Tecumseh Packaging Solutions, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 2008

352 N.L.R.B. 694 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 87
694
Tecumseh Packaging Solutions, Inc. and United Steel,
Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers
International Union, AFL–CIO. Case 7–CA–
49861
June 2, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On July 16, 2007, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, and the Respondent filed an answering
brief.
The National Labor Relations Board has considered
the judge’s decision and the record in light of the excep-
tions1 and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.2
The judge found that the Respondent did not violate
Section 8(a)(1) of the Act by promulgating and maintain-
ing an overly broad no-loitering rule. We disagree. In
Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), the Board found that a rule prohibiting
“[l]oitering on company property (the premises) without
permission from the Administrator” violated Section
8(a)(1) of the Act because it would reasonably chill em-
ployees in the exercise of their Section 7 rights. Id. at
655. In so finding, the Board explained that “employees
could reasonably interpret the rule to prohibit them from
lingering on the [r]espondent’s premises after the end of

1 No exceptions were filed to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) and (5) of the Act by unilaterally implement-
ing the following changes in the unit employees’ terms and conditions
of employment: a wage increase, changes in health insurance, a change
in the manner of calculating overtime hours, a new 401(k) plan, and a
new employee handbook. There were also no exceptions to the judge’s
findings that the Respondent violated Sec. 8(a)(5) by effectuating a
complaint procedure contained in the unlawfully implemented hand-
book, and Sec. 8(a)(1) by maintaining work rules containing overly
broad solicitation and distribution prohibitions.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
We will modify the judge’s recommended Order to conform to the
violations found and to the Board’s standard remedial language. We
will also substitute a limited bargaining order for the judge’s recom-
mended affirmative bargaining order in accordance with Mimbres
Memorial Hospital, 337 NLRB 998, 998 fn. 2 (2002). We will substi-
tute a new notice to conform to the Order as modified.
a shift in order to engage in Sec[tion] 7 activities, such as
the discussion of workplace concerns.” Id. at 649 fn. 16.
In this case, the work rule at issue prohibits “[l]oitering
on Company property after working hours[.]” As in Lu-
theran Heritage, employees could reasonably interpret
the rule to prohibit Section 7 activity.
The Respondent raises various concerns that may
prompt an employer to ban after-hours loitering, such as
prevention of violence and avoidance of liability for ac-
cidents and injuries. Such concerns may well be legiti-
mate, but our decision does not prevent employers from
maintaining rules and policies tailored to those concerns.
What employers may not do, however, is maintain over-
broad no-loitering rules that reasonably tend to chill the
exercise of Section 7 rights.3
ORDER
The National Labor Relations Board orders that the
Respondent, Tecumseh Packaging Solutions, Inc., Te-
cumseh, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining employee work rules containing
overly broad prohibitions against loitering, solicitation,
or distribution.
(b) Refusing to bargain with the Union as the represen-
tative of its employees in an appropriate bargaining unit
by making unilateral changes in their terms and condi-
tions of employment.
(c) Giving effect to a complaint procedure contained in
its unilaterally implemented employee handbook.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its overly broad work rules prohibiting so-
licitation and distribution of union material during work-
ing hours and loitering on company property after work-
ing hours.
(b) Upon request of the Union, rescind the unilateral
changes to unit employees’ wages, health insurance,

3 We reject the Respondent’s suggestion that Adtranz ABB Daimler-
Benz Transportation v. NLRB, 253 F.3d 19 (D.C. Cir. 2001), supports
the judge’s decision. Adtranz is distinguishable on two grounds. First,
Adtranz concerned employer rules barring abusive and threatening
language and limiting solicitation and distribution in the workplace
during working time—not, as here, an after-hours no-loitering rule.
Second, the rule at issue here was more likely than those in Adtranz to
chill the exercise of Sec. 7 rights because it was maintained in the con-
text of repeated, unlawful unilateral changes evidencing the Respon-
dent’s indifference to its obligations under the Act. See Cardinal Home
Products, 338 NLRB 1004, 1006 (2003) (similarly distinguishing Ad-
tranz).
TECUMSEH PACKAGING SOLUTIONS, INC. 695
manner of calculating overtime hours, 401(k) plan, and
employee handbook.
(c) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All production and maintenance employees employed
by the Respondent at its 707 S. Evans Street, Tecum-
seh, Michigan location; but excluding all supervisors,
office workers, and guards.
(d) Rescind any discipline issued to unit employees as
a result of the unilateral implementation of rules con-
tained in the employee handbook, and make its employ-
ees whole for any losses suffered as a result of the unilat-
eral implementation of those rules.
(e) Within 14 days from the date of this Order, remove
from its files any reference to any such discipline, and
within 3 days thereafter notify the employees in writing
that this has been done and that the discipline will not be
used against them in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility at 707 S. Evans Street, Tecumseh, Michigan,
copies of the attached notice marked “Appendix.”4 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 7, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees employed by the Respondent at any time
since June 12, 2006.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain employee work rules containing
overly broad prohibitions against loitering, solicitation,
or distribution.
WE WILL NOT refuse to bargain with United Steel, Pa-
per and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union,
AFL–CIO (the Union), as the collective-bargaining rep-
resentative of our employees in an appropriate bargaining
unit by making unilateral changes in their terms and con-
ditions of employment.
WE WILL NOT give effect to the complaint procedure
contained in the employee handbook that we unlawfully
implemented without bargaining with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above, which are guaranteed by Section 7
of the Act.
WE WILL rescind our overly broad work rules prohibit-
ing solicitation and distribution of union material during
working hours and loitering on company property after
working hours.
WE WILL, if the Union asks us to, rescind the unilateral
changes we made to employees’ wages, health insurance,
manner of calculating overtime hours, 401(k) plan, and
employee handbook.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment, no-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD696
tify and, on request, bargain with the Union as the exclu-
sive collective-bargaining representative of employees in
the following bargaining unit:
All production and maintenance employees employed
by the Respondent at its 707 S. Evans Street, Tecum-
seh, Michigan location; but excluding all supervisors,
office workers, and guards.
WE WILL rescind any discipline we issued any of you
as a result of our unlawful unilateral implementation of
rules contained in the employee handbook, and WE WILL
make our employees whole for any losses suffered as a
result of the unilateral implementation of those rules.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to any such
discipline, and WE WILL, within 3 days thereafter, notify
the affected employees in writing that this has been done
and that the discipline will not be used against them in
any way.
TECUMSEH PACKAGING SOLUTIONS, INC.
Michael P. Silverstein, Esq., for the General Counsel.
Robert J. Brown, Esq. (Thompson Hine, LLP), of Dayton, Ohio,
for the Respondent.
John G. Adam, Esq. (Martens, Ice, Klass, Legghio & Israel,
P.C.), of Royal Oak, Michigan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried in Detroit, Michigan, on March 28, 2007. The charge
was filed by United Steel, Paper and Forestry, Rubber, Manu-
facturing, Energy, Allied Industrial, and Service Workers Inter-
national Union, AFL–CIO (the Union) on September 6, 2006,
as amended on November 6, 2006, and on December 13, 2006.
The complaint was issued December 19, 2006. The complaint
alleges that the Respondent, Tecumseh Packaging Solutions,
Inc., violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act). More specifically, it is alleged that the
Respondent unilaterally and without bargaining with the Union
implemented certain conditions of employment for its unit em-
ployees, including a wage increase, a change in the holiday and
overtime calculation, a new 401(k) plan, new work rules con-
tained in the employee handbook, a change in health insurance,
and a changed grievance procedure. The complaint also chal-
lenges new work rules as an unlawful interference with the
employees’ rights guaranteed them under Section 7 of the Act.
The Respondent filed an answer admitting the jurisdictional
allegations in the complaint, but denying the commission of
any unfair labor practices.
By order consolidating cases and notice of hearing, dated
January 28, 2007, the Regional Director ordered that Case 7–
RD–3544, a petition to decertify the Union, be consolidated for
the purpose of a hearing to determine whether the unfair labor
practices alleged in the complaint in Case 7–CA–49861 bear a
causal relationship to the employee disaffection reflected in the
filing of the decertification petition. Following the hearing in
Case 7–CA–49861 and having performed the function of the
hearing officer in Case 7–RD–3544, as requested by the Re-
gional Director, Case 7–RD–3544 was severed at the conclu-
sion of the hearing and remanded to the Regional Director for
appropriate disposition of the case in accordance with Section
102.64 through 104.66 of the Board’s Rules and Regulations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Tecumseh Packing Solutions, Inc., is an
Ohio corporation, engaged in the manufacture, nonretail sale,
and distribution of corrugated paperboard boxes and related
products at its facility at 707 S. Evans Street, Tecumseh,
Michigan, where it annually derived revenues in excess of
$500,000 and purchased goods and materials valued in excess
of $50,000 from points located outside the State of Michigan.
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent, Tecumseh Packaging Solutions, Inc. is the
successor to Tecumseh Corrugated Box (TCB), which manu-
factured and sold paper corrugated boxes in several facilities in
Michigan, Ohio, and Indiana. The Union represented the pro-
duction and maintenance employees at the Tecumseh, Michi-
gan facility, which is the subject of the current proceeding.
Their collective-bargaining agreement covering the 72 employ-
ees was effective from June 15, 2004 to June 15, 2008 (GC
Exh. 2).
By letter of March 24, 2006, TCB advised the Union that
management was considering the sale of its assets to Akers
Packaging Service, Inc. and that the previous owners, Jeff and
Jim Robideau, would continue their management roles in the
new company (GC Exh. 3). On May 8, 2006, Jim and Bill
Akers, the incoming owners met with the employees and for-
mally announced the sale of TCB’s assets to Akers Packaging
Service. The new owners emphasized that the new arrange-
ment would consist of an acquisition of assets without assum-
ing any liabilities, that the new company would not recognize
the Union nor honor the union contract. According to Akers,
he had no problem with the employees wanting to be repre-
sented by a union, but that they would be wasting their money,
because he would not give them anything in a bargaining agree-
ment that he would not give them in regular work rules. Akers
assured the employees that their hourly pay would remain the
same, and that he would attempt to get them comparable medi-
cal insurance, but that other insurance benefits, such as disabil-
ity, life, dental, and vision insurance, as well as a pension plan,
would be the responsibility of the employees. The employees
were told that the new company would start with about 50 em-
TECUMSEH PACKAGING SOLUTIONS, INC. 697
ployees and hopefully operate with 42 employees, and that
applicants would go through an interview, take a drug test, and
a physical. Instead of three shifts, Akers hoped to run the Com-
pany with two shifts.
Upon learning of the events, Connie Malloy, staff represen-
tative for the Union, contacted Jeff Robideau, president of
TCB, to request bargaining over the effects of the pending sale
of the Company to the new owners. As a result, the parties
reached a supplemental agreement, dated May 18, 2007, gov-
erning the terms for the effects of the transaction upon the em-
ployees (GC Exh. 4).
Having completed the assets acquisition on June 12, 2006,
the Respondent began operations without interruption at the
same location using the same equipment with 28 full-time pro-
duction and maintenance employees of the predecessor and
approximately 6 temporary employees (Jt. Exh. 1). Jeff Ro-
bideau, the prior president, continued as the general manager of
the newly named company. Initially, the Respondent operated
with one shift, after a few weeks the Employer expanded the
operation to two shifts. All employees received a set of work
rules (GC Exh. 15). The rules contain the following prohibi-
tions: Engaging in any unauthorized activity during working
hours that is not related to the employee’s regular job responsi-
bilities; [p]osting, distribution [sic], or circulating of unauthor-
ized notices, posters, and placards during working hours and in
working areas. The rules also prohibit “[l]oitering on Company
property after working hours.”
By letter of June 20, 2006, the Union demanded recognition
and requested bargaining on behalf of the production and main-
tenance employees and also demanded that the Respondent
maintain the status quo regarding salary and other benefits until
a new agreement is reached (GC Exh. 5). The Respondent by
letter of June 2, 2006, agreed to recognize the Union, the duty
to bargain, and to maintain the status quo (GC Exh. 6). The
Respondent also offered to meet the Union on July 26, 2006,
for an initial bargaining session.
Prior to any meeting with the Union, the Respondent held a
meeting with the employees on or about July 14, 2006. Man-
agement informed the employees that they had done a good job
and that they would get a 2.5 percent pay increase, effective
July 1, 2006. The collective-bargaining agreement provided for
a 2 percent increase in pay, effective June 15, 2006. The Re-
spondent admitted that it did not inform the Union or bargain
with the Union about the implementation of the pay raise.
The first bargaining session was held on July 26, 2006. Rep-
resenting the Union were Timothy Michels, union president,
and Connie Malloy. The Respondent was represented by Jeff
Robideau, Bill Akers, Rob Waynick, production manager, and
Robert J. Brown, attorney. The Union offered a contract pro-
posal along the lines of the expired agreement (GC Exh. 8).
The Union raised the issue of holiday and vacation pay for time
lost as a result of a holiday. The Respondent took the position
that an employee had to work at least 40 hours before getting
overtime pay. The issue arose when employees were not
scheduled for work on July 4, 2006, and worked on the follow-
ing Saturday without getting overtime. The Union’s contract
proposal contains a proviso specifically dealing with the issue.
Company witnesses disagreed that the issue was discussed at
the union meeting. The Union also discussed a 401(k) plan
under which the Company would match 50 percent of an em-
ployee’s contributions up to 4 percent. The Company did not
submit a counterproposal. Also discussed at the meeting was
health insurance. The Respondent had obtained Humana PPO
health care coverage for the employees and informed the Union
of the monthly medical premiums under that plan (GC Exh. 9,
R. Exh. 6). The Union discussed its Blue Cross Blue Shield
insurance and hoped to obtain a quote from that insurance car-
rier.
The parties did not meet for their next bargaining session un-
til September 22, 2006. In the meantime, the Respondent im-
plemented several terms and conditions of employment which,
according to the General Counsel, should have been the subject
of collective bargaining with the Union. As mentioned during
its meeting with the employees on May 8, 2006, the Respon-
dent instituted a 401(k) plan, effective September 1, 2006, and
posted a memorandum to that effect on July, 26, 2006 (GC
Exh. 17). The Respondent admitted that it did not inform the
Union or bargain with it about the implementation of the new
401(k) plan, even though the Union had proposed a 401(k) plan
as a part of its contract offer (GC Exh. 8).
Similarly, the Respondent effectuated a change in computat-
ing overtime for employees who worked following a holiday.
The Respondent posted a memorandum on July 26, 2007, enti-
tled, “Notice Regarding Tecumseh Packaging Solutions, Inc.
Overtime Pay Policy.” The Respondent announced that there
“has been a change to the way overtime hours are calculated
when considering hours worked” (GC Exh. 16). Even though
the Union had raised the issue at the bargaining table and made
the same proposal in its contract offer, the Respondent failed to
notify the Union and to bargain with the Union, when it posted
the memorandum notifying the employees of the policy
changes (GC Exh. 8, p. 6).
In August or September 2006, the Respondent conducted an
informational meeting with the employees about the Com-
pany’s 401(k) plan. Representatives from UBS Financial and
Hartford Insurance were present and discussed investment op-
tions. The Respondent did not notify the Union of the meeting.
In addition, the Company passed out the new employee hand-
book to the employees (GC Exh. 18). The handbook contained
several provisions, the substance of which the Union had in-
tended to discuss. However, the Respondent did not notify the
Union, nor offer to bargain with it prior to implementing the
provisions of the new handbook.
At the May 8, 2006 meeting with the employees, the Re-
spondent assured the employees that it hoped to provide them
with comparable medical insurance. The Respondent had ob-
tained Humana PPO healthcare coverage for its employees (R.
Exh. 6). During the July 26, 2006 bargaining session, the Un-
ion raised the issue of health insurance and offered to obtain a
quote from the Steelworkers plan by Blue Cross Blue Shield of
Massachusetts. In the meantime, the Respondent negotiated
with Blue Cross Blue Shield (GC Exh. 26). On August 14,
2006, the Respondent had already decided to switch its medical
plan back to Blue Cross Blue Shield of Michigan, effective
October 1, 2006 (GC Exh. 25). Without notifying the Union or
waiting for the quote from the Union’s health plan, the Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD698
dent notified the employees by memorandum of August 30,
2006, entitled “Medical Coverage–Open Enrollment for Blue
Cross Blue Shield” (GC Exh. 19). The Respondent provided
the Union with the benefit details in September 2006 (GC Exh.
21). Admittedly, the Respondent did not consult with the Un-
ion nor offered to bargain with the Union about the switch to
Blue Cross Blue Shield.
On September 22, 2006, the parties held their second bar-
gaining session. The Union requested information about the
Company’s healthcare plan (GC Exh. 12). The Company pro-
vided certain cost information to the Union (GC Exh. 9). A
discussion ensued about the Blue Cross Blue Shield insurance
plans and the Union’s healthcare proposal, dated September 5,
2006 (GC Exh. 14). The Respondent also submitted a contract
proposal which was discussed at great length (GC Exhs. 13,
14).
The final issue involved Timothy Michels, an employee and
union president of Local 1026. He submitted a grievance re-
port, dated September 27, 2006, to Rob Waynick, production
manager, complaining about the Company’s failure to perform
bidding for available jobs (GC Exh. 23). In the middle of Oc-
tober 2006, Waynick returned the grievance to Michels telling
him that the Company would not accept the grievance, and
advised him to use the company complaint procedure contained
in the employee handbook. Michels requested Waynick to
confirm this in writing. Waynick complied, stating: “For any
issues in the workplace the employee’s handbook has a com-
plaint procedure that needs to be followed” (GC Exh. 24). The
Union challenged the procedure, because the handbook was
implemented without bargaining with the Union.
Analysis
The parties are in agreement that the Respondent is a succes-
sor corporation to TCB. This becomes clear, considering the
totality of the circumstances showing a continuity of the busi-
ness operation in the same plant with the same, albeit reduced,
work force, performing the same work on the same equipment
and producing the same products under the same manager,
namely Jeff Robideau as general manager. As a successor em-
ployer, the Respondent has the right to set the initial terms of
employment for the employees. However, the bargaining obli-
gation attaches once a successorship exists, that is when the
holdover employees constitute a majority of the employees. At
that point unilateral changes in existing terms become unlawful.
NLRB v. Burns Security Services, 406 U.S. 272 (1972); Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987).
The record shows that the Respondent told the employees at
the May 8, 2006 meeting that it would not be bound by the
predecessor’s collective-bargaining agreement and announced
the initial terms of employment, which included the employees’
wages, their work shifts, different health insurance, and the
elimination of the Employer’s pension and insurance expenses.
With the commencement of its operation on June 12, 2006, the
Respondent had implemented its work rules, including health-
care coverage for the employees by the Humana health plan.
By letter of June 20, 2006, the Union made its request to bar-
gain. The Respondent acknowledged the Union’s demand by
letter of June 22, 2006, and consented to the Union’s request.
Clearly the Union had made an unequivocal demand to bargain
when the employer’s obligation attached. Most of the Respon-
dent’s employees were employees of the predecessor obligating
the Respondent to bargain with the employees’ bargaining rep-
resentative. Jerry’s Finer Foods, 210 NLRB 52, 54 (1974).
Nevertheless, on July 14, 2006, the Respondent announced to
its employees that they would get an immediate wage increase
of 2.5 percent even though it had earlier promised an increase
of only 2 percent in accordance with the bargaining agreement.
Admittedly, the Respondent did not notify the Union nor afford
it an opportunity to bargain. The Respondent’s unilateral im-
plementation of the 2.5 percent pay raise of July 1, 2006, was
therefore unlawful, even though the change benefited the em-
ployees. NLRB v. Exchange Parts, 375 U.S. 405 (1964).
In August 2006, the Respondent announced to the employees
that it changed insurance companies from Humana to Blue
Cross Blue Shield, effective October 1, 2006. As already dis-
cussed above, it was understood at the first bargaining session
that the Union expected to obtain a quote from its health insur-
ance carrier and to negotiate the issue with the Respondent.
Yet the Respondent implemented the change without notifying
the Union and without affording it the opportunity to bargain.
The Respondent’s explanation that initially it was forced to go
with Humana insurance, and that it had intended all along to be
covered by Blue Cross Blue Shield, certainly did not prevent it
from notifying the Union and to bargain. It cannot be gainsaid
that the Respondent effectuated a significant change in working
conditions by switching from one insurance carrier to another
without honoring its bargaining obligation. I accordingly find
that the Respondent violated Section 8(a)(1) and (5) of the Act.
The Parties agree that the Company’s work rules do not ad-
dress the issue of overtime pay as a result of a holiday. How-
ever, the Union’s contract proposal submitted at the July 26,
2006 bargaining session does contain such a provision, which
states that “time lost from work due to vacation, holidays, and
union business shall be considered as time worked for purposes
of calculating overtime pay.” The issue arose when an em-
ployee was not paid following the July 4 holiday. The issue
was presented to David Degner, administrative manager.
Degner posted a notice in July 2006 regarding the Company’s
holiday policy, stating that there “has been a change to the way
overtime hours are calculated when considering hours worked.”
According to the notice, the Respondent agreed to consider
holiday and vacation hours when figuring overtime so that em-
ployees were paid overtime following the July 4 holiday. The
Respondent strongly argues that the matter was a mere ministe-
rial correction rather than a change in policy, and points to the
testimony of the Company’s negotiators that the issue was not
discussed at the bargaining session. The union witnesses dis-
agreed and clearly recalled discussing the issue. Considering
the demeanor of the witnesses, as well as the wording of the
notice and the terms in the Union’s contract proposal, I have
resolved the credibility issue in favor of the General Counsel. I
find that the Respondent unilaterally changed its policy on
overtime pay without notice to the Union and without affording
it an opportunity to bargain, in violation of Section 8(a)(1) and
(5) of the Act.
TECUMSEH PACKAGING SOLUTIONS, INC. 699
At the May 8, 2006 meeting with the employees, the Re-
spondent announced that it would offer a 401(k) plan. On
about July 26, 2006, the Respondent posted a notice, entitled,
new 401(k) plan, notifying the employees that the plan would
be set up with the projected enrollment date of September 1,
2006, to be administered by UBS Financial Services and Hart-
ford Insurance Company. Although the Respondent admitted
that it did not inform nor bargain with the Union concerning the
implementation of the plan, the Respondent argues that it had
no obligation to do so, reasoning that the matter had been an-
nounced before the bargaining obligation attached and the Re-
spondent had the right to set its own terms and conditions of
employment. However, the General Counsel has shown that
the program was not in effect at the May meeting, and that the
Union had offered to bargain about the issue when it proposed
its version of a 401(k) plan as part of its contract offer at the
July 26, 2006 bargaining session. At that time the Respondent
did not have any 401(k) plan in effect. The record does not
show why the Respondent failed to notify the Union of its in-
tentions during the bargaining session on July 26, 2006.
Clearly, the Respondent ignored its bargaining obligation and
violated the Act by its unilateral conduct.
In late August or early September when the employees were
meeting with representatives of UBS and Hartford, the Respon-
dent distributed to the employees a new handbook containing
work rules. This was in addition to the work rules announced
earlier, when as part of its hiring process, the Respondent is-
sued work rules to the newly hired employees. The new hand-
book, dated August 8, 2006, is 22 pages long and contains de-
tailed provisions governing employee conduct in the work
place, including attendance and absenteeism, substance abuse,
violence in the work place, a problem solving process, jury
duty and bereavement policies, as well as employee services
and benefits. The Respondent argues that the distribution of a
handbook had been announced in the May meetings when the
Company was permitted to establish its own terms. The Gen-
eral Counsel has shown that the handbook contained new terms
and conditions of employment. It is also clear that the Union
had proposed to bargain over work rules at the bargaining ses-
sion. By distributing handbooks containing new work rules and
policies affecting the employees without giving notice to the
Union and without affording it to bargain, the Respondent acted
unilaterally in violation of its promise to maintain the status
quo during the negotiations. The Respondent’s conduct vio-
lated Section 8(a)(1) and (8) of the Act.
Finally, the Respondent improperly rejected a grievance sub-
mitted by Timothy Michels to Rob Waynick, Respondent’s
production manager. The grievance, dated September 12,
2006, challenged the Company’s bidding procedure. A month
later, Waynick responded and directed Michels in a memoran-
dum, dated October 13, 2007, to follow the Company’s com-
plaint procedure contained in the employee handbook. As dis-
cussed above, the complaint procedure was one of the provi-
sions unilaterally implemented by the Respondent, when it
distributed the employee handbook. Clearly, the Respondent
effectuated an improperly implemented work rule contained in
the employee handbook.
The General Counsel also challenges two work rules prom-
ulgated on June 12, 2006, as overly broad and a no-access rule
as invalid. The Respondent concedes that its work rules which
prohibit solicitation and distribution of literature during work-
ing hours are in conflict with established law and argues that no
employees have been disciplined for violating the rules. I ac-
cept the Company’s representation that none of the employees
have been disciplined because of the prohibitions. But main-
taining such provisions has a tendency to intimidate the em-
ployees. In this regard the law is clear, employees have the
right to solicit or distribute union material on their own time.
Prohibiting union activity during working hours, as distin-
guished from working time, is presumptively invalid. Our
Way, Inc., 268 NLRB 394 (1983). The record does not show
that the Respondent has tolerated solicitation during breaktime
or during nonworking time. Accordingly, the rules are facially
invalid and unlawful. But I find the other prohibition against
loitering on company property lawful. I agree with the Re-
spondent that an employer should have the right to prohibit
loitering on company property.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees of the Respondent constitute a
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(c) of the Act:
All production and maintenance employees employed by the
Respondent at its 707 S. Evans Street, Tecumseh, Michigan
location; but excluding all supervisors, office workers, and
guards.
4. By implementing the following terms and conditions of
employment without notice to the Union and without affording
it an opportunity to bargain collectively and in good faith, the
Respondent violated Section 8(a)(1) and (5) of the Act
(a) Unilaterally implementing a wage increase for the unit
employees.
(b) Unilaterally implementing changes to the health insur-
ance of unit employees.
(c) Unilaterally implementing a change in the manner of cal-
culating unit employees’ overtime hours related to holidays.
(d) Unilaterally implementing a new 401(k) plan for its unit
employees.
(e) Unilaterally implementing a new employee handbook for
its unit employees, and attempting to effectuate a complaint
procedure contained in the handbook.
5. By maintaining work rules containing overly broad solici-
tation and distribution provisions, the Respondent interfered
with the employees’ Section 7 rights, in violation of Section
8(a)(1) of the Act.
6. The unfair labor practices found above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD700
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having found that the Respondent
failed to bargain collectively and in good faith by unilaterally
implementing certain working conditions, it must be ordered to
bargain in good faith with the Union and on request by the
Union rescind its unilateral actions. The Respondent must also
be ordered to rescind its overly broad solicitation rules, but a
make-whole remedy is not necessary here, where none of the
employees have been disciplined pursuant to the rules, how-
ever, a make-whole remedy is indicated in connection with the
implementation of the new handbook.
[Recommended Order omitted from publication.]