Uniserv

National Labor Relations Board - Board Decisions

Dec 31, 2007

351 N.L.R.B. 1361 (N.L.R.B. 2007)

UNISERV
351 NLRB No. 86
1361
United Steel Service, Inc., d/b/a Uniserv and Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America,
UAW, Region 2-B. Cases 8–CA–32711, 8–CA–
32801, 8–CA–32939, 8–CA–33269, 8–CA–33915,
and 8–CA–34872
December 31, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
On September 22, 2006, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(5) of the Act by refusing to provide the Union with
requested relevant information.
The judge found, and we agree, that the Respondent violated Sec.
8(a)(5) by unilaterally changing its substance abuse policy. The
changes were of two kinds. First, the Respondent implemented a new
set of incident “triggers” for conducting drug testing. Second, the
Respondent implemented a “zero tolerance” policy, under which drug
use results in “immediate termination without recourse.” Prior to the
latter unilateral change, the Respondent, in its discretion, permitted
employees who tested positive for drugs to retain their jobs on condi-
tion that they participate in treatment or other rehabilitation.
Recently, in Anheuser-Busch, Inc., 351 NLRB 645 (2007) (Member
Liebman and Member Walsh, dissenting), the Board majority con-
cluded that Sec. 10(c)’s prohibition of a make-whole remedy where
discipline is “for cause” precluded a make-whole remedy on the facts
of that case. There, the respondent employer’s unlawful unilateral
change was to its method for detecting drug use. There was no change
in the discipline meted out for drug use; thus, drug use constituted
“cause” for the discipline imposed. Here, by contrast, the Respondent
unilaterally adopted a “zero tolerance” policy in place of its previous
policy of reserving discretion to permit a drug user to retain employ-
ment if he or she agreed to undergo treatment. In these circumstances,
it is not clear that the conduct of employees discharged under the “zero
tolerance” policy would have constituted cause for discharge under the
Respondent’s previous discretionary policy. Accordingly, a make-
whole remedy for these employees is warranted. As to any particular
employee discharged for drug use under the “zero tolerance” policy,
however, the Respondent is entitled to show, at compliance, that it
would have discharged that employee under its preexisting discretion-
ary policy, avoiding as to that employee any backpay and reinstatement
obligation. See Allied Aviation Fuel, 347 NLRB 248, 248 fn. 3 (2006).
to adopt the recommended Order as modified2 and set
forth in full below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, United Steel Service, Inc., d/b/a Uniserv,
Brookfield, Ohio, its officers, agents, successors, and
assigns, shall

Although the Respondent is required to expunge any record of its dis-
charge of an employee under the “zero tolerance” policy, should the
Respondent establish at compliance that it would have discharged the
employee under its preexisting policy, it may maintain a record of the
employee’s failure to comply with such policy.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by unilaterally changing its holiday and vacation policy,
Member Liebman and Member Kirsanow observe that under the Re-
spondent’s former policy employees had the opportunity to request an
additional day off when their vacation day fell on a holiday, and were
sometimes granted that request. Under the new policy, there was no
such opportunity, and thus the employees were foreclosed from ever
receiving an additional day off.
Contrary to his colleagues, Member Schaumber would find that the
Respondent did not violate Sec. 8(a)(5) and (1) when it exercised its
discretion to eliminate additional time off due to manning requirements.
Prior to the certification of the Union, the Respondent’s holiday and
vacation policy provided that employees would be paid for holidays
that occurred while employees were on paid vacations. In addition to
receiving holiday pay, employees could also take an additional unpaid
day off from work, subject, however, to the Respondent’s staffing
needs. Specifically, the policy provided as follows:
If a holiday falls during an employee’s vacation, the employee shall
receive a full week’s pay plus additional holiday pay. Additional time-
off due to holiday’s falling during vacation is subject to manning re-
quirements.
After certification of the Union on April 4, 2001, the Respondent announced
that the holiday and vacation policy would be modified as follows:
If a holiday falls during an employee’s vacation, the employee shall
receive a full pay plus holiday pay. Due to manning requirements, ad-
ditional time-off due to a holiday has been eliminated.
The judge determined, and the majority agrees, that the change to the holi-
day and vacation policy was “clear and sufficiently significant” to warrant
finding a violation. Member Schaumber disagrees. In his view there was no
material change. Both before and after certification of the Union, an em-
ployee’s ability to receive an additional day off was subject to “manning
requirements,”—i.e., at the discretion of the Respondent. The Respondent
simply determined that current manning requirements precluded additional
days off. In his view, this was not a change, but merely an exercise of preex-
isting authority.
2 We will modify the judge’s recommended Order as noted above
and to conform to the violations found and to the Board’s standard
remedial language. We will substitute a new notice to comport with
these modifications.
The judge’s remedy provides that employees adversely affected by
the Respondent’s unlawful unilateral changes be made whole in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950). However,
some of those changes did not result in employees being separated from
employment. As to those, any make-whole remedy shall be in accor-
dance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971). See, e.g., Raven Government Services, 336
NLRB 991, 992 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1362
1. Cease and desist from
(a) Unilaterally changing employees’ terms and condi-
tions of employment, including their health care cover-
age and the attendance, holiday and vacation, substance
abuse, and physical examination policies, without first
giving the Union notice and an opportunity to bargain
about such changes.
(b) Laying off unit employees without giving notice to
the Union and affording it the opportunity to bargain.
(c) Failing and refusing in a timely manner to provide
the Union with requested information relevant to its bar-
gaining obligation.
(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) On request of the Union, rescind the unlawful uni-
lateral changes to unit employees’ health care coverage
and to the attendance, vacation and holiday, substance
abuse, and physical examination policies.
(b) 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 full-time and regular part-time production and
maintenance employees employed by the Employer at
its Brookfield, Ohio facility, excluding all office cleri-
cal employees, shipping clerical employees, and all
professional employees, guards and supervisors as de-
fined in the Act.
(c) To the extent that it has not been previously fur-
nished, furnish the Union the information it requested by
letter of May 22, 2002.
(d) Within 14 days from the date of this Order, offer
those employees who were discharged as a result of the
Respondent’s unlawful unilateral changes (other than the
“zero tolerance” policy) and who were laid off in Sep-
tember, November, and December 2002, and February
2004 full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(e) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s unlawful unilateral changes and layoffs in the
manner set forth in the remedy section of the judge’s
decision as modified by the Board’s decision.
(f) Within 14 days from the date of this Order, remove
from its files any reference to discipline or discharge
resulting from the Respondent’s unlawful unilateral
changes, and within 3 days thereafter notify the affected
employees in writing that this has been done and that the
discipline or discharge will not be used against them in
any way.
(g) As to employees discharged under the unilaterally
implemented “zero tolerance” substance abuse policy, if
any such employees would not have been discharged
under the preexisting discretionary policy, take the fol-
lowing actions: offer those employees full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed; make those employees whole for any loss of
earnings and other benefits suffered as a result of the
Respondent’s unlawful unilateral change in its substance
abuse policy, in the manner set forth in the remedy sec-
tion of the judge’s decision as modified by the Board’s
decision.
(h) 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.
(i) Within 14 days after service by the Region, post at
its facility in Brookfield, Ohio, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 5, 2001.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

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 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.”
UNISERV 1363
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 unilaterally change your terms and con-
ditions of employment, including your health care cover-
age and the attendance, holiday and vacation, substance
abuse, and physical examination policies, without first
giving notice and an opportunity to bargain about such
changes to the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, Region 2-B.
WE WILL NOT lay off unit employees without giving
notice to the Union and affording it the opportunity to
bargain.
WE WILL NOT fail and refuse in a timely manner to
provide the Union with requested information relevant to
its bargaining obligation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, on request of the Union, rescind our unilat-
eral changes to your health care coverage and to the at-
tendance, vacation and holiday, substance abuse, and
physical examination policies.
WE WILL, before implementing any changes in unit
employees’ wages, hours, or other terms and conditions
of employment, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
All full-time and regular part-time production and
maintenance employees employed by us at our Brook-
field, Ohio facility, excluding all office clerical em-
ployees, shipping clerical employees, and all profes-
sional employees, guards and supervisors as defined in
the Act.
WE WILL, to the extent we have not previously done
so, furnish the Union the information it requested by let-
ter of May 22, 2002.
WE WILL, within 14 days from the date of the Board’s
Order, offer those employees who were discharged as a
result of our unlawful unilateral changes (other than the
“zero tolerance” substance abuse policy) and who were
laid off in September, November, and December 2002,
and February 2004, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make our unit employees whole, with inter-
est, for any loss of earnings and other benefits suffered as
a result of our unlawful unilateral changes and layoffs.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to discipline
or discharge resulting from our unlawful unilateral
changes, and WE WILL, within 3 days thereafter, notify
the affected employees in writing that this has been done
and that the discipline or discharge will not be used
against them in any way.
WE WILL offer reinstatement to employees discharged
under the unilaterally implemented “zero tolerance” sub-
stance abuse policy who would not have been discharged
under the preexisting discretionary policy, and WE WILL
make such employees whole for any loss of earnings and
other benefits resulting from their discharge.
UNITED STEEL SERVICE, INC., D/B/A UNISERV
Susan Fernandez, Esq., for the General Counsel.
Peter Grinstein, Esq. (Nadler, Nadler & Burdman, Co., LPA),
of Youngstown, Ohio, for the Employer.
Fritz Neil, Esq. (Joyce Goldstein & Associates), of Cleveland,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried in Cleveland, Ohio, on May 17 and 18, 2006, pursu-
ant to an order consolidating cases, sixth amended consolidated
complaint and notice of hearing issued on March 23, 2006, by
the Regional Director for Region 8 of the National Labor Rela-
tions Board (the Board). The underlying charges were filed by
the International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, Region 2-
B (the Union). The complaint alleges that United Steel Service,
Inc., d/b/a Uniserv (the Respondent or Uniserv) violated Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act (the
Act) by failing and refusing to negotiate with the Union, by
unilaterally changing its attendance policy, and its holiday or
vacation policy, its health care coverage, its substance abuse
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1364
policy, its physical examination policy, by laying off employ-
ees at various times and by refusing to furnish the Union with
relevant information in a timely manner. The Respondent filed
a timely answer, admitting the jurisdictional allegations in the
complaint and denying the commission of any unfair labor
practices. On the entire record, including my observation of the
demeanor 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 Uniserv is an Ohio corporation, engaged in
the processing and slitting of steel at its facility in Brookfield,
Ohio, where it annually purchases and receives products valued
in excess of $50,000 directly from points located outside the
State of Ohio. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In December 2000, the production and maintenance employ-
ees of Uniserv decided that they wanted to be represented by
the Union. An election was held on February 6, 2001, where
the Union was elected as the employees’ collective-bargaining
representative by a wide margin. On April 4, 2001, the Board
certified the Union as the exclusive collective-bargaining repre-
sentative of the unit, described as follows (GC Exh. 2):
All full-time and regular part-time production and mainte-
nance employees employed by the Employer at its Brook-
field, Ohio facility; excluding all office clerical employees,
shipping clerical employees, and receiving clerical employ-
ees, and all professional employees, guards, and supervisors
as defined in the Act.
Uniserv filed objections to the election. On April 4, 2001, the
Board overruled the objections and issued its Decision and
Certification of Representative, certifying the Union as the
unit’s exclusive bargaining representative (GC Exh. 2). By
letter of April, 25, 2001, the Union requested the Respondent to
meet and commence bargaining. The Respondent failed to
respond not only to the Union’s written requests but also to the
Union’s subsequent telephone calls. By letter of July 27, 2001,
Uniserv’s counsel notified the Union that the Board’s certifica-
tion of the Union was “illegal, arbitrary, capricious” and not
supported by evidence (GC Exh. 26). The Union filed an unfair
labor practice charge accusing the Respondent of refusing to
bargain in good faith. In Uniserv, 340 NLRB 199 (2003), the
Board found that the Respondent violated Section 8(a)(1) and
(5) of the Act by refusing to bargain in good faith since April
25, 2001, and thereafter (GC Exh. 3). The Board issued a
cease-and-desist order and a bargaining order requiring Uniserv
to bargain with the UAW. Id. The Board filed an application
for enforcement of the bargaining order in the Sixth Circuit
Court of Appeals. On August 19, 2005, the court granted the
Board’s application for enforcement (GC Exh. 4).
In the meantime, the Respondent made certain changes in its
employment policies. The complaint alleges that Uniserv has
made multiple unilateral changes relating to wages, hours, and
other terms and conditions of employment that are mandatory
subjects for purposes of collective bargaining. These changes
were made in attendance policy and holiday/vacation policy,
health care coverage, the implementation of a substance abuse
policy, the implementation of a physical examination policy, as
well as employee layoffs on September 20, on November 15,
on December 6, 2002, and finally employee layoffs on Febru-
ary 8, 2004. By this conduct, Uniserv is accused of having
interfered, restrained, or coerced employees in the exercise of
their Section 7 rights and in violation of Section 8(a)(1) of the
Act. Furthermore, Uniserv has failed and refused to bargain
collectively and in good faith with the Union as the exclusive
collective-bargaining representative of its employees within the
meaning of Section 8(d) of the Act and in violation of Section
8(a)(1) and (5). The Respondent has engaged in similar viola-
tions since May 22, 2001, by failing to respond to the Union’s
request for information, and by refusing to furnish the Union
with relevant information.
Uniserv denies that it unilaterally changed policies, or that it
had a duty to bargain with the Union with respect to the layoff
of employees, especially the probationary employees. The
Respondent maintains that it had no duty to bargain with the
Union until its certification was resolved by the decision of the
Sixth Circuit Court of Appeals.
III. CHANGES IN ATTENDANCE POLICY
On June 26, 2001, Uniserv posted its “Attendance Policy”
effective July 1, 2001 (GC Exh. 6). Dennis Menold, an em-
ployee, noticed the attendance policy posted on the Respon-
dent’s in-plant bulletin board in the summer of 2001. Robert
Baker, also an employee, testified that he received the policy
along with his paycheck in the summer of 2001. Randy
Kawczynsky, the Company’s president, testified that this pol-
icy, effective July 1, 2001, is the policy now in effect at the
plant and that it is contained in the “United Steel Service, Inc.
Employee Handbook” (GC Exh. 5; R. Exh. 7). Kawczynsky
also admitted that employees have been disciplined in accor-
dance with the policy which not only provides for certain sanc-
tions for unexcused absences but also for late arrivals or early
departures. The policy provides inter alia:
• 3 days off—Employee warning notice issued with
counseling on attendance policy.
• 4 days off—Employee warning notice issued with
counseling on attendance policy, and 3 days off
without pay.
• 5 days off—Employee warning notice issued with
counseling on attendance policy, and 5 days off
without pay and subject to termination.
• 6 days off—Employment terminated.
This policy superseded the attendance policy which the Re-
spondent had in effect prior to the Union’s certification on
April 4, 2001. Although the Respondent argues that there was
no change in policies, the record is clear that Uniserv had insti-
tuted a policy on attendance, effective January 1, 2001, which
UNISERV 1365
was posted as a notice and which provides as follows (GC Exh.
7; R. Exh. 6):
• Due to current absenteeism issues, United Steel
Service, Inc. will address its attendance policy.
• Effective January 1, 2001 the new policy will be de-
termined on the basis of each individual’s atten-
dance and tardiness record.
• Management will monitor each employee’s atten-
dance.
• All disciplinary action will be reviewed and handled
by the plant supervisor.
• Tardiness and leaving early will also be monitored
and addressed as necessary.
• Plant Supervisor decisions are final.
Charles Pitts, production supervisor, testified that this atten-
dance policy did not dictate a finite number of days that would
initiate disciplinary proceedings, and that it was up to manage-
ment’s discretion. Pitts also clarified that this policy, which
lasted for 6 months from January 1, 2001, to the end of June
2001, was the only existing policy governing employee atten-
dance until it was replaced by the policy posted on June 26,
2001.
According to the Respondent, prior to January1, 2001, Unis-
erv had yet another policy in effect since at least 1980 (R. Exh.
30). This policy allowed up to eight unexcused absences before
incurring any discipline. More specifically, Uniserv had main-
tained the following policy:
• 8 days—verbal warning from Plant Manager
• 9 days—employee is given 3 days off without pay
• 10 days—employee is given 5 days off without pay
• 11 days—employee is dismissed as an employee of
United Steel Service, Inc.
Menold explained that Uniserv had this attendance policy in
effect since he began work at the plant about 25 years ago. The
Respondent admitted that this written policy, in existence prior
to January 2001, permitted up to eight unexcused absences,
although the subsequent policy left it all up to management’s
discretion. The Respondent further admitted that this “[l]ast
absenteeism policy [i.e., the one commencing in January 2001]
was changed once again.”
Nevertheless, the Respondent maintains that the allegation
that the Respondent unilaterally changed its attendance policy
“is false and untrue.” The record is clear, however, that on
April 4, 2001, the Board issued its certification of the Union as
the exclusive bargaining representative of the Company’s em-
ployees. On June 26, 2001, Uniserv management admittedly
posted its latest attendance policy to go in effect on July 1,
2001, which Kawczynski, company president, identified as
Uniserv’s current policy. According to this posting, an em-
ployee with three unexcused absences will be issued a warning
and will be subject to counseling on attendance policies. Sub-
sequent absences trigger further disciplinary actions. After 5
days off a warning notice is issued with counseling on atten-
dance policy, as well as a 5-day suspension without pay. The
employee is also subject to termination. A total of six absences
results in the termination of the employee. Menold testified
that management never held a meeting to explain this policy,
and that this was the first time that employees were ever told
that they would be subject to disciplinary action after only three
unexcused absences. Over 40 employees have been disciplined
under the new attendance policy (GC Exh. 8). Pitts testified
that employees have been disciplined for accumulating four and
five unexcused absences, and that one employee has been ter-
minated as a result of the new policy.
The policy also imposes penalties for late arriving and early
departing employees. It provides that if an employee is 1 min-
ute late, the employee will be docked a half an hour of pay.
Employee Robert Baker testified that under previous policies a
worker who was less than 3 minutes late would not have re-
ceived any reduction in pay, and that an employee would have
to be more than 3 minutes late before he or she would be
docked. Pitts testified that under the previous policy a penalty
could be imposed for late arrivals and early departures, but it
was at the discretion of management.
The Respondent’s claim that these policies were all the
same, that the Respondent made no changes in policies, or that
the previous policy was “just reduced to writing and made more
refined” by the June policy is clearly wrong. Indeed, the Re-
spondent’s assertions in its brief are contradictory and inconsis-
tent, making statements such as, the last absenteeism policy
was changed once again, and this last policy was more lenient,
and the last policy was entirely discretionary. I also reject the
argument that the changes were minor.
Robert Baker notified David Fascia, the union representative,
about the new attendance policy. By letter of September 14,
2001, Fascia addressed his written request to Jeffrey Bayman,
company president, that the Company bargain over the atten-
dance policy and other alleged unilateral changes (GC Exh. 27).
Fascia testified that the Company did not give prior notice to
the Union or provide it with an opportunity to bargain over the
new attendance policy. The Company did not respond to the
letter.
IV. CHANGES IN THE HOLIDAY AND VACATION POLICY
Until May 22, 2001, Uniserv maintained a holiday and vaca-
tion policy which permitted an employee who took a vacation
which included a holiday, to receive pay for that holiday in
addition to the vacation days. Subject to manning require-
ments, the employee could also take an additional unpaid day
off work. In short, employees were given additional time if a
holiday falls during the employee’s vacation time. The policy
provided as follows (GC Exh. 9; R. Exh. 8):
If a holiday falls during an employee’s vacation, the employee
shall receive a full week’s pay plus additional holiday pay.
Additional time-off due to holiday’s falling during vacation is
subject to manning requirements.
After the certification of the Union on April 4, 2001, the pol-
icy was changed. By memo, dated May 23, 200, Uniserv noti-
fied the employees as follows (GC Exh. 9; R. Exh. 9):
If a holiday falls during an employee’s vacation, the employee
shall receive a full pay plus holiday pay. Due to manning re-
quirements, additional time-off due to a holiday has been
eliminated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1366
Pitts testified that in the past there were times when employ-
ees were granted an additional day off because a holiday fell
during their vacation but that manning requirements no longer
permitted it, because the “work force got leaner and leaner,”
and Uniserv did not have the people to cover all the extra days
off.
On September 14, 2001, David Fascia wrote President Bay-
man, requesting that Uniserv bargain over the change in holi-
day and vacation policy, as well as other unilateral policy
changes Uniserv had made since the Union’s certification (GC
Exh. 27). The Company did not respond to the letter.
V. CHANGES IN HEALTH CARE COVERAGE
Following the Union’s certification, the Respondent imple-
mented another change in the employees’ working conditions.
On November 1, 2001, Uniserv informed the employees by a
posting that two changes were made in the medical insurance
coverage of bargaining unit employees. First, a new preventa-
tive routine annual diabetic eye exam policy was implemented
and second, the copay for an emergency room visit increased
from $50 to $75 (GC Exh. 10; R. Exhs. 10, 11).
Uniserv denies responsibility for implementing the changes
to the health care policy, taking the position that changes in
health care policy were directed by the insurance carrier, Blue
Cross and Blue Shield. Pitts wasn’t sure if the Company had an
option to change insurance carriers, although he acknowledged
that the Company had done so in the past. These changes af-
fected everyone at the Company including the employees in the
bargaining unit. In any case, the Respondent could have but
failed to notify the Union of the changes.
On December 7, 2001, Fascia wrote to Kawczynski, com-
pany president, requesting to bargain over these unilateral
changes, but the Respondent did not respond to the request.
VI. CHANGES IN THE SUBSTANCE ABUSE AND PHYSICAL
EXAM POLICIES
A. Substance Abuse
By memorandum dated, March 14, 2002, Mark Jones, safety
director, announced to employees’ the Company’s substance
abuse and physical exam policies (GC Exh. 15). Baker testified
that he received a copy of this substance abuse policy in his
paycheck. Fascia received this memo from employees along
with copies of the substance abuse and physical exam policies.
The substance abuse policy jeopardizes continuing employment
with the Company after a violation (GC Exh. 13; R. 13). The
Corrective Action section of this policy reads that “Uniserv has
adopted a zero-tolerance for employees who violate any provi-
sions of the policy and/or who refuse to comply with the policy.
In such cases employees will be subject to immediate termina-
tion without recourse.”
Eleven particular incidents are specified when an employee
must be drug tested.
a. Unacceptable absenteeism, which may include an
unacceptable tardiness record, continuous unavailability.
Or frequency of unacceptable occurrence.
b. A poor work-related accident record when reviewed
with regard to the type of accident, frequency of accident,
or severity of accident.
c. Involvement in work-related accident, which there is
a reason to believe, might be caused by human error.
d. Display of abnormal behavior on the job as ob-
served by a supervisor, manager, or co-workers.
e. Inability to perform usual/routine tasks.
f. Poor overall employment record, including atten-
dance records, disciplinary actions, performance reviews
or accident records.
g. Involvement in the use or unauthorized delivery of
drug without authenticated medical explanation.
h. Information made available to Uniserv from an out-
side source or from other Uniserv personnel, which, upon
review and investigation, is considered by Uniserv to be a
reasonable basis to require a drug or alcohol-screening
test.
i. Involvement in the use, unauthorized possession,
misappropriation, or unauthorized delivery of a drug or al-
cohol while on duty or on Uniserv property.
j. Arrest on criminal charges of possession, use or de-
livery of a drug.
k. All work-related incidents, accidents and injuries
require medical evaluation with drug testing and blood al-
cohol when detected.
Pitts testified that the substance abuse policy that went into
effect in April 2002, merely incorporated the policy that was
unwritten up until that point. He also testified that the Com-
pany always had a substance abuse policy. This policy in-
cluded preemployment testing, return-to-work testing, testing
for illnesses and accidents, suspicion testing, and postaccident
testing. An articulation of the Company’s substance abuse
policy could be found in the employee handbook (GC Exh. 14).
According to that policy, employees were prohibited from en-
gaging in the use of unlawful or unauthorized drugs as well as
reporting for duty with alcohol in their system. Employees were
also prohibited from the unauthorized manufacture, distribu-
tion, sale or possession of drugs or alcohol in the workplace.
Any employee who violated this policy was subject to termina-
tion, but would be permitted, at management’s discretion, to
participate in appropriate treatment, counseling, or rehabilita-
tion as a condition of continued employment. Pitt’s testimony
declaring that the prior policy was equally subject to zero toler-
ance is therefore not credible. He also could not cite to any
instances where the Respondent had exercised such a deterrent.
The record shows that under the former policy, the Respon-
dent made no announcements and did not inform employees
under what circumstance they would be subject to drug testing.
Kawczynski confirmed that the specific incidents which trig-
gered testing under the new policy were not mandated prior to
the implementation of the policy. For example, in December
2000, when Baker cut his finger at work, he was taken to the
hospital, but he was not subjected to a drug test. Similarly
some time in 1990, when he broke a finger and was examined
by a doctor, he was not tested for drugs. Menold was injured at
work in the mid-1980s and likewise did not receive a drug test.
UNISERV 1367
However, under the current substance abuse policy these inju-
ries would mandate a drug test, which means, according to
Kawczysnki, that an employee would be suspended for 5 days,
pending the results of the drug test.
Furthermore, if an employee requested help for a substance
problem, he would receive help under the prior policy. For
example, Baker testified that employee, Tom Stewart, admitted
an abuse problem. Not only was he treated, but he returned to
work. Baker testified that he was not fired, but suspended for 3
days in 1980 for an alcohol violation. Pitts’ testimony that the
current zero tolerance approach does not represent a change
from the previous policy is belied by the record. Since the
policy went into effect, five employees have been terminated as
a result of the Company’s new policy.
By letter of April 2, 2002, to President Kawczynski, Fascia
requested to bargain over the changes in the substance abuse
policy (GC Exh. 29). But the Union was not given notice or an
opportunity to bargain over the changes.
B. Physical Examination
The Respondent’s physical examination policy was similarly
distributed to the employees and went into effect on April 1,
2002, the same day as the substance abuse policy. According to
Kawczynski, the policies are interrelated, so that drug testing
may or may not entail a complete physical examination.
Kawczynski was not able to identify a similar policy in force
prior to this date. The policy specifies which classifications of
employees are affected and under what circumstances they will
be required to undergo a physical examination (GC Exh. 11; R.
Exh. 14).
Circumstances requiring physical examination of present
employees and new hires are listed as follows:
1. All employees:
A. All new hires prior to employment.
B. Following any absence from work, for reasons
other than illness, injury or vacation exceeding 30 calendar
days.
C. As required for mobile equipment and crane opera-
tors, and drivers of company provided vehicles as pre-
scribed by Uniserv equipment examination policy.
D. Following absence from work due to illness or in-
jury requiring the below listed conditions.
1) Requiring confinement in a hospital, excluding
hospitalization for tests only.
2) Absence of more than seven (7) consecutive cal-
endar days due to illness or injury.
3) Any illness or injury occurring while at work re-
sulting in the employee leaving work to receive treat-
ment. In the event that the employee is unable to un-
dergo a urinalysis drug screen and/or breathe alcohol
test due to their medical condition, Uniserv does au-
thorize the use of a blood test to achieve the same re-
sults. (Once medically clear, the employee will be
permitted to return to work pending the results of the
urine analysis test.)
E. All work related incidents or accidents and follow-
ing absences from work of one (1) turn or more due to
compensable injury.
F. As required for employee affected by Uniserv pol-
icy dealing with specific hazardous occupation.
G. Cases and incidents that fall within the guidelines
of the “Drug Free Workplace Policy.”
Uniserv denies that there has been a change in the Com-
pany’s physical examination policy. However, according to the
new policy an employee is required to undergo a physical ex-
amination for an “absence from work, for reason other than
illness, injury or vacation exceeding 30 calendar days.” Men-
old, however, testified that he was not required to take a drug
test after he came back from a 7- or 8-week layoff in 2001. Of
the 12 employees who came back to work after the layoff last-
ing more than 30 days, Menold was only aware of one em-
ployee who was required to submit to a physical examination
under the old system. Baker corroborated Menhold’s recollec-
tion of the scenario. The record is clear that that the newly
adopted policy was not merely a written version of an existing
policy.
The April 2, 2002 letter from the Union to Company Presi-
dent Kawczynski was a request to bargain over both policy
changes (GC Exh. 29). The Union did not receive a response to
the letter.
VII. UNILATERAL EMPLOYEE LAYOFFS
The Respondent laid off bargaining employees on four sepa-
rate occasions allegedly because of business considerations.
The record shows and the Respondent does not deny that the
employees were informed by memorandum that 12 employees
were placed on “layoff status” effective Friday, September 20,
2002 (GC Exh. 18; R. Exh. 15). Three more employees were
notified of their layoff effective Friday, November 15, 2002
(GC Exh. 19; R. Exh 16). One of the employees, Terry Paskel,
was an employee of the receiving department and therefore not
a member of the bargaining unit. Six additional bargaining unit
employees were laid off effective Friday, December 6, 2002
(GC Exh. 20; R. Exh. 17). And effective February 8, 2004, six
more employees were laid off (GC Exh. 32; R. Exh. 18). The
employees who were on layoff, with the exception of the one in
November 2002, were members of the bargaining unit. And in
each instance the Company stated in the respective memoran-
dum that the Company’s action was due to “slow business con-
ditions.” Pitts testified that seniority was not followed in the
past when selecting employees for layoffs.
The Respondent justifies its unilateral actions, arguing that in
each instance the affected employees were given 1 week ad-
vance notice of the impending layoffs in several meetings with
the employees, and that notices were posted on the Thursday
prior to the Monday layoff. The Respondent also argues that
compelling business reasons and economic necessity justified
the Company’s actions, citing a drop in the tonnage of steel.
That Uniserv unilaterally laid off the employees without
providing notice or opportunity to bargain is supported by the
testimony of Fascia and Pitts who admitted that he did not at-
tempt to contact the Union at any time prior to the four layoffs.
Fascia testified that an employee informed him about the three
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1368
layoffs in December 2002, and that he obtained the written
layoff notices from the same employee. Fascia also testified
that Kawczynski did not respond to his written requests to bar-
gain.
VIII. REQUEST FOR INFORMATION
Following the Union’s certification on April 4, 2001, the Un-
ion sent a letter, dated May 22, 2001, to Robert Hutchison, vice
president of operations, requesting relevant information for
collective-bargaining purposes (GC Exh. 25). The information
requested is as follows:
1) A list of current employees, including date of hire,
job classifications, and rate of pay address, telephone
number, and current employment status.
2) Copy of all current company personnel policies,
practices or procedures.
3) Copies of all current classifications, job descrip-
tions, and wage or salary plans.
4) Copy of employment manuals or other documents
showing all company fringe benefit plans, including pen-
sion, profit sharing, severance, vacation, health care, ap-
prentice program, training programs, or any other plans
applicable to bargaining unit employees.
5) Copies of all disciplinary policies, attendance poli-
cies, records or warning of disciplinary notices or any
other personnel actions in effect.
6) Copies of any employee entitlements such as stock
incentives, 401K plans, pension vesting, benefits credits or
optional plans.
7) Copy of company health and safety policies.
Fascia testified that he sent the request for information along
with a request to bargain. Fascia also attempted to contact Hut-
chinson for 3 consecutive days in June, but was unable to speak
with him; nor did Hutchison return Fascia’s calls. The Union
did not receive any information in response to the May 22,
2001 letter. However, Fascia received a letter from the Com-
pany’s attorney stating that the Respondent refused to recog-
nize the Union and Fascia abandoned any further efforts to
obtain information.
More than 4 years later, after the Respondent had exhausted
all appeals and the Sixth Circuit had ordered enforcement, the
Union made a second request for information in the fall of
2005. In October 2005, Fascia received much of the informa-
tion that he requested, although he testified that it was “not in
its entirety.” Uniserv maintains that it furnished the Union with
all the information requested.
Analysis
This Employer has avoided its obligation under the Act for
more than 4 years by refusing to bargain in good faith with the
Union and unilaterally making significant changes in the em-
ployees’ working conditions without notifying the Union or
affording it the opportunity to negotiate about the changes.
This conduct has long been held to violate the Act. NLRB v.
Katz, 369 U.S. 736, 747 (1962). Moreover, it is also well set-
tled that an employer acts at its peril if it defies its bargaining
obligations while pursuing a good-faith challenge to the Un-
ion’s certification. Lauren Mfg. Co., 270 NLRB 1307, 1308
(1984); General Motors Acceptance Corp., 196 NLRB 137,
enfd. 476 F2d 850 (1st Cir. 1973). As stated above, shortly
after its certification the Union repeatedly requested the Re-
spondent to negotiate but the Respondent ignored the Union’s
repeated attempts to bargain about the changes in the employ-
ees’ working conditions, i.e., employee attendance, holidays or
vacations, medical insurance coverage, substance abuse, physi-
cal examination of employees, and layoffs of employees. In
addition, the Company did not, in a timely fashion, comply
with the Union’s information request.
The Union was certified on April 4, 2001. Thereafter, on
July 1, 2001, the Respondent changed its policy dealing with
employee attendance and employee tardiness. As explained
above, the changes were substantial and significantly affected
the unit employees. As a result employees were disciplined.
Any suggestion that the policies were merely a continuation of
past policies is misleading and unrealistic, particularly in the
light of the Respondent’s own witnesses who explained the
obvious differences between the current policy and the old.
The Respondent’s actions in effectuating the new policy,
clearly a mandatory subject of bargaining, without notice to the
Union and without it the opportunity to bargain constitutes a
violation of Section 8(a)(1) and (5) of the Act. Dorsey Trailers,
Inc., 327 NLRB 835 (1999).
By memorandum to the employees, the Respondent an-
nounced a change in its holiday and vacation policy effective
May 23, 2001. The change was made without notice to the
Union and without bargaining with the Union. Issues pertain-
ing to vacations and holidays relate to the employees’ working
conditions and are considered mandatory subjects under the
Act. Waxie Sanitary Supply, 337 NLRB 303 (2001). The
changes were clear and sufficiently significant for the Respon-
dent to notify the employees in a written posting. I reject the
Respondent’s suggestion that “there was no real change in pol-
icy,” and find that the Respondent violated the Act.
On November 1, 2001, the Respondent also changed the unit
employees’ health care coverage by increasing the employees’
copayments and by adding vision coverage. Again the changes
were made after the certification of the Union and without no-
tice to or bargaining with the Union. Contrary to the suggestion
of the Respondent, such changes were not insignificant. Beverly
Manor Nursing Home, 325 NLRB 598 (1998). As alleged in
the complaint, the Respondent violated the Act.
By memorandum of March 14, 2002, the Respondent an-
nounced to the employees updated substance abuse and physi-
cal examination policies effective April 1, 2001. The Respon-
dent implemented the policies without notice to the Union and
without affording it the opportunity to bargain. I reject the
Respondent’s argument that the Company’s action merely codi-
fied an existing policy. As explained above, the prior policy
was vague and not uniformly enforced. The new policies con-
tained a zero tolerance aspect to which the Respondent strictly
adhered, resulting in the termination of all unit employees who
had tested positive. Moreover, the two policies were interre-
lated, requiring, for example, testing for illegal substances if an
employee was injured at work. Employers are obligated to
bargain in good faith with respect to substance abuse policies,
which are considered mandatory subjects of bargaining. John-
UNISERV 1369
son-Bateman Co., 295 NLRB 180 (1989). I accordingly find
the Respondent to be in violation of the Act. Colgate-Palmolive
Co., 323 NLRB 515, 515 (1997).
The Respondent laid off unit employees on four separate oc-
casions, in September, November, and December 2002, as well
as in February 2004, resulting in 26 layoffs. Contrary to the
Respondent’s argument, the record shows that the Respon-
dent’s decisions were made without notice to the Union and
without affording it the opportunity to bargain. The notion that
the postings on the Company’s bulletin board listing the em-
ployees for layoff constituted notice to the Union is not accept-
able, particularly under the present circumstances, where the
Respondent’s counsel had formally rejected the Union’s request
to bargain and informed the Union in writing that it would pur-
sue a certification challenge in the courts. The Respondent also
moved to dismiss the allegations relating to the layoff in Sep-
tember 2002, arguing that it was time barred according to the 6-
month time limit of Section 10(b) of the Act. According to the
General Counsel, the Respondent’s motion is not well taken.
First, the original charge was filed on January 8, 2003, ap-
proximately 4 months after the layoff. The charge on this issue
was then added to the second charge. Second, it is clear that
the charges are closely related to the subsequent layoffs, mak-
ing it unreasonable to examine the one layoff in isolation and to
ignore the same issues arising under similar circumstances and
involving the same parties. Redd-I, Inc., 209 NLRB 1115
(1988). The Respondent further argues that the layoffs were
business related by a drop in orders. To support its contention
the Respondent relies on a chart purporting to show a drop in
tonnage (R. Exh. 21). However, it is well settled that a drop in
business does not rise to the level of an economic exigency or
compelling economic circumstances. RBE Electronics of S.D.,
320 NLRB 80, 81 (1995). Moreover, considering that the deci-
sions to lay off employees are considered mandatory subjects of
bargaining, it is clear that the Respondent’s failure to notify the
Union and offer to bargain over the decisions to lay off and the
effects of these layoffs, constitutes a violation of Section
8(a)(1) and (5) of the Act. Odebrecht Contractors of California,
324 NLRB 396 (1997).
Finally, the record shows that by letter of May 22, 2001, the
Union requested the Respondent to provide certain relevant
information (GC Exh. 25). The Respondent admitted that it
failed “to furnish such information during the period it was
testing certification.” Following the Union’s repeated request
after the Sixth Circuit decision, the Respondent supplied the
material by letter of October 14, 2005 (R. Exh. 1). An em-
ployer’s duty to furnish the union in a timely manner with in-
formation relevant to its role as the collective-bargaining repre-
sentative is well settled. NLRB v. Acme Industrial Co., 385
U.S. 432 (1967). The failure to produce the material in a timely
manner violated the Act, for an unreasonable delay in furnish-
ing requested information is as much a violation as an out-and-
out refusal. Bundy Corp., 292 NLRB 671 (1989); Teamsters
Local 921 (San Francisco Newspapers), 309 NLRB 901
(1992).
CONCLUSIONS OF LAW
1. United Steel Service, Inc., d/b/a/ Uniserv 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. As of April 4, 2001, the Union has been the exclusive-
bargaining representative of the following unit of employees:
All full-time and regular part-time production employees em-
ployed by the Employer at its Brookfield, Ohio facility, ex-
cluding all office clerical employees, shipping clerical em-
ployees, and receiving clerical employees, and all professional
employees, guards and supervisors as defined in the Act.
4. By unilaterally changing or implementing the following
company policies and working conditions, found to be manda-
tory subjects of bargaining, the Respondent violated Section
8(a)(1) and (5) of the Act: (a) attendance policy; (b) holiday
and vacation policies; (c) health care coverage; (d) substance
abuse policy; and (e) physical examination policy.
5. By unilaterally laying off unit employees on about Sep-
tember 20, November 15, and December 6, 2002, and February
8, 2004, a subject which relates to terms and conditions of em-
ployment, without notice to the Union and without bargaining
with the Union, the Respondent violated Section 8(a)(1) and (5)
of the Act.
6. By failing and refusing to furnish the Union in a timely
manner with certain information, the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
7. The aforesaid unfair labor practices 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
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent having failed and
refused to bargain with the Union must be ordered to bargain in
good faith concerning the working conditions of its unit em-
ployees. Having found that the Respondent violated Section
8(a)(1) and (5) of the Act by laying off employees in Septem-
ber, November, and December 2002, as well as in February
2004, without notice to and bargaining with the Union, the
Respondent must be ordered to cease and desist from the
unlawful conduct and to offer the affected employees rein-
statement and to make them whole for any loss of earnings and
other benefits computed on a quarterly basis from the date of
the layoff to date of proper offer of reinstatement, less any in-
terim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Having further found that the Respondent unilaterally
changed and implemented policies and working conditions for
unit employees, the Respondent must be ordered to rescind
those policies and to make the employees adversely affected
whole. Employees who lost their jobs pursuant to the change in
the attendance policy must be reinstated. They and those who
were suspended should be made whole, as provided above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1370
Similarly, employees who lost their jobs as a result of the new
drug and physical examination policies must be reinstated and
made whole, as provided above. Employees who were ad-
versely affected as a result of the changed health care policies
must be made whole, as provided above. Finally, the Respon-
dent must be ordered to provide the Union with the requested
information relevant to its bargaining obligations in a timely
fashion. Nothing in this Order shall be construed as requiring
the Respondent to cancel any benefits previously granted unless
the Union so requests.
[Recommended Order omitted from publication.]