused from work
to attend that meeting. At it, however, a majority of them
voted against reopening the contract.
Prior to midnight on Sunday evening, notices were posted
on the plant doors stating that it would be closed until further
notice. As had been true of the October 31 closure, it is un-
disputed that no prior notice was given to the Union of the
closure on Monday, November 5. Nor was prior notice given
to the Union that the plant would be closed on Tuesday, No-
vember 6, as well. In fact, it was closed on both days. But
during the morning of the second day Chairperson Barber
was called by Stevens who asked if the committee would
meet with Respondent’s officials. At that meeting modified
concessions were proposed and the committee was asked to
take another vote on reopening the contract. The committee
also was told that the plant had been closed due to financial
difficulties, but it is undisputed that Controller Henderson
promised to ‘‘see to it that the plant would remain open de-
spite the problems that they were having financially.’’ In fact
the plant did reopen on Wednesday, November 7, and has re-
mained in operation continuously since that date.
A majority of the employees did vote in favor of reopen-
ing the contract. However, no solution to Respondent’s fi-
nancial difficulties resulted from that election. Negotiations
were conducted at a meeting on November 14, principally
between Gattis and Bill Cole, Respondent’s materials man-
ager and an admitted statutory supervisor and agent of Re-
spondent. But despite Respondent’s presentation of a further
modified concessions program during that meeting, a major-
ity of the employees voted on that date against agreeing to
modify their collective-bargaining contract’s existing terms
and conditions. That election terminated all further consider-
ation of contractual modifications.
Respondent contends that the layoffs had been necessitated
by a shortage of funds that, had it allowed the employees to
work on October 31 and on November 5 and 6, and issued
paychecks to them for doing so, would have subjected it to
financial penalties under the Texas Payday Law. The General
Counsel, however, alleges that the 3 days of layoff con-
stituted successive lockouts, each designed to coerce the em-
ployees into consenting to midterm modifications of contract
terms. That allegation is based on certain well-settled prin-
ciples. Because layoffs effect a material, substantial and sig-
nificant change in terms and conditions of employment, prior
notification about them must be afforded the affected em-
ployees’ bargaining agent. See, e.g., Ladies’ Garment Work-
ers Local 512 v. NLRB, 795 F.2d 705, 710–711 (9th Cir.
1986). This is so regardless of the employer’s good faith or
lack of unlawful motivation for laying off represented em-
ployees. ‘‘Proof of violation of Section 8(a)(5) by showing
unilateral changes may not be rebutted by proof of [the] em-
ployer’s good faith or the absence of anti-union animus.’’
NLRB v. Allied Products Corp., 548 F.2d 644, 652 (6th Cir.
1977).
To be sure, both the Board and the circuit courts of ap-
peals have acknowledged that the prior notice requirement is
not so absolute as to be completely without limitation. See,
e.g., Peerless Publications, 283 NLRB 344 (1987); NLRB v.
Powell Electrical Mfg. Co., 906 F.2d 1007 (5th Cir. 1990).
But that limitation is quite narrow. ‘‘The Act permits no im-
munity because the employer may think that the exigencies
of the moment requires infraction of the statute.’’ NLRB v.
Union Mfg. Co., 200 F.2d 656, 659 (5th Cir. 1963). Here,
Respondent has failed to establish even ‘‘exigencies of the
moment’’ to justify its failure to notify the Union, and afford
it an opportunity to bargain about the subject, before effect-
ing the layoffs of October 31 and of November 5 and 6.
In the first place, whatever Respondent’s financial situa-
tion, it had been under no obligation to present paychecks to
the employees on any of the days that it laid them off. Arti-
cle XV, section 3(b) of the 1987–1990 contract provides that,
‘‘Pay day shall be on Friday of each week.’’ No change was
made in that provision by the 1990 memorandum of under-
standing, save perhaps by a provision for providing checks
to employees who must leave work early as a result of emer-
gency. Consequently, even accepting Respondent’s defense
of dire financial straits on those 3 days, before paychecks
had to be issued there was time to notify the Union of the
situation and to consider alternatives to layoff that it might
propose for each of the 2 weeks during which layoffs oc-
curred.
Of course, neither the Board nor its administrative law
judges are free to substitute their own subjective impression
of proper business decisions. Super Tire Stores, 236 NLRB
877 fn. 1 (1987). Nevertheless, it hardly transcends that pro-
hibition to point out that, as an objective matter, alternatives
to layoff on October 31 and on November 5 and 6 did exist
in the circumstances. For example, given the daily fluctua-
tions in Respondent’s financial situation, the layoffs could
have been postponed until later during the weeks of October
29 through November 2 and of November 5 through 9, so
that it could be ascertained more closely to the actual payday
if an economic improvement would occur during the latter
portion of those weeks. Or, the Union might have agreed to
defer payment for particular days worked so long as the em-
ployees were allowed to work on those days without being
subjected to layoff. ‘‘Although an employer may properly
decide that an economic layoff is required, once such a deci-
sion is made the employer must nevertheless notify the
Union, and, upon request, bargain with it concerning the lay-
offs, including the manner in which the layoffs and any re-
calls are to be effected.’’ Clements Wire, 257 NLRB 1058,
1059 (1981).
In the second place, whatever situation confronted Re-
spondent immediately before the layoffs had not been an un-
anticipated one. Franklin R. Sears, then Respondent’s coun-
sel, testified that he had discussed the insufficient funds for
payroll implications of Respondent’s financial situation, in
light of the Texas Payday Law, with officials of Respondent
‘‘several times’’ before the workweek of October 29 through
November 2. Yet, at no point prior to that week did Re-
spondent’s officials see fit to raise with the Union the possi-
bility of layoffs due to insufficient funds to cover paychecks
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for work performed. Surely McKenzie had been presented
with an excellent opportunity to do so: Gattis had been at the
Cleburne plant on October 29 and 30, immediately before
announcement of the initial layoff. By having failed to raise
the subject with Gattis on either date, Respondent has de-
prived itself of any basis for an ‘‘exigencies of the moment’’
contention. Its unilateral action constituted a ‘‘derogation of
the Union’s right to recognition as the exclusive bargaining
representative of the employees.’’ NLRB v. Shannon, 208
F.2d 545, 547 (9th Cir. 1953).
Building on that unilateral action analysis, the General
Counsel contends that a preponderance of the evidence actu-
ally shows that Respondent affirmatively utilized the employ-
ees’ uninterrupted continued employment as a lever to try to
coerce them into accepting midterm contract modifications.
That is, contends the General Counsel, Respondent effec-
tively locked them out to compel their favorable consider-
ation of its proposed concessions, by demonstrating the pos-
sible adverse consequences of their failure to acquiesce in its
proposed concessions.
The timing of the layoffs is consistent with the General
Counsel’s contention and, of course, timing can be a persua-
sive consideration in evaluating the reasons for an employ-
er’s action. See, e.g., NLRB v. Rain-Ware, Inc., 732 F.2d
1349, 1354 (7th Cir. 1984). Indeed, in the circumstances pre-
sented here timing is significant in at least three regards.
First, both layoffs—the one on October 31 and the combined
one of November 5 and 6—had been preceded by notice to
Respondent of either Union or employee unwillingness to
unquestioningly acquiesce in the restructuring plan’s conces-
sions. Thus, as described above, on October 30 Gattis in-
formed McKenzie that no concessions would be considered
before a majority of the unit employees voted to reopen the
contract and, even then, the Union wanted to negotiate about
any concessions. Virtually within minutes of that conversa-
tion the notice of closure on the following day was posted.
In like vein, during the afternoon of November 2, after a ma-
jority of those employees voted against reopening the con-
tract, Virgie McComas notified Materials Manager Cole of
that election’s outcome. Before the next scheduled work-
day—Monday, November 5— notice of a second closure was
posted.
Another timing aspect was the relation between the plant’s
reopening and renewal of appeals to accept contractual con-
cessions. As described above, on November 6 the bargaining
committee was summoned to the then-closed plant. There,
they were told that the plant would reopen in the overall con-
text of an appeal for another election to reopen the contract.
Similarly, although the employees were allowed to first re-
turn to work on November 1, at midmorning that day
McKenzie assembled them for a meeting during which he ef-
fectively appealed for concessions in a context of explaining
Respondent’s adverse financial situation.
The final aspect of timing is the above-noted absence of
an actual relationship between the plant closures and Re-
spondent’s defense of insufficient funds to cover paychecks.
The first layoff occurred on a Wednesday and the next two
occurred on a Monday and a Tuesday. None of those days
was a payday. Respondent’s payday fell on Friday. At no
point did Respondent’s officials explain why it had been nec-
essary to notify employees of their layoff during the first half
of the workweek because of a possible inability to cover
their work with paychecks that would not issue until week’s
end.
The adverse effect on Respondent’s defense of the lack of
such an explanation is magnified by examination of daily
cash availability reports on which McKenzie claimed that he
had relied in making the layoff decisions. Only a limited
number of such reports were produced during the hearing.
However, even that limited number discloses a substantial
variance from day to day in estimated cash shortage by the
end of a week. For example, a cash shortage on November
2 is projected to be $191,577 on the report for October 30,
to be $123,521 on the following day’s report, and to be
$68,637 on the report for November 1. To be sure, deficits
are projected on each day. But given the extraordinary day-
to-day declining variance in amount, Respondent never ex-
plained why it had been necessary to decide so early in the
workweek—on Tuesday in one instance and on Sunday and
Monday in the later one—to temporarily layoff employees in
anticipation of a cash shortage for paychecks that would not
issue until the end of the week.
In fact, the reliability of Respondent’s defense is dimin-
ished by the very minimal number of daily cash availability
reports produced at the hearing. Six of them were introduced:
the three above-described ones for October 30 through No-
vember 1; one for November 2, showing a cash shortage of
$383,739; one for November 5, showing a cash shortage of
$310,498; and, one for November 6, showing a cash shortage
of $259,690. Of course, the amounts of the shortages are dra-
matic. But, Respondent had been losing money regularly
since June 1989. Absent some evidence of cash availabil-
ity—or more precisely, of cash shortage—on other days,
there is no evidence that the shortages on these 6 days had
been relatively greater than ones shown on similar reports for
earlier and later days. That is, it cannot be said that these
six reports disclose shortages so relatively greater than earlier
and later ones that temporary closure, and layoffs incident to
such closures, would naturally have been warranted as an ob-
jective solution on October 31 and on November 5 and 6.
Indeed, further difficulty for Respondent’s defense is
posed by closer examination of the six produced cash avail-
ability reports. Following the logic of Respondent’s defense,
its labor cost should have been reduced on those reports after
the 1- and 2-day layoffs for the weeks during which those
layoffs occurred. There should have been a consequent re-
duction in the ‘‘FACTORY PAYROLL’’ entry on each re-
port following the day of a layoff. That is, had Respondent
truly been as concerned in late October and early November
about its cash availability as it now contends, then its post-
layoff reports should have reflected the reduced factory pay-
roll, and concomitant week end cash availability increase, re-
sulting from the layoffs’ payroll savings. But the post-layoff
reports were never adjusted to reflect the factory payroll sav-
ings which Respondent now claims had motivated those lay-
offs. Instead, the entry ‘‘FACTORY PAYROLL 11/2’’ lists
an amount of $54,552 on all three reports for October 30 and
31 and November 1. Similarly, the report of November 2
lists ‘‘FACTORY PAYROLL 11/9’’ as amounting to
$37,705 and so too do the reports for that figure on Novem-
ber 5 and 6. Given the effect of not having to pay employees
for days when the plant had been closed, surely that figure
should have been reduced for days on and after the closures,
since the reports were prepared first thing each morning. And
1049RANGAIRE CO.
had Respondent truly been concerned about its labor cost at
the time of the layoffs, surely it would have been certain to
reflect the costs saved by them on its cash availability re-
ports. The fact that no such reduction was made on the re-
ports for October 31 and for November 1, 5, and 6 tends to
undermine Respondent’s argument that, during the weeks of
October 29 through November 2 and of November 5 through
9, it had truly been concerned with the cost of labor and with
its ability to issue paychecks for which funds were available
to pay employees for time worked.
Failure to have contemporaneously adjusted factory payroll
is not the lone discrepancy in Respondent’s defense.
McKenzie testified that his layoff and recall decisions had
been based upon the financial situation reflected by the daily
cash availability reports. Accordingly, those reports should
be dispositive of Respondent’s daily available cash under
McKenzie’s portrayal of the situation at that time. However,
Controller Henderson hedged when questioned about the ex-
tent to which McKenzie could have relied upon cash avail-
ability reports as a complete measure of daily available cash:
My people prepare the reports and then I work with
Joe. I talk to him about them. For instance, on cash, I
let him know at all times how tight the situation is, be-
cause the report might say one thing but it’s completely
different when you take everything into consideration.
Obviously, Henderson’s testimony is logical. But, if truthful,
it undermines McKenzie’s testimony that his reason for de-
ciding to temporarily close and layoff employees had been
based on Respondent’s cash situation as revealed solely by
the daily cash availability reports. If nothing else,
McKenzie’s testimony fails to disclose whatever other infor-
mation might have been conveyed to him by Henderson and,
accordingly, only partially reveals the reason for his decision.
In fact, Respondent produced no evidence of daily cash
availability beyond that revealed by the daily cash availabil-
ity reports.
Possibly a fourth aspect of timing is suggested by Re-
spondent’s reliance on the advice of Attorney Sears concern-
ing the payday statute. It appears to take great solace in its
defense from the fact that it had received an attorney’s ad-
vice supporting the closure and layoff decisions. Yet, Sears
did not claim that he had made a personal analysis of Re-
spondent’s books. So far as the evidence shows, his advice
had been based solely upon what he had been told about Re-
spondent’s financial situation by its officials, especially by
McKenzie. In consequence, attorney’s advice adds nothing to
Respondent’s defense.
As discussed above, however, Sears had provided advice
about the Texas statute by the week of October 20 through
24. Yet, McKenzie made no mention of it during his meet-
ings with Gattis on the first 2 days of the immediately fol-
lowing week, even though those meetings were devoted to
a review of Respondent’s financial situation. Seemingly,
given the proximity of his meetings with Sears and Gattis,
McKenzie would have said something to the latter about
what the former had said about the payday statute. Especially
should this have been the fact during the afternoon of Octo-
ber 30. For, consistent with Henderson’s practice of prepar-
ing cash availability reports each morning, by then McKenzie
would have possessed the October 30 cash availability report
that he now claims had been the basis for the layoffs result-
ing from the closure on October 31. Yet, McKenzie did not
claim that he had said anything about that decision to Gattis
on October 30 and McKenzie never explained why he had
not done so. In these circumstances, it is a fair inference that
the payday law became significant only after Respondent had
laid off the employees and needed to construct a legitimate
defense for having done so.
In the final analysis, it is not necessary to rely exclusively
on circumstantial evidence to evaluate the purpose for the
October 31 and November 5 and 6 plant closures and lay-
offs. Former Personnel Manager Cathy Stevens testified that,
immediately following conclusion of McKenzie’s October 30
meeting with Gattis and Hendrickson, there had been a brief
meeting of certain management officials: herself, McKenzie,
Cole, and a representative of Duncan Smith Investment
Group, whose name Stevens could not remember, but whom
she described as being short, slender, dark-haired and wear-
ing glasses. At that meeting, testified Stevens, McKenzie had
described what had occurred during his meeting with Gattis
and Hendrickson and, then, had asked, ‘‘what do we do now
[?]’’ According to Stevens, the unidentified man retorted:
‘‘Let’s shut it down and let them think about it,’’ to which
McKenzie ultimately replied, ‘‘Okay, let’s do it,’’ and di-
rected that a layoff notice be posted.
McKenzie testified that he never heard anyone make the
statement attributed by Stevens to the individual whose name
she could not remember. Indeed, the record discloses several
problems in connection with her testimony. For example, by
the time that she testified she had been laid off for economic
reasons by Respondent. Such a layoff could lead an individ-
ual to provide hurtful testimony against a former employer.
See, e.g., McDonnell Douglas Corp., 307 NLRB 536 (1992).
In addition she had come to the General Counsel’s attention
as a witness through her prehearing communication with
former Union Vice President Sherrie Barber who, herself, ap-
peared as a witness in support of the General Counsel’s com-
plaint. Seemingly, most significant was Stevens’ inability to
identify the individual to whom she attributed the offending
remark. Pressed on this point during recross examination by
counsel’s suggestion of the name Goodhue Smith, Stevens
testified, ‘‘I think that was his name. I knew it was a strange
name.’’ Yet, both McKenzie and Henderson described Good-
hue Smith as a tall man, weighing close to 200 pounds, who
did not wear glasses.
Stevens’ agreement to Goodhue Smith’s name was made
in response to counsel’s selection of it and, as the above
quotation shows, was only tentative. It did not represent a
firm identification. Moreover, McKenzie acknowledged that
Goodhue Smith had not been the lone Duncan Smith official
with whom Respondent had dealt. In any event, McKenzie
admitted that Goodhue Smith, in fact, had been present dur-
ing the October 30 management meeting when the decision
had been made to lay off the employees on the following
day. Although McKenzie testified that all he recalled Smith
having said about the layoffs had been ‘‘if we can’t meet
payroll, then we have to shut the plant down,’’ Smith, him-
self, was never called as a witness by Respondent to cor-
roborate that testimony by McKenzie, nor to contradict that
of Stevens. And as he was not called as a witness, it was
not possible to compare his actual appearance with the de-
scriptions of McKenzie and Henderson. At no point did Re-
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent represent that Smith was not available to it as a
witness. To the contrary, in the course of testifying,
McKenzie admitted that he had spoken with Smith that very
morning and that the latter had been in San Antonio. At no
point did McKenzie claim that Smith had said that he was
not able to make the relatively brief air trip from that city
to Fort Worth to appear as a witness on Respondent’s behalf
and to demonstrate that he was being correctly described by
McKenzie and Henderson.
Stevens appeared to be testifying candidly. Her account of
what a Duncan Smith representative had said on October 30
tends to be reinforced by the uncontroverted description of
a statement to Gattis by Cole during their November 14 ne-
gotiating meeting. When Gattis pointed out to Cole that the
two closures had harmed the possibility of working out a
compromise, because they had led employees to feel that
they were being forced, Cole replied ‘‘that he regretted that,
that it probably could have been handled differently,’’ and,
further, ‘‘that Mr. McKenzie had not dealt with unions be-
fore and probably was not aware that you can’t just unilater-
ally force things.’’ As was true of Smith, Respondent did not
call Cole as a witness, but never represented that he was un-
available to testify. Accordingly, not only did Cole not deny
having made those statements, but no explanation was pro-
vided of statements that, on their face, constitute an admis-
sion that McKenzie had laid off the employees to ‘‘unilater-
ally force’’ their acceptance of proposed modifications of
their bargaining agent’s contract with Respondent. Indeed,
consistent with Cole’s statement to Gattis, McKenzie con-
ceded that initially he had not been active in Respondent’s
affairs and that he had become ‘‘more and more involved’’
in its affairs only as Respondent’s financial situation became
progressively more perilous.
In view of the foregoing considerations, a preponderance
of the credible evidence supports the allegation that, in es-
sence, Respondent locked out its employees on October 31
and on November 5 and 6 to coerce them into consenting to
reopening and agreeing to modify the terms and conditions
of the existing collective-bargaining contract. This is not al-
lowed by the Act.
One ‘‘broad policy of the national labor law . . . is to fos-
ter productive and peaceful industry self-regulation.’’ Vienna
Sausage Mfg. Co., 252 NLRB 1317, 1319 (1980). ‘‘Industrial
stability depends in part on the binding nature of collective
bargaining agreements.’’ NLRB v. Keystone Consolidated In-
dustries, 653 F.2d 304, 307 (7th Cir. 1981). In recognition
of that fact, Congress has provided in Section 8(d) of the Act
that the duty to bargain collectively
shall not be construed as requiring either party to dis-
cuss or agree to any modification of the terms and con-
ditions contained in the contact for a fixed period, if
such modification is to become effective before such
terms and conditions can be reopened under the provi-
sions of the contract.
That is, ‘‘the policy behind the Act requires that no change
in those terms and conditions be made without the express
consent of the employees through their union.’’ NLRB v.
Keystone Consolidated Industries, supra. More pertinently in
the context of what has occurred in this case, ‘‘[t]he duty to
bargain in good faith . . . requires that the parties honor the
agreement without demanding bargaining over changes until
the period specified in Section 8(d).’’ Zimmerman Painting
& Decorating, 302 NLRB 856 (1991).
To be sure, as it points out, Respondent did not lay off
its employees on any days other than the three enumerated
in the complaint and, further, did not do so after a majority
of them had voted against contractual concessions on No-
vember 14. Yet, absence of retaliatory layoffs after that date
and failure to lockout employees on additional dates do not
render lawful the 3 days of lockout that Respondent did ef-
fect. Unlawful conduct is not immunized simply because a
respondent could have, but did not, commit unfair labor
practices on a broader scale. See, e.g., Dover Resources Co.,
307 NLRB 1236 (1992), and cases cited therein.
Furthermore, with regard to employee layoffs. Repondent’s
latitude was restricted. McKenzie testified that even tem-
porary closures might have led customers and suppliers to
fear that Respondent was about to fold and, accordingly,
might have caused some to abandon Respondent in favor of
alternative business relationships with more lasting promise.
As a result, with respect to layoffs to compel acquiescence
in contract modifications, Respondent was obliged to proceed
with caution. Its position had not been unlike that of a pitch-
er who tries to reduce a batter’s access to the outside of
home plate: he must try to move the batter back from the
plate with a brush back pitch close enough to get the batter’s
attention, but not so far inside that he hits the batter and puts
him on base. So too, Respondent had to lockout its employ-
ees long enough to get their attention—and, hopefully, secure
their agreement to reopen the contract and acquiesce in its
modification—but not so long that the temporary closures
would come to suppliers and customers’ attention and lead
them to cease doing business with Respondent. And, obvi-
ously, once a majority of unit employees had voted against
Respondent’s proposed concessions, it had nothing to gain,
and possibly much to lose, by retaliatory layoffs.
Therefore, I conclude that Respondent violated Section
8(a)(5) and (1) of the Act by closing its plant and by laying
off its employees on October 31 and on November 5 and 6,
1990, thereby effectively locking out those employees to
compel their agreement, and that of their bargaining agent,
to contract modifications during the fixed term of that con-
tract.
B. Denial of Extended Lunchbreak for
Thanksgiving 1990
McKenzie testified that, prior to Thanksgiving 1990, su-
pervisors had reported that one or two employees had in-
quired if their Thanksgiving lunchbreak would be extended
by 15 minutes. He further testified that he had made the de-
cision to deny that request. That decision, testified
McKenzie, had been made because his review of the collec-
tive-bargaining contract disclosed no provision for an ex-
tended Thanksgiving lunchbreak, because ‘‘Cole and some
other employees’’ had told him ‘‘that some time we had
done it and some time we hadn’t,’’ and because, after cal-
culating the total production time that would be lost by
granting an extended break that day, he had concluded that
Respondent could not afford to extend the Thanksgiving
lunchbreak:
1051RANGAIRE CO.
I knew that we were in a very precarious cash posi-
tion and realized also that the more I could move a raw
material or work in process through the production flow
to a sale, that I was increasing my cash availability, be-
cause I was moving from a 45 percent raw material and
WIP to a 60 percent finished goods to an 85 percent.
I was trying to get cash. So I told him to deny the
request because we couldn’t afford to do it at that time.
Respondent does not deny that McKenzie had made that
decision, and that it had been implemented, without provid-
ing prior notice to the Union and without affording the
Union an opportunity to bargain about that decision before
it was announced and implemented. Respondent’s failure to
do so has led the General Counsel to allege that Respondent
effected a unilateral change in violation of Section 8(a)(5)
and (1) of the Act.
Of course, an employer is not necessarily relieved of its
statutory duty to bargain about a particular term or condition
of employment simply because there is no mention of it in
an existing collective-bargaining contract. ‘‘It is well estab-
lished that, during the existence of a collective-bargaining
contract, a union has a right to bargain about the implemen-
tation of a term and condition of employment, and an em-
ployer must bargain about a mandatory subject of bargaining
not specifically covered in the contract or unequivocally
waived by the union.’’ GTE Automatic Electric, 240 NLRB
297, 298 (1979). Nor is an employer relieved of that statu-
tory obligation because the change is motivated solely by
genuine economic considerations. ‘‘It is irrelevant that the
company’s action was based on compelling economic consid-
erations.’’ NLRB v. W. R. Grace & Co., 571 F.2d 279, 283
(5th Cir. 1978).
Respondent contends that the evidence fails to establish
that there truly had been a practice of granting a Thanks-
giving lunchbreak extension of 15 minutes. Yet, bargaining
committee member James Michael Whitehead, who had been
employed at the Cleburne plant ‘‘[g]oing on 16 years’’ when
he appeared as a witness, testified that although the Thanks-
giving lunchbreak extension had been granted only ‘‘[m]ost
of the time,’’ nevertheless the extension ‘‘had been annual
for, like I say, the last ten years.’’ Aside from McKenzie’s
above-referenced testimony as to what he had been told by
‘‘Cole and some other [unidentified] employees,’’ Respond-
ent presented no particularized evidence refuting Whitehead’s
seemingly candid description of the Thanksgiving lunchbreak
period practice over the course of the preceding decade. Ob-
viously, the Cleburne plant had not been operated by current
ownership for most of that period. Yet, McKenzie testified
that, in accepting the obligations of the existing collective-
bargaining contract, ‘‘I wanted [Respondent] to continue in
the tradition that it had,’’ and part of that tradition had been
a number of consecutive years during each of which employ-
ees had been awarded a 15-minute extension of their Thanks-
giving lunchbreak. Indeed, Respondent did not dispute
Whitehead’s specific testimony that, ‘‘The first year that the
new company had taken over, we were granted it.’’
That, however, does not end consideration of Respondent’s
1990 change in the Thanksgiving lunchbreak practice. For,
among Respondent’s arguments concerning that break is one
directed to the nature of the subject matter. That is, Respond-
ent argues that the employment term changed at Thanks-
giving of 1990 was only a de minimis or ‘‘token item.’’ In
fact, that characterization appears apt and, moreover, pertains
to an aspect of unilateral change analysis that is dispositive
of the General Counsel’s allegation concerning denial of the
extra 15-minute break in 1990.
‘‘The Board has recognized that not every minor unilateral
change in working conditions constitutes an unfair labor
practice. To violate Section 8(a)(5), the change in working
conditions must be ‘material, substantial and significant.’’’
Xidex Corp. v. NLRB, 924 F.2d 245, 253 (D.C. Cir. 1991).
‘‘For a unilateral change to be unlawful, it must be ‘material,
substantial and significant.’’’ Litton Systems, 300 NLRB 324
(1990). A preponderance of the evidence fails to support a
conclusion that elimination of a 15-minute extension of
lunchbreak on one occasion in 1990 satisfies that test.
Neither the Board nor the circuit courts of appeals have
enunciated a formula for measuring the materiality, substan-
tiality and significance of changes in employment conditions.
However, certain factors or areas for scrutiny have been
identified for making such evaluations. In rejecting the Gen-
eral Counsel’s argument that loss of ‘‘a grace period of a
couple of minutes,’’ as a result of installation of a buzzer
system to signal break endings, was material, substantial and
significant, the Board held in Litton Systems that, ‘‘[b]ecause
any change pursuant to the buzzer system did not have a
meaningful impact on the employees’ terms and conditions
of employment, we dismiss the allegation.’’ Here, Respond-
ent’s change involved but a few minutes of extended break
time on a single occasion and, in the overall content of its
relations with its employees, appears ‘‘not [to] have a mean-
ingful impact on the employees’ terms and conditions of em-
ployment.’’ Certainly, there has been no showing that Re-
spondent intended, or had even considered whether or not, to
deny the extended lunchbreak for Thanksgiving in succeed-
ing years.
It is accurate that Respondent had also told the employees
that there would not be an extended lunchbreak on Christ-
mas. Yet, there is no allegation that there had been an actual
denial of that particular extended break. Nor is there an alle-
gation that announcement of its discontinuance in 1990 had
violated the Act in any respect. In fact, there was no litiga-
tion whatsoever concerning the Christmas lunchbreak. Con-
sequently, any denial of an extended Christmas lunchbreak
neither adds to or detracts from analysis of the denied ex-
tended lunchbreak for Thanksgiving. The latter must be ana-
lyzed without regard to what may or may not have occurred
a month later.
To be sure, as concluded in subsection III.B, supra, and
in subsection III,D, infra, Respondent denied the extended
Thanksgiving lunchbreak in a context of prior and subse-
quent unfair labor practices. Nevertheless, of themselves, the
existence of other unlawful actions does not necessarily serve
to elevate employment terms that are not material, substantial
and significant to the status of ones that do attain that level.
Had the denial of an extended lunch period been an ele-
ment in an overall campaign to intimidate employees, or had
it been the product of some other unlawful motivation, the
situation would be different. ‘‘Had the lunch break change
occurred in isolation, with no other manifestation of the em-
ployer’s opposition to the union, we might be more inclined
to conclude that the two-day lunch break change did not con-
stitute an independent violation of the Act.’’ Xidex Corp. v.
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB, supra at 14. But, in contrast to the complaint’s allega-
tion of a lockout to unlawfully compel employees into re-
opening and modifying the contract, no similar allegation is
made concerning Respondent’s reason for denying a 15-
minute extended lunchbreak for Thanksgiving in 1990. In-
deed, in her brief, counsel for the General Counsel disavows
specifically any such contention predicated upon Respond-
ent’s reason for the denial:
As the Complaint does not allege that McKenzie’s re-
fusal also violated Section 8(a)(3) of the Act, Counsel
for the General Counsel will refrain from discussion of
whether the refusal could be interpreted as retaliation
against the employees for refusing to agree to Respond-
ent’s proposed concessions.
Furthermore, the record does not disclose any natural
nexus between Respondent’s decision to deny an extended
1990 Thanksgiving lunchbreak and the events at issue in the
immediately preceding and subsequent subsections, such that
it can be concluded that the former was related to the lat-
ter—that the Thanksgiving lunchbreak decision was an inte-
gral component of an overall series of actions intended to
interfere with, restrain and coerce its employees’ exercise of
statutory rights. Nor, for that matter, does the record disclose
any ‘‘other manifestation of [Respondent’s] opposition to the
[U]nion.’’ Id.
In sum, the change pertained to an employment term that
had no relation to work performance or other employment-
related factors. It was not unlawfully motivated nor part of
an overall scheme to undermine support for the Union. There
is no evidence that it represented a permanent change in Re-
spondent’s approach to extended Thanksgiving lunch periods
and that it effected a permanent alteration of the employee-
employer relationship. Rather, so far as the evidence shows,
the change was of slight and limited duration, with limited
impact and effect on the employees’ terms and conditions of
employment. Therefore, I conclude that the General Counsel
has failed to establish that a single denial of a 15-minute ex-
tended lunch period constituted a material, substantial, and
significant change that violated Section 8(a)(5) and (1) of the
Act.
D. The 1-Week Change in some Unit Employees’
Work Schedule
A contrary result is warranted with regard to the allegation
that, on or about November 27, 1990, Respondent changed
certain employees’ hours of employment. In its brief, Re-
spondent concedes that ‘‘it is undisputed that from Tuesday,
November 27 until Monday, December 3, 1990, certain em-
ployees in Respondent’s paint shop and on its conveyor line
worked four 10-hour days rather than five 8-hour days, as
they had previously worked.’’ However, Respondent con-
tends that the collective-bargaining contract permitted it ‘‘to
change these employees’ schedules, on a temporary basis, at
its discretion,’’ and, further, that a bargaining committeeman
and the Union’s financial secretary had been given prior no-
tice of the change and had agreed to it.
In support of its first argument, Respondent points to arti-
cle IV, section 1 of the contract, the management rights pro-
vision, which accords to Respondent ‘‘sole and exclusive
rights, duties, and responsibilities to direct the operations of
the employer and its working force,’’ including explicitly
‘‘schedules of production.’’ The difficulty with that argument
is that at no point in article IV, section 1, nor at any other
place in the contract, is Respondent allowed to exercise con-
tractual management-rights to the extent of nullifying or re-
writing other specific provisions of the contract. That is,
there is no evidence that the management rights clause enti-
tled Respondent to make midterm modifications in express
contractual provisions.
In that regard the General Counsel points to article XV,
the portion of the contract pertaining to hours of work and
overtime. Its preamble provides specifically that, ‘‘The regu-
lar work week for all employees shall consist of five (5) con-
secutive eight (8) hour days exclusive of meal time, Monday
through Friday.’’ In addition, section 3(d) of that article
states, inter alia: ‘‘There shall be an established starting and
quitting time. This time shall not be changed unless at least
five (5) working days advance notice is given.’’ Respond-
ent’s notice to employees announcing the change stated,
‘‘The Paint & Conveyor Line Departments will work 4 - 10
hour shifts (Monday thru Thursday). The Departments will
NOT work on Friday.’’ On its face, that notice announces a
modification of the above-quoted provisions in article XV.
However, Respondent argues that, notwithstanding the
above-quoted provisions, the contract did allow it to make
temporary schedule changes in the workweek. For over a
decade Attorney Franklin R. Sears had represented Respond-
ent’s predecessor in negotiating collective-bargaining con-
tracts with the Union. He testified that, in connection with
a change in 1984 that eliminated, inter alia, daily overtime
independent of calculating total weekly time in excess of 40
hours, the Union’s representative had agreed to allow the
company ‘‘the flexibility to change the work week around,
some departments going to four ten-hour days as opposed to
five eights’’ and, moreover, to allow such changes to be
made without prior notice. No evidence was presented to
contradict that testimony, although there was no representa-
tion of unavailability of union representatives who had par-
ticipated in the 1984 negotiations described by Sears.
Nonetheless, as the General Counsel points out, Sears ad-
mitted that the Union’s agreement to allow those changes
was never spelled out in the contract. Nor is permission to
change the workweek necessarily inferred from the changes
made in article XV, section 3(a), the contractual provision to
which Sears referred in describing the Union’s agreement to
allow workweek changes to be effected. In contracts prior to
1984 that provision read:
Hours worked in excess of eight (8) during any single
regular work day. (A work day is defined as a calendar
day.) All hours worked in excess of forty (40) during
given work week will be paid for at the rate of time
and one-half.
All work performed on Saturday will be paid for at
the rate of time and one-half.
All work performed on Sundays and all work in ex-
cess of twelve (12) hours during any day will be paid
for at double time the straight time rate.
Daily and weekly overtime will not be pyramided for
purposes of computing overtime pay.
1053RANGAIRE CO.
In the contract negotiated during that year and in the most
recent one, that subsection reads:
All hours worked in excess of forty (40) during a given
work week will be paid for at the rate of time and one-
half (1 1/2).
All work performed on Saturday will be paid for at
the rate of time and one-half (l 1/2) provided that the
employee has worked all other scheduled hours of em-
ployment during the work week.
All work performed on Sundays will be paid for at
double-time the straight-time rate.
Neither the remaining language nor the language omitted as
of and since 1984 allows even an inference that the contract
permits modification of the express terms of the preamble of
article XV and of its section 3(d).
In any event, comparison of Sears’ testimony with Re-
spondent’s November change shows that the former’s de-
scription of the Union’s agreement does not apply to the
workweek change made by Respondent at that time. Sears
testified that the Union had agreed only that there would be
‘‘[n]o notice requirement on a temporary change.’’ He de-
scribed the parties’ agreement as to what would constitute a
change regarded as temporary as having been ‘‘anything that
was a work week or less was just simply considered to be
a temporary change.’’ More specifically, in describing the
particular agreement of the Union’s representatives in 1984,
Sears testified:
For a week or less, he said that, you know, people
can generally make temporary accommodation. But he
said, ‘‘If we’re going to do this—if the company is
going to change departments to four tens for more than
a week, then they would expect to have this notice.’’
This is basically what we went through in the course
of negotiating and ultimately agreeing to the change.
To be sure, Respondent’s 10-hour workdays lasted for no
more than 5 workdays. However, the record shows that that
had not been its intended duration when initially announced
and implemented. Lighting Supervisor Bonny Fowler testi-
fied that Respondent had planned ‘‘to start it on the 3rd, I
think, of December and run it through for 30 days till Janu-
ary 3rd.’’ In fact, before actually implementing the change,
Respondent’s supervisors directly approached each employee
who would be affected and requested each one to sign an
agreement consenting to the change: ‘‘I llll agree to
work 4 - 10 hour shifts per day (Monday thru Thursday). 10
hour shifts will start December 3, 1990 and end January 3,
1991.’’ Accordingly, regardless of an agreement permitting
Respondent to unilaterally make workweek schedule changes
of no more than 5 days, a more prolonged period for the No-
vember workweek change was contemplated by Respondent
when it announced and initially implemented that change.
Consequently, any informal understanding about notice re-
garding 5-day or less workweek changes is inapplicable to
the change implemented in November. That situation is not
altered by the fact that happenstance later altered the actual
duration of Respondent’s originally announced change.
Respondent further argues that it gave advance notice of
the change to the Union’s financial secretary and, also, to a
member of the Union’s bargaining committee. Moreover, ar-
gues Respondent, not only was there no request to bargain
about it, but the ‘‘Union representatives in fact agreed to the
temporary schedule change.’’ That argument could have
merit when applied to a unilateral change in noncontractual
employment terms and conditions. However, it is not an ade-
quate defense to the midterm modification of contract terms
which occurred here. ‘‘If the mandatory subject of bargaining
which the employer wishes to change is the subject of a pro-
vision in a collective bargaining agreement, the employer
commits an unfair labor practice if it changes that condition
without the permission of the union.’’ Standard Fittings Co.
v. NLRB, 845 F.2d 1311, 1315 (5th Cir. 1988). That permis-
sion is not deemed to have occurred simply because an em-
ployer directly approaches each unit employee and secure
oral or, as here, written agreement of each one to make the
modification. To the contrary, of itself, such conduct violates
the Act because it constitutes direct bargaining with rep-
resented employees in complete disregard of their designated
bargaining agent. See Medo Photo Supply Corp. v. NLRB,
321 U.S. 674, 684 (1944).
Even the evidence construed most favorably to Respond-
ent’s position fails to support a conclusion that it had secured
the statutorily required permission to the November-Decem-
ber workweek schedule modification. Fowler testified that
both Whitehead and financial secretary Aldredge, the two
union officials approached about the change, had said that
they would work the new schedule without filing a grievance
about it. Whitehead denied having told that to Fowler. And
the fact that he immediately did file a grievance concerning
the change tends to reinforce that denial and to refute Fowl-
er’s description of Whitehead’s purported agreement to it.
However, the crucial consideration is that Fowler conceded
that he had discussed the change with Whitehead and
Aldredge ‘‘as employees asking them to work[.]’’ Further, it
is not controverted that before any of Respondent’s officials
spoke to Whitehead about the change, they had already spo-
ken with two or three other employees about it. Thus, White-
head testified, without contradiction, that ‘‘they come to me
about third or fourth [regarding the intended change].’’ In
short, the evidence fails to show that Respondent had been
attempting to negotiate with Whitehead and Aldredge. When
its officials discussed the change with Whitehead, they had
been doing so not because of his bargaining committeeperson
status, but instead had been seeking his agreement to accept
a work schedule change as one of a number of employees
affected directly by that change. There is no evidence that
the approach to Aldredge had been intended or carried out
any differently.
Although Aldredge occupied the position of union finan-
cial secretary, there is no evidence whatsoever that her posi-
tion authorized her to negotiate and conclude agreements to
modify the existing collective-bargaining contract’s terms
and conditions. To be sure, contracts for the Cleburne facility
had been signed on behalf of the Union by, inter alia, bar-
gaining committee members. Yet, there is no evidence that
a single committee member, such as Whitehead, possessed
authority to negotiate modification of contract terms, simply
because he had been one of a number of signatory committee
members who had participated in negotiation of that contract.
Consequently, even had Fowler truly described Whitehead’s
purported consent to modification of the contractual work-
week schedule, there is no evidence that, in the cir-
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cumstances, Whitehead had authority to bind the Union, the
bargaining agent for all unit employees, to midterm contract
changes. Nor did any of Respondent’s officials claim to have
personally believed that Whitehead, on his own, possessed
authority to strike midterm modification agreements on be-
half of the Union.
Therefore, I conclude that a preponderance of the evidence
supports the allegation that Respondent violated Section
8(a)(5) and (1) of the Act by its change in the workweek
schedule in November 1990.
E. Refusal to Continue Honoring the
Checkoff Provision
The 1987–1990 collective-bargaining contract contains two
provisions pertinent to the General Counsel’s final allegation.
The first is article XX which requires that voluntarily exe-
cuted dues-checkoff authorizations be honored and that the
money deducted from wages be remitted to the Union. Re-
spondent admits that it ceased doing so after April 25, 1991.
In contesting the General Counsel’s resulting allegation that
the cessation violated Section 8(a)(5) and (1) of the Act, Re-
spondent contends at the outset that the contract terminated
on that date and, accordingly, so too did its obligation to
honor the checkoff provision. See Bethleham Steel Co. (Ship-
building Div.), 136 NLRB 1500, 1502 (1962).
Article XXIII of the 1987–1990 contract, the second one
pertinent to this particular allegation, provides:
This Agreement replaces all other prior Agreements
between the Company and the Union and shall be in ef-
fect and binding on both parties hereto from the 25th
day of April, 1987, through the 25th day of April,
1990, and shall continue year to year thereafter unless
notice is given in writing by either party to the other
of the desire to amend, change or terminate this Agree-
ment. Then and in that event, said notice shall be given
at least sixty (60) days prior to the 25th day of April,
1990, or sixty (60) days prior to any yearly anniversary
date thereafter.
As described in subsection III,A, supra, in 1990 the parties
executed a memorandum of understanding, extending that
contract with modifications. That memorandum provides that,
‘‘The current labor agreement will be modified as stated in
the following agreement.’’ With regard to the contract’s
modified duration, the memorandum states:
(2) Current contract with agreed modification will be
extended and remain in effect until April 25, 1991, at
midnight.
If either party desires to amend, change or terminate
this agreement, then in that event said notice shall be
given at least sixty (60) days prior to the 25th of April,
1991.
Respondent contends that article XXIII’s ‘‘evergreen’’ lan-
guage perished when the parties reopened the 1987–1990
contract and, after the memorandum’s execution, contract ter-
mination became governed exclusively by the above-quoted
language in that memorandum—language which makes no
provision for automatic renewal after April 25, 1991. How-
ever appealing or unappealing that argument may appear, it
is not necessary to address it. For, a preponderance of the
evidence supports one of Respondent’s alternative arguments:
that sufficient ‘‘notice [was] given at least sixty (60) days
prior to the 25th day of April, 1991,’’ and, as a result, pre-
cluded any automatic renewal that otherwise could nor might
have occurred under the memorandum’s terms.
Respondent’s vice president of manufacturing, Michael A.
Morris, sent an undated reopening letter which the Union ad-
mittedly received. There is no contention that the letter had
been substantively inadequate to prevent contract renewal,
had it been timely. However, Gattis testified that the Union
had not received that letter until the late morning of Tuesday,
February 26, 1991, less than 60 days before April 25, 1991,
and, in consequence, too late to satisfy the memorandum’s
stated timeliness requirement.
To be timely in preventing automatic renewal of a collec-
tive-bargaining contract, a reopening notice must not only be
timely sent, but also must be actually received by the other
party before the contractually specified renewal date. See,
e.g., Se-Ma-No Electric Cooperative, 284 NLRB 1006
(1987). Respondent does not contest that, in accordance with
that principle, a reopening notice would be untimely if actu-
ally received by the Union on February 26, 1991, nor that,
to be timely, its letter had to be received by the Union no
later than Sunday, February 24, 1991. However, it argues
that I should not credit Gattis’ testimony that Morris’ letter
had not been received by the Union until Tuesday, February
26, 1991. I agree.
When testifying about this matter, Gattis did not appear to
be doing so candidly. He claimed that at approximately 11
a.m. on Tuesday, February 26, 1991, he had observed the
postman enter the union hall where Gattis’ office is located
and leave the mail with a clerical who, in turn, brought to
Gattis the letters addressed to him. One of those letters,
claimed Gattis, had been the reopening letter from Morris.
After opening it, testified Gattis, he had shown it to Leroy
Brannom, a sister local’s bargaining committeeperson and an
individual with whom Gattis had been conversing when the
mail had arrived that morning: ‘‘a fellow named Leroy
Brannom was there in my office, a member from 370. I
showed it to him and let him read it.’’ In addition, Gattis tes-
tified, ‘‘I may have shown it to Neal Catlett, the president
of Local 370.’’ Gattis further testified that he had contacted
bargaining committee president Shivers on February 27, had
informed Shivers of the letter’s receipt, and had ‘‘asked him
if he had gotten any notice on it, had the company said any-
thing to him verbally or gave [sic] him any written request,
or did he have knowledge of it; and he said he didn’t.’’
In the course of challenging Respondent’s contention that
the reopening letter had been placed in the mail on Thursday,
February 21, 1991, the General Counsel criticizes its failure
to call Morris as a witness ‘‘to testify regarding why he
failed to date the letter, as well as why he waited until
Thursday, February 21, 1991, to mail a letter that required
receipt by the Union on or before Sunday, February 24,
1991.’’ Yet, identical reasoning applies with regard to Gattis’
description of his asserted receipt of that letter on Tuesday,
February 26, 1991.
Not one of the people to whom Gattis referred in connec-
tion with the events surrounding the letter’s purported receipt
that day was called to corroborate his description of their as-
serted participation: not Brannom, to whom the letter sup-
1055RANGAIRE CO.
posedly had been shown after Gattis opened the envelope
and read it; not Catlett, to whom Gattis may later have
shown the letter; and, not Shivers, with whom receipt of the
letter assertedly had been discussed. True, Gattis testified
that Brannom ‘‘had a medical disability’’ and ‘‘has a doc-
tor’s appointment.’’ But there was no representation either
that the appointment could not have been changed or that the
General Counsel could not have arranged for Brannom to ap-
pear as a witness on some other day. And regardless of
Brannom’s availability, at no point did Gattis testify, nor did
the General Counsel represent, that Catlett and Shivers, or ei-
ther one, had been unavailable to testify as a witness. Yet,
neither one appeared to corroborate Gattis’ account of their
involvement following receipt of Morris’ letter.
Furthermore, for so seemingly straightforward a sequence
of events, when testifying Gattis seemed unable to put to-
gether a consistent description of what had occurred in con-
nection with the purported receipt of Morris’ letter on Feb-
ruary 26, 1991. For example, he first testified that when he
had opened the envelope containing the letter, ‘‘the first
thing I noticed’’ was that it was undated, adding ‘‘It’s the
only letter I ever got that way that didn’t have a date typed
on the face of it.’’ But later he retracted that account of hav-
ing noticed the lack of a date when he had first seen the let-
ter:
Q. And that the first thing that you noticed was that
it was undated; correct?
A. Right. Well, I wouldn’t say it was the first thing.
No, it wasn’t the first thing.
The first thing I noticed when I read it, I though
umm, you know. It was in a plain envelope and all. I
thought, well, this kind of thing usually comes certified.
I looked and I said, ‘‘There’s not even a date on it.’’
Similarly, in the course of explaining why he did not have
the envelope in which Morris’ letter had been received—and
which might have shown a postmark consistent with Re-
spondent’s evidence that it had been mailed from Cleburne
on February 21, 1991—Gattis initially testified that he had
thrown away the envelope after opening it and removing the
letter from it: ‘‘I make a habit of when I open mail, I’ve got
a wastecan there, you know; and when I first got the letter,
I thought it was to do with some grievance that we had.’’
However, further cross-examination pursued the subject of
the envelope’s postmark as potential evidence of the letter’s
possible untimeliness as contractual notice, with an overtone
of unlikelihood that a recipient would discard such potential
evidence. And, ultimately, Gattis reversed his initially simple
and seemingly straightforward account of the envelope’s dis-
position: ‘‘I don’t know when I threw it away. I inadvert-
ently—I may have thrown it like I do my others. But I laid
it down there. I let another person read the letter. And I have
lost it or misplaced it somewhere.’’
No doubt mistakes about a transaction’s detail are hardly
uncommon and, standing alone, may not necessarily warrant
disbelief of a witness’ testimony. Here, however, the internal
inconsistences in Gattis’ testimony reinforce his seeming lack
of candor, displayed when testifying, about the letter’s re-
ceipt. Coupled with that appearance and the lack of any cor-
roboration for his description of the purported events of the
mail’s receipt on February 26, 1991, when it seemingly was
within the General Counsel’s ability to provide such corrobo-
ration had it existed, they confirm my conclusion that Mor-
ris’ letter had not been received as late as that date.
That the letter had not been received so late does not dem-
onstrate the converse: that it had been received by Sunday,
February 24, 1991. Yet, that Gattis provided testimony lack-
ing in candor about the receipt of Morris’ letter is some indi-
cation that he was trying to conceal something. See, e.g.,
Shattuck Denn Mining Corp. (Iron King Branch) v. NLRB,
362 F.2d 466, 470 (9th Cir. 1966). And in the circumstances,
that ‘‘something’’ could only be the actual date of receipt of
Morris’ letter. Certainly, Gattis had good reason to avoid ac-
knowledging actual timely receipt of that letter. Given Re-
spondent’s past financial condition, there was every likeli-
hood that Respondent would pursue its quest for concessions
during negotiations in 1991. Renewal of the existing contract
would postpone for another year the Union’s need to con-
front those types of proposals. Indeed, the Union, itself, did
not make any effort in 1991 to modify, change, or terminate
the contract so that a successive one could be negotiated.
Gattis’ lack of candor about the letter’s receipt and the
Union’s motivation for not reopening the contract do not
stand alone as evidence, by way of inference, of timely re-
ceipt of Morris’ letter. Receptionist Angie Nutt testified that
she had typed and, after Morris signed it, had posted the re-
opening letter on Thursday, February 21, 1991. In fact, she
testified that she had taken three envelopes, each with one
copy of the letter, to the mailroom on that date: one ad-
dressed to the Union, another addressed to the Federal Medi-
ation and Conciliation Service, and the third addressed to Re-
spondent’s counsel. The last copy was produced during the
hearing. The following notation pertaining to its receipt ap-
peared on it: ‘‘Stamped received, February 22nd, 1991.’’
There is no basis for concluding that Nutt actually had
mailed, or likely would have mailed, that copy on a date
other than the day on which she had mailed the copy to the
Union. Accordingly, counsel’s receipt of the letter on Feb-
ruary 22, 1991, renders virtually unassailable Nutt’s testi-
mony about the mailing of it and the other two copies, in-
cluding the one to the Union, on February 21, 1991, 3 days
before the final date allowable for timely reopening of the
contract.
Of course, as discussed above, it is the date of receipt, not
mailing, that governs timeliness of reopening letters. Re-
spondent could have provided proof of actual receipt had its
reopening letter been sent by certified or registered mail, or
even had it faxed the letter to the Union as it had done with
other communications. However, even though either course
would have strengthened its position, the Act does not re-
quire a party to pursue the best possible course in giving re-
opening notice. Less than perfection suffices, so long as it
is adequate in the circumstances. In that regard, two facts are
significant in this case.
First, by later mailing letters from Cleburne that were re-
ceived on the second day thereafter in Little Rock, Respond-
ent showed that transit of mail between the two sites could
be accomplished within 2 days, i.e., by a Saturday for a letter
mailed on a Thursday. Second, while Gattis testified that the
union hall in which his office is located is not ‘‘normally
open on Saturday,’’ he conceded that ‘‘If any mail comes on
Saturday, then it will [be] there for the following Monday.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
We have a mail drop slot that they can stick it through.’’ Al-
though actual receipt of a reopening letter is necessary for
it to be timely, there is no added requirement that it must
be read to be effective. Indeed, such a requirement would
only open an avenue for parties to avoid contract reopening
by simply leaving unopened envelopes in which such notices
are sent. Consequently, so long as Morris’ letter had been de-
posited in the hall where Gattis’ office is located, receipt had
been perfected.
In the final analysis, given the state of the evidence, there
can be no certainty about the actual date of delivery of Mor-
ris’ reopening letter to the Little Rock union hall where
Gattis maintains his office. However, certainty is not the req-
uisite standard of proof in cases arising under the Act. Here,
the record establishes that Nutt had posted Morris’ letter 3
days before February 24, 1991, that mail posted in Cleburne
could be received 2 days later in Little Rock, and that deliv-
ery of mail to the site of Gattis’ office could have been made
on Saturday, February 23, 1991, even though no personnel
worked there on Saturdays. Those facts satisfy Respondent’s
burden under the Act of going forward with evidence of like-
ly receipt of Morris’ latter prior to February 24, 1991. Given
the Union’s seeming desire not to reopen the contract, and
confront possible concessions proposals from Respondent,
and, further, given the absence of credible evidence showing
that the letter had actually been received after February 24,
1991, I conclude that the General Counsel—who bears the
ultimate burden of showing every element of a claimed vio-
lation of the Act, Western Tug Corp., 207 NLRB 163 fn. 1
(1973)—has failed to establish by a preponderance of the
evidence that the Union’s contract continued in force after
April 25, 1991, and that Respondent violated Section 8(a)(5)
and (1) of the Act by failing to continue making checkoff
deductions after that date.
CONCLUSION OF LAW
Rangaire Acquisition Corporation and GSL Rangaire Cor-
poration d/b/a Rangaire Company committed unfair labor
practices affecting commerce by locking out employees on
October 31 and on November 5 and 6, 1990, to coerce them
into acquiescing to midterm modification of a collective-bar-
gaining contract, and by changing the contractually specified
workweek schedule between November 27 and December 3,
1990, without securing agreement to do so from the collec-
tive-bargaining agent. However, it has not violated the Act
in any other manner alleged in the consolidated complaint.
REMEDY
Having found that Rangaire Acquisition Corporation and
GSL Rangaire Corporation d/b/a Rangaire Company engaged
in certain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and, further, that it be
ordered to take certain affirmative action to effectuate the
policies of the Act. With respect to the latter, it shall be or-
dered to observe the terms of any collective-bargaining con-
tract with Allied Industrial Workers of America, Local 424—
as the bargaining agent of all production and maintenance
employees, excluding office clerical employees, draftsmen,
engineering technicians, professional employees, guards,
watchmen and supervisors as defined in the Act—and to re-
frain from making changes in those terms before reaching
uncoerced agreement to do so with that labor organization.
Further, it shall be ordered to make whole all employees in
the above-described appropriate bargaining unit for any loss
of pay and benefits suffered because they were unlawfully
locked out on October 31 and on November 5 and 6, 1990,
and because of unlawful changes in their contractually speci-
fied workweek schedule from November 27 to December 3,
1990, with backpay to be computed as provided in F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest to
be paid on the amounts owing as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Rangaire Acquisition Corporation and
GSL Rangaire Corporation d/b/a Rangaire Company,
Cleburne, Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Changing or modifying contractually specified work-
week schedules or any other term and condition of a collec-
tive-bargaining contract during its effective term with Allied
Industrial Workers of America, Local 424, as the collective-
bargaining agent of employees in an appropriate bargaining
unit of:
All production and maintenance employees employed
by Rangaire Acquisition Corporation and GSL Rangaire
Corporation d/b/a Rangaire Company at its Cleburne,
Texas, facility; excluding office clerical employees,
draftsmen, engineering technicians, professional em-
ployees, guards, watchmen and supervisors as defined
in the Act.
(b) Locking out, laying off, or otherwise attempting to co-
erce employees into accepting changes in the terms and con-
ditions of a collective-bargaining contract during its effective
term.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Observe and refrain from making changes during the
term of a contract in contractually specified workweek
schedules and other terms and conditions of collective-bar-
gaining contracts with Allied Industrial Workers of America,
Local 424, as the collective-bargaining agent of employees in
the appropriate bargaining unit described in paragraph 1,a,
above.
(b) Make whole all employees in the bargaining unit de-
scribed in paragraph 1,a, above, for any loss of pay and ben-
efits they suffered because they were unlawfully locked out
on October 31 and on November 5 and 6, 1990, and because
of unlawful changes in their contractually specified work-
1057RANGAIRE CO.
3 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.’’
week schedule from November 27 to December 3, 1990, in
the manner set forth above in the remedy section.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Cleburne, Texas facility copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the notice, on
forms provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent 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
Respondent 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 Respondent has
taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint be
dismissed insofar as it alleges violations of the Act not found
herein.