Vanguard Fire & Security Systems

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 1016 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 77
1016
Vanguard Fire & Supply Co., Inc. d/b/a Vanguard
Fire & Security Systems and Road Sprinkler
Fitters Local Union No. 669, United Association
of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and
Canada, AFL–CIO. Cases 7–CA–45823, 7–CA–
46478, and 7–CA–46727
September 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 30, 2004, Administrative Law Judge
Keltner W. Locke issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and the Union each filed an answering
brief and cross-exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs, and has decided to adopt the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
A. Background
Vanguard Fire & Supply Co., Inc. d/b/a Vanguard Fire
& Security Systems, the Respondent, supplies and main-
tains fire and rescue equipment. It operates facilities
throughout Michigan. On July 26, 2001, Road Sprinkler
Fitters Local Union No. 669 (the Union) was certified as
the representative of employees in the following unit:
All full-time and regular part-time employees engaged
in the installation and service of fire protection sprin-
kler pipe and chemical system pipe employed by the
Respondent at, or based at, 2101 Martindale S.W.
Grand Rapids, Michigan, but excluding alarm techni-
cians, employees engaged in the sale, installation and
service of portable chemical extinguishers, office cleri-
cal employees, and guards, professional employees and
supervisors as defined in the Act.
Bargaining then began for an initial contract. On June
5, 2002, the parties entered into an informal settlement
agreement1 that modified the description of the unit, as
follows:
The bargaining unit work shall consist of the installa-
tion and repair of fire sprinkler systems without geo-
graphic limitation, and restaurant systems of the type
performed by Marty Shields, but shall not include the
installation and repair of any other chemical or gas spe-

1 This agreement settled unfair labor practice allegations in Cases 7–
CA–44437, 7–CA–44872, and 7–CA–44750.
cial hazard systems, and shall not include the visual in-
spection and related testing of any systems. Marty
Shields shall remain a member of the bargaining unit.
After receiving a petition signed by eight employees
stating, “[W]e don’t want 669 representation,” the Re-
spondent withdrew recognition from the Union on Octo-
ber 15, 2003.
B. Philip Moss’ Starting Wage and Vacation
Accrual Rates
The Respondent admits that it unilaterally imple-
mented new starting wage and vacation accrual rates for
employee Philip Moss on July 8, 2002,2 but asserts a
defense based on Section 10(b) of the Act. The initial
charge in the case, which contained an allegation regard-
ing unilateral starting wage rates, was filed on January
17, 2003. Because this was more than 6 months after
Moss’ July 8 starting date, the judge found that this alle-
gation was barred by Section 10(b). We disagree.
The General Counsel argues that the Union did not
know of Moss’ starting wage rate until mid-September
2002. Union organizer Jim Tucker testified that he be-
came aware of Moss’ wage rate when the Respondent
attached a document listing starting wage rates to a
packet of information given to the Union in mid-
September 2002 pursuant to an information request.
Tucker further testified that the Union did not know
about Moss’ vacation accrual rate until October or No-
vember 2002, when a supervisor told Tucker about it.
The Board has held that the 10(b) limitations period
does not begin to run until the aggrieved party has re-
ceived actual or constructive notice of the conduct that
constitutes the alleged unfair labor practice. Concourse
Nursing Home, 328 NLRB 692, 694 (1999). When a
union is on notice of facts that would reasonably engen-
der suspicion of an unfair labor practice, the 10(b) period
will begin to run. See Transit Union Local 1433 (Phoe-
nix Transit System), 335 NLRB 1263 fn. 2 (2001). The
party asserting the 10(b) defense has the burden of show-
ing actual or constructive notice. Courier-Journal, 342
NLRB 1093, 1103 (2004). Here, we find that the Re-
spondent has not met this burden.
The credited testimony establishes that the Union did
not become aware of Moss’ starting wage rate until mid-
September 2002, and did not become aware of his vaca-
tion accrual rate until October or November of that year.
Because those rates were unilaterally established by the
Respondent without consultation with the Union, there is
little or no reason to find that the Union should have
known about them prior to the information request. In

2 The parties stipulated that Philip Moss was in the unit.
VANGUARD FIRE & SECURITY SYSTEMS 1017
similar circumstances the Board has held that, where
employees given wage increases have not informed a
union of their raises, and there is no other sign of open or
obvious action that would have put the union on notice,
constructive knowledge of the increases will not be im-
puted. Broadway Volkswagen, 342 NLRB 1244, 1248
(2004).
We conclude that there was no constructive knowledge
here. Particularly because the result of the change was a
higher starting wage rate and a better vacation accrual
rate for employee Moss, it is not surprising that Moss
would not report this favorable change to the Union.
Also, it is not unreasonable that the Union would not
uncover this “change” between July 8 and 17 (the start of
the 10(b) period).
Because the charge was filed on January 17, 2003,
which is less than 6 months after the Union learned of
the Respondent’s actions, we find the charge timely. As
the Respondent has admitted the facts underlying this
allegation, we reverse the judge, and find that the Re-
spondent violated Section 8(a)(5) when it unilaterally
implemented starting wage and vacation accrual rates for
Philip Moss.
C. Change in Implementation of Cellular
Phone Policy
Prior to December 2001, the Respondent began fur-
nishing cellular phones to certain employees, paying
Nextel for a specified number of monthly minutes for
each phone. The Respondent’s written policy was to bill
employees for any charges over their allotted monthly
minutes. The record shows, however, and the judge
found, that until December 5, 2002, employees were not
billed for any such overage charges made to their phones.
After this date, the Respondent began billing employees
for overages.
The judge concluded that the change in the Respon-
dent’s implementation of the cell phone policy violated
Section 8(a)(5) of the Act. We agree. Although the Re-
spondent’s written policy on cell phone use did not
change, the way in which the policy was implemented
did change. The Board has held that a change from lax
enforcement of a policy to more stringent enforcement is
a matter that must be bargained over. See Hyatt Regency
Memphis, 296 NLRB 259, 263–264 (1989), enfd. sub
nom. in relevant part Hyatt Corp. v. NLRB, 939 F.2d 361
(6th Cir. 1991). We therefore find that the Respondent’s
change in implementation of the cell phone policy with-
out bargaining violated Section 8(a)(5).3

3 Member Schaumber concurs that the evidence is sufficient to sus-
tain the judge’s finding of a unilateral change in the Respondent’s
enforcement of its cell phone policy. However, he notes that had the
D. Request for a Bargaining Agenda
The Respondent sent a letter to the Union on July 16,
2003, in response to the Union’s offer to put some pro-
posals it had previously rejected back on the table. This
letter insisted that the Union provide “a detailed agenda”
of topics the Union wished to discuss and proposals the
Union wished to introduce before the next meeting.4
The Union responded by a letter that included a list of
issues the Union wished to discuss at the meeting. The
Respondent’s attorney replied on August 12, stating that
the Union had not provided the detailed agenda “com-
prised of the four points specified in my letter” of July
16, and, therefore, that the Respondent would refuse to
meet with the Union. The Union again attempted to sat-
isfy the Respondent’s demands by letter of August 28,
listing specific contract proposals the Union wished to
discuss, along with other issues it wished to clarify.
Nevertheless, the Respondent continued to refuse to meet
with the Union. The Respondent has admitted that it
conditioned meeting upon advance written submission by
the Union of a detailed agenda and proposals.
The judge found that a bargaining agenda was a non-
mandatory subject of bargaining and that the Respondent
had no right to insist upon an agenda as a precondition to
bargaining. Accordingly, he found that this conduct vio-
lated Section 8(a)(5) of the Act. We agree. Further,
even assuming, arguendo, that the Respondent had the
right to request a bargaining agenda from the Union prior
to meeting, we find that the Union satisfied that request.5
In fact, the Union bent over backwards to accommodate
the Respondent’s desires, sending two detailed letters to
the Respondent discussing its bargaining proposal and

evidence established that prior lax administration of the policy was due
to administrative error or incompetence, he would find that the Re-
spondent was privileged, without bargaining, to take steps to ensure the
extant policy was properly followed.
4 In its letter the Respondent demanded that the Union’s agenda ad-
dress the following four issues:
1. Each and every detail of our proposals which you believe needs to
be “worked out.” 2. You claim that there is some “remainder of the
contract which we need to work out.” On page 2 of your letter you
itemize eight new proposals you intend to make. Again, I believe rais-
ing new proposals at this late stage is evidence of bad faith bargaining.
However, if you really intend to raise new issues, please include the
specific proposals with your agenda. 3. You state that there are “some
other issues which [you] have not had a chance to discuss.” The
agenda should include a detailed listing of every other issue that you
would like to discuss. 4. You also indicate that you think you need
more information. Please provide us a written request for the items
and information you think you need.
5 Member Schaumber agrees, on the specific facts of this case, that
the Respondent’s conduct constituted bad-faith bargaining. However,
in his view, there may be circumstances where a party’s insistence on
an agenda as a precondition to further bargaining might be appropriate
and lawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1018
including an agenda of issues the Union wished to dis-
cuss. The Respondent rejected both of those attempts as
unsatisfactory, and continued to refuse to bargain with
the Union. This conduct constitutes bad-faith bargain-
ing, and, thus, violates Section 8(a)(5).
E. Withdrawal of Recognition
The Respondent admits that it withdrew recognition
from the Union on October 15, 2003.6 The Respondent
based its withdrawal on a petition signed by eight of its
employees. Four of the signers, however, were Austin
Aamodt, Nathan Sloan, Sean Wiggers, and Evan
Timmerman, who, the General Counsel argued, and the
judge correctly found, were not in the bargaining unit at
the time recognition was withdrawn.7 (Indeed, Sloan,
Wiggers, and Timmerman were never in the bargaining
unit.)8 This leaves a unit of 11 employees, only 4 of

6 We correct the judge’s inadvertent error, on p. 12, L. 27 of his de-
cision, that the withdrawal of recognition occurred on October 15,
2004, noting that the record shows, and the Respondent admits that the
withdrawal of recognition occurred on October 15, 2003.
7 No party has argued that Aamodt was eligible by virtue of having a
reasonable expectation of recall to the unit.
Chairman Battista notes that under current Board law as set out in
Harold J. Becker Co., 343 NLRB 51 (2004), the burden of proving that
employees explicitly excluded from a bargaining unit are nevertheless
included in that unit due to their dual-function status rests with the
party asserting dual-function status. Chairman Battista dissented from
Becker, and adheres to the views expressed in his dissent. However,
for institutional reasons, he agrees with the decision to exclude Aamodt
from the unit.
Member Schaumber does not pass on the judge’s finding that
Aamodt should be excluded from the unit. He agrees that there is suffi-
cient evidence to sustain the judge’s findings with respect to employees
Wiggers and Timmerman (regardless of which party bears the burden
of proof), rendering moot the issue of Aamodt’s status. Even if
Aamodt were included in the unit, the petition upon which the Respon-
dent’s withdrawal of recognition was based was not signed by a major-
ity of the bargaining unit employees. Member Schaumber notes that
the burden of proof rule of Harold J. Becker Co., supra, applies only
where the employee is in a classification specifically excluded by a
stipulated unit agreement. There was no dispute in Becker that the
challenged employees occupied such excluded classifications. Here, by
contrast, the classification is disputed, and it is Aamodt’s recall letter—
not the Stipulated Election Agreement—that is the asserted basis for
triggering the Becker rule. In fact, the informal settlement agreement
that amended the certified unit describes the unit in terms of bargaining
work (“the installation and service of fire protection sprinkler pipe”).
Since there is no dispute that Aamodt performed such bargaining work
after recall, the burden should have been on the General Counsel to
show that Aamodt was not eligible because he did not perform enough
bargaining unit work to qualify for inclusion in the unit.
8 Because Sloan, Wiggers, and Timmerman were never in the unit,
we affirm the judge’s finding that the unilateral wage increases given to
those employees did not violate Sec. 8(a)(5).
Member Schaumber also does not pass on the judge’s finding that
Sloan should be excluded from the unit. Like Aamodt, Sloan’s inclu-
sion in the unit would not alter the fact that the petition was not signed
by a majority of the bargaining unit employees. Member Schaumber
concurs in finding no violation with respect to Sloan’s unilateral in-
whom signed the petition. As the petition did not dem-
onstrate a loss of majority support for the Union, the Re-
spondent’s withdrawal of recognition based on this peti-
tion violated Section 8(a)(5).9
ORDER
The National Labor Relations Board orders that the
Respondent, Vanguard Fire & Supply Co., Inc. d/b/a
Vanguard Fire & Security Systems, Grand Rapids,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Withdrawing recognition from the Union on the
basis of a petition signed by less than a majority of the
bargaining unit employees.
(b) Making material, substantial, and significant
changes in the implementation of policies without first
notifying the Union and affording it an opportunity to
bargain concerning such changes and their effects.
(c) Unilaterally conferring wage and vacation accrual
rates on certain bargaining unit employees without first
notifying the Union and giving it the opportunity to bar-
gain.
(d) Failing and refusing to furnish the Union with re-
quested information relevant to the Union’s duties as
exclusive bargaining representative and necessary for
that purpose.
(e) Setting preconditions to meeting and negotiating
with the Union as the exclusive representative of the bar-
gaining unit employees.
(f) Canceling meetings with the Union because the Un-
ion did not comply with the preconditions unilaterally
imposed by the Respondent.

crease because that allegation of the complaint would be properly dis-
missed on procedural grounds.
9 In light of this disposition, we need not consider whether the peti-
tion was tainted by the Respondent’s other unfair labor practices.
We note that the judge analyzed the need for an affirmative bargain-
ing order under the criteria set forth by the U.S. Court of Appeals for
the District of Columbia Circuit. We adopt the judge’s analysis of this
issue, and agree that the requirements of the court for an affirmative
bargaining order have been met in this case. Member Liebman respect-
fully disagrees, however, with the court’s requirements, and adheres to
extant Board precedent, pursuant to which an affirmative bargaining
order is “the traditional, appropriate remedy for an 8(a)(5) refusal to
bargain with the lawful collective-bargaining representative of an ap-
propriate unit of employees.” Caterair International, 322 NLRB 64, 68
(1996).
Chairman Battista and Member Schaumber did not participate in
Caterair and agree with the D.C. Circuit that a case-by-case analysis is
required to determine whether an affirmative bargaining order is appro-
priate. See, e.g., Flying Foods, 345 NLRB No. 10, slip op. at 10 fn. 23
(2005). They recognize, however, that the view expressed in Caterair
represents extant Board law.
VANGUARD FIRE & SECURITY SYSTEMS 1019
(g) In any like or related manner interfering with, re-
straining, or coercing its 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) Recognize the Union as the exclusive bargaining
representative of the employees in the bargaining unit
certified by the Board on July 26, 2001, as modified by
the June 5, 2002 agreement settling unfair labor practice
allegations in Cases 7–CA–44437, 7–CA–44872, and 7–
CA–44750.
(b)Within 14 days from the date of this Order, rescind
the unlawful change in implementation of its cell phone
reimbursement policy.
(c) Make whole, with interest, all employees adversely
affected by the unlawful change in implementation of its
cell phone reimbursement policy.
(d) If requested to do so by the Union, rescind the
wage and vacation accrual rates the Respondent unilater-
ally conferred on certain bargaining unit employees
without first notifying the Union and giving it the oppor-
tunity to bargain.
(e) Within 14 days from the date of this Order, furnish
the Union with requested information concerning what
jobs have been awarded to the Respondent and the ap-
proximate starting dates of those jobs.
(f) Meet and bargain with the Union, in accordance
with its obligations defined in Section 8(d) of the Act,
without setting or insisting upon any preconditions to
such meetings.
(g) Within 14 days after service by the Region, post at
its facilities in Grand Rapids, Michigan, copies of the
attached notice marked “Appendix.10 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s author-
ized 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 notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since July 8, 2002.

10 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
(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 Regional
Director attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the consolidated com-
plaint is dismissed insofar as it alleges violations not
found.
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 withdraw recognition from the Union on
the basis of a petition signed by less than a majority of
the bargaining unit employees.
WE WILL NOT make material, substantial, and signifi-
cant changes in the implementation of policies without
first notifying the union and affording it an opportunity
to bargain concerning such changes and their effects.
WE WILL NOT unilaterally confer wage and vacation
accrual rates on certain bargaining unit employees with-
out first notifying the Union and giving it the opportunity
to bargain.
WE WILL NOT fail or refuse to furnish the Union with
requested information relevant to the Union’s duties as
exclusive bargaining representative and necessary for
that purpose.
WE WILL NOT set preconditions to meeting and negoti-
ating with the Union as the exclusive representative of
the bargaining unit employees.
WE WILL NOT cancel meetings with the Union because
the Union did not comply with the preconditions unilat-
erally imposed by us.
WE WILL NOT, in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed you by Section 7 of the Act..
WE WILL recognize the Union as the exclusive bargain-
ing representative of our employees in the bargaining
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1020
unit certified by the Board on July 26, 2001, as modified
by the June 5, 2002 agreement settling unfair labor prac-
tice allegations in Cases 7–CA–44437, 7–CA–44872,
and 7–CA–44750.
WE WILL, within 14 days from the date of this Order,
rescind the unlawful change in implementation of our
cell phone reimbursement policy.
WE WILL, make whole, with interest, all employees
adversely affected by the unlawful changes in implemen-
tation of our cell phone reimbursement policy.
WE WILL, if requested to do so by the Union, rescind
the wage and vacation accrual rates we unilaterally con-
ferred on certain bargaining unit employees without first
notifying the Union and giving it the opportunity to bar-
gain.
WE WILL, within 14 days from the date of this Order,
furnish the Union with requested information concerning
what jobs have been awarded to us and the approximate
starting dates of those jobs.
WE WILL meet and bargain with the Union, in accor-
dance with our obligations defined in Section 8(d) of the
Act, without setting or insisting on any preconditions to
such meetings.
VANGUARD FIRE & SUPPLY CO., INC. D/B/A
VANGUARD FIRE & SECURITY SYSTEMS
Erikson C. N. Karmol, Esq., for the General Counsel.
Timothy J. Ryan, Esq. and Michael E. Stroster, Esq. (Miller,
Johnson, Snell & Cummiskey, P.L.C.), of Grand Rapids,
Michigan for the Respondent.
Jason J. Valtos, Esq. (Osborne Law Offices), of Washington,
D.C., for the Charging Party.
DECISION
STATEMENT OF CASES
KELTNER W. LOCKE, Administrative Law Judge. In this
case, the Government alleges that the Respondent, Vanguard
Fire & Supply Co., Inc., doing business as Vanguard Fire &
Security Systems, failed and refused to bargain in good faith
with the Union, Road Sprinkler Fitters Local Union No. 669,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL–CIO, by engaging in several kinds of conduct
which violated Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act). For the reasons discussed below, I find
that Respondent made certain unlawful unilateral changes in
terms and conditions of employment of bargaining unit mem-
bers, failed and refused to furnish the Union with requested
information, refused to meet and negotiate unless the Union
agreed to terms which were nonmandatory subjects of bargain-
ing, and then impermissibly withdrew recognition from the
Union. All of these actions constitute unfair labor practices
which Respondent must remedy.
A. Procedural History
This case began on January 17, 2003, when Road Sprinkler
Fitters Local Union No. 669, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada (the Union or the Charging
Party) filed the initial charge against Respondent in Case 7–
CA–45823. The Union amended this charge on February 10
and March 26, 2003.
On August 6, 2003, the Union filed its initial charge against
Respondent in Case 7–CA–46478. The Union amended this
charge on September 16, 2003.
On October 16, 2003, the Union filed a charge against Re-
spondent in Case 7–CA–46727.
The General Counsel, by the Regional Director for Region 7
of the National Labor Relations Board (the Board), issued a
complaint and notice of hearing in Case 7–CA–45823 on
March 27, 2003. On November 26, 2003, the Regional Direc-
tor issued an Order consolidating cases, amended consolidated
complaint and notice of hearing in Cases 7–CA–45823 and 7–
CA–46478.
On December 24, 2003, the Regional Director issued a sec-
ond Order consolidating cases, second amended consolidated
complaint and notice of hearing in Cases 7–CA–45823, 7–CA–
46478, and 7–CA–46727. For brevity, I will refer to this plead-
ing simply as the “complaint.”
Respondent filed timely answers.
On March 16, 2004, hearing opened before me in Grand
Rapids, Michigan. The parties presented evidence on March 16
through 19, 2004, and the hearing closed on the latter date. The
parties submitted posthearing briefs, which I have considered.
B. Oral Amendment to Complaint
During the hearing, the General Counsel orally amended
paragraph 12 of the complaint. Under this amendment, the
existing paragraph 12 became subparagraph 12(a). The
amendment raised previously unalleged matters in newly cre-
ated subparagraphs 12(b) and (c). A question has now arisen
concerning the substance of the new subparagraph 12(b).
According to the official transcript, the new subparagraph
12(b) alleged that “About September 6, 2002, Respondent
awarded a discretionary wage increase to its employee, Nate
Sloan.” The General Counsel’s posthearing brief asserts that
the official transcript got the date wrong by 1 year. In a foot-
note, the General Counsel’s brief moves to correct the tran-
script to show the date as “September 6, 2003.” For the follow-
ing reasons, I deny the General Counsel’s motion.
As a procedural matter, a footnote in a posthearing brief is
not the ideal place for a motion. Different portions of the
Board’s Rules and Regulations apply to motions and posthear-
ing briefs. For example, a motion is part of the official record
but a brief to the administrative law judge is not. (Compare,
Section 102.26 of the Board’s Rules to Section 102.45(b).)
However, my decision to deny the General Counsel’s motion
rests on factual rather than procedural grounds. My notes are
consistent with the transcript in recording that counsel for the
General Counsel gave the date as September 6, 2002, not 2003,
when he announced the wording of the new complaint subpara-
graph 12(b).
VANGUARD FIRE & SECURITY SYSTEMS 1021
Respondent objected to the amendment, stating that the alle-
gation was barred by Section 10(b) of the Act, which includes a
6-month statute of limitations. The Union filed the initial
charge in Case 7–CA–45823 on January 17, 2003. It would
make no sense for Respondent to raise a 10(b) defense concern-
ing events which took place after the filing of the charge.
Because my notes and Respondent’s objection are consistent
with the September 26, 2002 date recorded in the transcript, I
conclude that the transcript already is correct on this point.
Therefore, I deny the General Counsel’s motion to correct it.
C. Undisputed Allegations
Based upon admissions in Respondent’s answer, I find that
the Government has proven the allegations raised in the follow-
ing paragraphs of the second amended consolidated complaint:
1(a)–(f), 2(a)–(b), 3, 4, 5, 6(a)–(b), 7, 8(a)–(b), 11, 12, 13, 15,
17, 20, and 21(a).
More specifically, I find that the Charging Party filed and
served the charges as alleged. Further, I find that at all material
times, Respondent has been a contractor engaged in the con-
struction, installation, and maintenance of fire sprinkler and
other security systems; that it maintains an office and place of
business in Grand Rapids, Michigan, and facilities in certain
other Michigan locations; that during the calendar year ending
December 31, 2002, Respondent purchased and received at its
Grand Rapids facility and at jobsites in the State of Michigan
materials and supplies valued in excess of $50,000 directly
from suppliers located outside the State of Michigan; and that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Additionally, I find that at all material times, the following
individuals have been Respondent’s supervisors and agents
within the meaning of Section 2(11) and (13) of the Act, re-
spectively: President Darrell Thomas, General Manager Rich-
ard Knipp, Foreman Brett Thomas, and Service Manager Ted
Hembroff. Moreover, I find that at all material times, account-
ant Tim Callahan and Office Manager Vandy Young have been
Respondent’s agents within the meaning of Section 2(13) of the
Act.
Further, I find that at all material times, the Charging Party
has been a labor organization within the meaning of Section
2(5) of the Act. Respondent’s answer admits, and I find, that
on July 26, 2001, the Charging Party was certified as the exclu-
sive collective-bargaining representative of the following unit
(the unit):
All full-time and regular part-time employees engaged in the
installation and service of fire protection sprinkler pipe and
chemical system pipe employed by the Respondent at, or
based at, 2101 Martindale S. W. Grand Rapids, Michigan, but
excluding alarm technicians, employees engaged in the sale,
installation and service of portable chemical extinguishers, of-
fice clerical employees, and guards, professional employees
and supervisors as defined in the Act.
Respondent also admits, and I find, that the unit constitutes a
unit appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
Respondent denies that the Charging Party remains the ex-
clusive representative of the unit. However, its answer admits
that the Charging Party had been the exclusive representative
until Respondent withdrew recognition in October 2003. Based
on this admission, I find that at all times from July 26, 2001,
until the withdrawal of recognition, the Charging Party was the
9(a) bargaining representative of the unit. Whether the Charg-
ing Party continues to enjoy this status will be addressed below.
The complaint alleges, Respondent admits and I find that on
June 5, 2002, Respondent and the Charging Party entered into
an informal settlement agreement in Cases 7–CA–44437, 7–
CA–44872, and 7–CA–44750, the terms of which modified the
description of the unit as follows:
The bargaining unit work shall consist of the installation and
repair of fire sprinkler systems without geographic limitation,
and restaurant systems of the type performed by Marty
Shields, but shall not include the installation and repair of any
other chemical or gas special hazard systems, and shall not in-
clude the visual inspection and related testing of any systems.
Marty Shields shall remain a member of the bargaining unit.
The complaint also alleges, Respondent admits, and I find
that Respondent implemented discretionary starting wage rates
for the employees named below on or about the dates set forth
opposite their names, and since those dates has given the em-
ployees named below discretionary wage increases:
(a) Phillip Moss—July 8, 2002 (b) Jason Engle—July 22,
2002
Based on Respondent’s admissions, I find that sometime in
November 2002, Respondent awarded a discretionary wage
increase to employee Mike King; that about September 6, 2002,
Respondent awarded a discretionary wage increase to employee
Nathan Sloan; and that sometime in September or October
2003, Respondent awarded a discretionary wage increase to its
employees Sean Wiggers and Evan Timmerman.
Respondent also has admitted that it implemented discretion-
ary vacation accrual rates for employees Phillip Moss and Jason
Engle on July 8 and 22, 2002, respectively. I so find.
As discussed above, the General Counsel orally amended
complaint paragraph 12 at hearing so that it now has three sub-
paragraphs. Respondent’s answer admitted the allegations in
subparagraph 12(a) and Respondent orally admitted the allega-
tions in subparagraphs 12(b) and (c). Based on these admis-
sions, I find that at some time in November 2002, Respondent
awarded a discretionary wage increase to its employee Mike
King; that about September 6, 2002, Respondent awarded a
discretionary wage increase to its employee Nathan Sloan; and
that at some time in September or October 2003 Respondent
awarded discretionary wage increases to employees Sean Wig-
gers and Evan Timmerman.
Respondent orally amended its answer to admit not only the
facts alleged in the expanded complaint paragraph 12, but also
the legal conclusion to be drawn from those facts. This legal
conclusion is found in complaint paragraph 22. At hearing,
Respondent amended its answer to this paragraph by stating as
follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1022
With respect to allegations in paragraph 22 of the amended
complaint, Respondent amends its answer to state as follows:
Respondent admits that by its conduct described in paragraph
12 of the amended complaint Respondent has been failing and
refusing to bargain collectively with the exclusive collective–
bargaining representative of the unit in violation of Section
8(a)(1) and (5) of the Act. In all other respects, the allega-
tions of paragraph 22 are denied.
By amending its answer in this manner, Respondent appears
to be admitting that it committed unfair labor practices by the
acts alleged in complaint paragraph 12. (However, Respondent
also has raised a 10(b) defense with respect to complaint sub-
paragraphs 12(b) and (c).) Respondent may have made these
particular admissions to support its argument that the employ-
ees named in the amended complaint paragraph 12—Mike
King, Nathan Sloan, Sean Wiggers, and Evan Timmerman—
were members of the bargaining unit, which the General Coun-
sel disputes. These matters will be discussed further below.
Respondent has admitted, and I find, that it implemented dis-
cretionary vacation accrual rates for employee Phillip Moss on
July 8, 2002, and for employee Jason Engle on July 22, 2002.
Respondent also has admitted that the changes it made in
wage and vacation accrual rates relate to wages, hours, and
other terms and conditions of employment of the unit and are
mandatory subjects for the purpose of collective bargaining. I
so find.
Respondent has admitted, and I find, that since about June
19, 2003, the Charging Party, by letter, has requested that Re-
spondent furnish the Charging Party with the following infor-
mation:
1. A list of present jobs and jobs which have been
awarded, with their approximate starting dates.
2. A list of all employees who have been hired, show-
ing their race, national origin, sex, sexual prefer-
ence, age, disability and religion.
3. A list of all employees who were promoted, trans-
ferred, disciplined or demoted showing their race,
national origin, sex, sexual preference, age, dis-
ability or religion.
4. A list of all employees who were either denied
promotions or transfers showing their race, na-
tional origin, sex, sexual preference, age, disability
or religion.
5. Copies of all charges or complaints received from
any State or Federal administrative agency or any
court suit concerning discrimination or harassment
based upon race, national origin, sex, sexual pref-
erence, age, disability or religion [including, with
respect to any such complaint, charge or lawsuit]
not only a copy of the complaint, charge or law-
suit, but a copy of any document showing the reso-
lution or conclusion of that litigation, complaint or
charge.
6. A copy of any affirmative action plan which is or
has been in existence during the last five years.
7. A copy of any contracts which have any equal em-
ployment clauses or guarantees, as well as any
contracts which have any affirmative action
clauses or guarantees.
8. Copies of any internal investigative reports with
respect to any complaints, charges or allegations
concerning discrimination or harassment based on
race, national origin, sex, sexual preference, age,
disability or religion.
9. Copies of all sexual harassment, antidiscrimination
or discrimination policies.
Respondent also has admitted that the information described
above is necessary for, and relevant to, the Charging Party’s
performance of its duties as the exclusive collective-bargaining
representative of the unit. With one exception discussed below,
I so find.
Respondent has admitted, and I find, that on or about July 16
and August 12, 2003, Respondent, by letters addressed to the
Charging Party from its legal counsel, has conditioned meeting
upon advance written submission by the Charging Party of a
detailed agenda and proposals.
Additionally, Respondent has admitted that on or about Oc-
tober 15, 2003, Respondent, by a letter addressed to the Charg-
ing Party from its legal counsel, withdrew recognition from the
Charging Party as the exclusive collective-bargaining represen-
tative of the unit. I so find.
Contested Allegations
I. EMPLOYEES IN THE BARGAINING UNIT
Respondent has admitted that it withdrew recognition from
the Union on about October 15, 2003, as alleged in complaint
paragraph 21(a). However, it has denied the allegations, raised
in complaint paragraphs 21(b) and (c), that it acted unlawfully.
The lawfulness of the withdrawal of recognition depends
upon whether the Union continued to enjoy the support of a
majority of the bargaining unit employees. Respondent claims
that signatures on a petition establish that a majority of the
bargaining unit employees no longer supported the Union.
However, the Union and the General Counsel argue that many
of the individuals who signed the petition were not then bar-
gaining unit employees, and so their signatures do not count.
To determine whether a majority of unit employees had for-
saken the Union, I must first figure out who was in the unit at
the time of the petition, and who was not. Undertaking that
task leads into the realm of complaint paragraph 9.
Complaint Paragraph 9 (the Union’s 9(a) Status)
Complaint paragraph 9 alleges that at all times since July 26,
2001, based on Section 9(a) of the Act, the Charging Party has
been the exclusive collective-bargaining representative of the
unit. In its answer, Respondent admits that the Charging Party
was the 9(a) representative until October 2003, when Respon-
dent withdrew recognition.
Respondent contends that it lawfully withdrew recognition
after receiving a petition signed by a majority of the bargaining
unit employees. Both the General Counsel and the Union dis-
pute the assertion that a majority of unit employees signed this
petition.
To decide whether the Union’s status as exclusive bargaining
representative continues, I must examine the sufficiency of the
VANGUARD FIRE & SECURITY SYSTEMS 1023
petition. More specifically, I must determine whether the peti-
tion constitutes evidence that a majority of the unit employees
had become disaffected with the Union. Doing that begins with
ascertaining who was in the unit when Respondent received the
petition.
The parties have stipulated that the following employees
were in the unit: Jason Engle, Kevin Hanes, Mike King, Bran-
don Lewis, Aaron Maxwell, Jeff McDuffie, Derek Michael,
Phil Moss, Marty Shields, Lou Staples, and Greg Zittel. I so
find.
Contrary to Respondent, the Union contends that the unit in-
cluded Brad Hallock, Archie Lester, and Sean Maser. Hal-
lock’s testimony, which I credit, establishes that he resigned
from employment with Respondent on July 16, 2003. Maser
credibly testified that he quit in August 2003. Therefore, I
conclude that neither Hallock nor Maser was in the bargaining
unit when Respondent withdrew recognition in October 2003.
Lester did not testify and the record provides little informa-
tion about his employment with Respondent. It does not estab-
lish that he did bargaining unit work except on one occasion in
2001, about 2 years before the withdrawal of recognition. I
conclude that Lester was not in the bargaining unit in October
2003.
Respondent asserts, contrary to the General Counsel and the
Union, that the following individuals are in the bargaining unit:
Austin Aamodt, Nathan Sloan, Evan Timmerman, and Sean
Wiggers. In deciding whether each of these individuals was in
the bargaining unit in October 2003, I will examine whether
that person was performing bargaining unit work at that time.
As discussed above, Respondent entered into a June 5, 2002
settlement agreement which defined bargaining work to be “the
installation and repair of fire sprinkler systems without geo-
graphic limitation, and restaurant systems of the type performed
by Marty Shields.” This definition will guide me in determin-
ing whether a particular employee was performing such work.
In 2001, the Respondent and the Union entered into a stipu-
lation concerning which employees would be eligible to vote in
the upcoming election. The parties agreed that the 14-named
employees had been employed in the bargaining unit during the
payroll period for eligibility and that they were the only eligible
voters. The parties further stipulated that “the eligibility issues
resolved herein are final and binding by me in accordance with
the Board’s policy in Norris-Thermador Corp., 119 NLRB
1301 [1958].”
Austin Aamodt’s name appeared on this Norris-Thermador
list. The record indicates that Aamodt continued to perform
bargaining unit work until he was laid off in February 2003.
In a March 6, 2003 letter, Respondent informed the Union
that it intended to recall two laid-off employees “for sprinkler
work” starting March 10, and that “Vanguard also intends to
call back Austin Aamodt to do non-bargaining unit work start-
ing the next day.”
After Aamodt returned from layoff, he worked primarily in
Respondent’s shop. If he had worked solely in the shop, his
position clearly would have been outside the bargaining unit.
However, from time to time, Respondent would assign Aamodt
to install sprinklers. Aamodt did not testify and it is unclear
how often he actually performed this bargaining unit work dur-
ing the summer and fall of 2003.
Aamodt’s name appears on a list of bargaining unit employ-
ees which Respondent gave to the Union on about June 27,
2003. This list described the dental and health benefits pro-
vided to each listed employee. The record indicates that the
Union did not object to the presence of Aamodt’s name on this
list. However, Respondent did not specifically ask the Union if
it agreed that all listed employees were members of the bar-
gaining unit. Therefore, I do not believe that the Union’s fail-
ure to object to Aamodt’s name signifies either assent or acqui-
escence.
In determining whether Aamodt was a member of the bar-
gaining unit at the time Respondent withdrew recognition from
the Union, I will consider whether he was regularly employed
performing bargaining unit work for sufficient periods of time
to demonstrate that he had a substantial interest in the unit’s
wages, hours, and conditions of employment. See M. C. Deco-
rating, Inc., 306 NLRB 816 (1992), citing Oxford Chemicals,
286 NLRB 187 (1987).
The amount of bargaining unit work which Aamodt per-
formed before his transfer to Respondent’s shop is irrelevant in
determining whether he retained his status as a member of the
bargaining unit after the transfer. That status depends on the
regular and substantial performance of unit work after the
transfer. Martin Enterprises, 325 NLRB 714, 715 (1998).
From the record, it is clear that after the transfer, Aamodt
spent most of his working time performing duties outside the
bargaining unit. However, credible evidence does not establish
the number, frequency, and duration of his stints performing
sprinkler installation or other bargaining unit work. Therefore,
the record does not support a conclusion that Aamodt was a
dual-function employee at the time Respondent withdrew rec-
ognition.
The status of a dual-function employee must be based upon
what work the employee actually performed rather than by
what management intended when it transferred the employee to
a different job. Even if an employer planned for an employee
to do both bargaining unit work and nonbargaining unit work,
that intention would mean little if, in fact, the employee actu-
ally performed only the latter.
Therefore, I give little weight to the testimony of Respon-
dent’s chief financial officer, Timothy Callahan, that he under-
stood Aamodt “would work in the shop and when needed, he
would do sprinkler work.” Moreover, this testimony should be
considered together with the next question and answer:
Q. Okay, and at the time he was initially called back,
did you anticipate that in that month or two, that he would
be doing sprinkler installation work?
A. Possibly.
Certainly, the amount of sprinkler installation work would
vary, depending upon the number and size of sales, so man-
agement could not know for sure how often it would pull
Aamodt out of the shop and assign him to an installation pro-
ject. However, Callahan’s tentative answer—“Possibly”—does
not suggest that management expected to use Aamodt’s ser-
vices regularly to perform bargaining unit work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1024
Significantly, Respondent’s March 6, 2003 letter to the Un-
ion, announcing its intent “to call back Austin Aamodt to do
non-bargaining unit work,” says nothing about Aamodt con-
tinuing to perform bargaining unit work even on an occasional
basis. Presumably, if Respondent had expected to assign
Aamodt bargaining unit work on a regular or periodic basis, it
would have mentioned this intention in the letter.
Respondent’s expectations, of course, do not decide the is-
sue. However, the absence of persuasive evidence that Re-
spondent intended to use Aamodt as a dual-function employee
tends to bolster the conclusion that Aamodt actually did not
perform bargaining unit work on a regular basis or for suffi-
cient periods of time.
In sum, the evidence falls short of establishing that, after his
transfer to Respondent’s shop, Aamodt spent enough time in-
stalling sprinklers to retain a substantial interest in the wages,
hours, and working conditions of bargaining unit employees.
Therefore, I conclude that Aamodt was not a dual-function
employee and was not a member of the bargaining unit at the
time Respondent withdrew recognition.
Respondent also contends that Nathan Sloan was a bargain-
ing unit employee in October 2003. Sloan testified that he
began work for Respondent in about June 2002 as a shop em-
ployee, and remained in that position until about August 1,
2003, when he was laid off for 1 day. When Sloan returned
from the layoff, the supervisor over the sprinkler division, Brett
Thomas, told him that he was going to be a sprinkler fitter.
Later, Sloan received a raise because of this change.
During Sloan’s first assignment in this new position (the
“Jackson Products” job), he did not perform sprinkler fitting.
Instead, much of his work involved removing an old sprinkler
system which Respondent’s crew was replacing. During part of
that time, he also fabricated parts for the sprinkler system being
installed. Sloan performed this fabrication work at Respon-
dent’s shop.
Sloan spent much of August 2003 working on this project.
Late that month, he began working on another project, which
entailed installing a new sprinkler system. During the week
ending August 30, 2003, Sloan worked 40 hours on this project.
The next week, Sloan worked 35-1/2 hours installing a new
sprinkler system at a company called Biolife. After that, Sloan
spent a number of consecutive weeks working in Respondent’s
shop.
It is unclear how many hours Sloan worked during the weeks
ending Saturday, September 13, 2003, and Saturday, September
20, 2003. Sloan’s testimony indicates that he spent this work-
ing time in Respondent’s shop, rather than installing sprinklers.
The following week, he worked for 37-1/2 hours in the shop
and spent no time doing sprinkler installation.
Sloan testified that during the next week, ending Saturday,
October 4, 2004, he worked 34-1/2 hours, all of them in the
shop. The next week, ending October 11, 2004, he worked 36
hours, all in the shop. The record does not indicate where
Sloan worked during the week ending October 18, 2004. The
next week, ending October 25, 2004, Sloan worked 40 hours in
the shop.
Sloan testified that when supervisor Thomas told him that he
would be a sprinkler fitter, he also said that when the work of
sprinkler installation got “slow,” Sloan would work in the shop.
He further testified that during the period following the Biolife
job, when he was assigned to work in the shop, he understood
that when installation work got busy again, he would be as-
signed to do it.
In Arlington Masonry Supply, 339 NLRB 817 (2003), the
Board concluded that the evidence was insufficient to warrant a
finding that a worker named Hanson was eligible to vote as a
dual-function employee:
Thus, the record contains only estimates of the amount of
time Hanson spent performing unit work, and these estimates
ranged from a low of 15 percent to a high of 25 percent. Un-
der Board precedent, an employee spending 15 percent of his
time performing unit work is not included in the unit. See,
e.g., Continental Cablevision, 298 NLRB 973, 974–975
(1990) (excluding employees spending approximately 17 per-
cent of their time performing unit work). Although in some
weeks Hanson may have spent up to 25 percent of his time
performing unit work, there is no evidence to show how often
this occurred. In sum, on this record, we cannot conclude that
Hanson “regularly perform[s] duties similar to those per-
formed by unit employees for sufficient periods of time to
demonstrate that [he has] a substantial interest in working
conditions of the unit.” Martin Enterprises, 325 NLRB 714,
715 (1998). [339 NLRB 817 fn. 3.]
The record does not support a finding that Sloan spent any
time in October 2003 performing unit work. Moreover, the
evidence establishes only that Sloan spent 1 week doing such
work in September 2003. Thus, in this case, as in Arlington
Masonry Supply, supra, there is insufficient basis to conclude
that the employee in question regularly performed duties simi-
lar to those performed by unit employees for sufficient periods
of time to demonstrate that he had a substantial interest in the
working conditions of the unit. Therefore, I conclude that
Sloan was not a member of the bargaining unit at the time Re-
spondent withdrew recognition.
Respondent further contends that Evan Timmerman was a
member of the bargaining unit in October 2003. Timmerman
began work for Respondent in March 2003 and was assigned to
“special hazards” systems. Employees performing this work
are not in the bargaining unit. Two other employees, Sean
Wiggers and Paul Florshinger, worked with Timmerman in that
department.
Around August 2003, Respondent sent Timmerman to the
same Jackson Products job on which Sloan had worked. Like
Sloan, Timmerman helped remove the old sprinkler system
which was being replaced. He worked at this jobsite for 1 to 2
weeks.
Up until his work on the Jackson Products job ended,
Timmerman had not performed any sprinkler installation work
for Respondent. After the Jackson Products job, however,
Timmerman did begin receiving assignments to install sprinkler
systems.
Timmerman recalled the names of some projects, but his tes-
timony does not establish how many hours he spent working on
each of these projects. The record does not establish how much
of Timmerman’s total worktime in October 2003 was devoted
VANGUARD FIRE & SECURITY SYSTEMS 1025
to bargaining unit work but there are hints that the percentage
was not high. For example, the General Counsel introduced
into evidence the pretrial affidavit of Sean Wiggers, who
worked with Timmerman in the “special hazards systems” de-
partment. In his affidavit, Wiggers states that Timmerman
“assisted with the demolition of the old sprinkler system at
Jackson Products, but other than that, I believe he [h]as worked
exclusively on special hazards systems.”
Wiggers’ testimony during the hearing indicates that
Timmerman may have performed slightly more bargaining unit
work than Wiggers’ pretrial affidavit suggests. Wiggers testi-
fied as follows:
Q. And isn’t it true that the only job that Mr.
Timmerman worked on, that wasn’t a Special Hazards
system, was a Jackson Products job?
A. No, I believe we worked on a couple other very
small sprinkler jobs before that Jackson Products.
Based on my observations of the witnesses, I conclude that
Wiggers’ memory is more reliable than Timmerman’s.
Timmerman did estimate that after October 2003, he spent
probably 30 percent of his worktime installing sprinklers.
However, testimony concerning how much bargaining unit
work Timmerman did after Respondent withdrew recognition
does not shed much light on Respondent’s assertion that
Timmerman was a bargaining unit employee earlier. It doesn’t
help determine Timmerman’s status either at the time he signed
the petition withdrawing support from the Union or when,
based on that petition, Respondent withdrew recognition.
Although the General Counsel introduced some of Timmer-
man’s payroll records into evidence, these documents only
show the hours he worked, not how much time he spent per-
forming bargaining unit work. Absent evidence concerning the
frequency of Timmerman’s assignments to install sprinklers,
the record affords no basis to conclude that he regularly per-
formed duties similar to those of bargaining unit employees.
Without evidence concerning the amount of time Timmerman
spent doing bargaining unit work, there is no basis to conclude
that these periods were sufficient to demonstrate that Timmer-
man had a substantial interest in the working conditions of the
unit. Because the record fails to establish that Timmerman was
a bargaining unit employee in October 2003, I conclude that he
was not.
Respondent also contends that Sean Wiggers was a member
of the bargaining unit at the time it withdrew recognition in
October 2003. Respondent hired Wiggers in late June 2002.
For the first 6 months, he worked on a crew installing pipe and
sprinkler systems. Then, in December 2002 or January 2003,
Respondent assigned Wiggers to work in “special hazards”
systems. He has continued to work in that department since
that time.
As discussed above, the Respondent and the Union previ-
ously agreed on a bargaining unit description which specifically
excludes work performed by employees in the special hazards
department. Although Wiggers did perform some work remov-
ing the old sprinkler system at the Jackson Products jobsite, I
conclude that this work, on a one-time basis, does not constitute
regular work within the bargaining unit. Therefore, Wiggers is
not a dual-function employee and is not a member of the bar-
gaining unit.
To summarize, I conclude that Austin Aamodt, Brad Hal-
lock, Archie Lester, Sean Maser, Nathan Sloan, Evan Timmer-
man, and Sean Wiggers were not members of the collective-
bargaining unit at the time Respondent withdrew recognition on
about October 15, 2004. Further, I conclude that on this date,
the bargaining unit consisted of the following 11 employees:
Jason Engle, Kevin Hanes, Mike King, Brandon Lewis, Aaron
Maxwell, Jeff McDuffie, Derek Michael, Phil Moss, Marty
Shields, Lou Staples, and Greg Zittel.
The following eight signatures appear on the petition: Sean
A. Wiggers, Evan Timmerman, Jeff McDuffee, Nathan Sloan,
Austin Aamodt, Jack Michael, Marty Shields, and Lon Stam-
ples. However, because Wiggers, Timmerman, Sloan, and
Aamodt were not members of the collective-bargaining unit,
their signatures may not be counted in determining whether a
majority of bargaining unit employees had manifested a desire
not to be represented by the Union. The remaining four signers
were unit employees, and, therefore, their signatures should be
counted.
The bargaining unit included 11 employees at the relevant
time, but only 4 of them signed the petition. Therefore, I con-
clude that a majority of the bargaining unit employees had not
indicated a desire not to be represented by the Union. Further, I
find that the Government has proven that at all material times,
the Union has been the exclusive collective-bargaining repre-
sentative of the employees in the unit, as alleged in complaint
paragraph 9.
II. UNILATERAL CHANGE ALLEGATIONS
A. Complaint Paragraph 10 (Change in Cell Phone Policy)
Paragraph 10 of the complaint alleges that “about December
5, 2002, Respondent implemented a policy requiring unit em-
ployees to reimburse Respondent for certain costs of subscrib-
ing to Nextel cell phone service.” Respondent denies this alle-
gation.
The record establishes that sometime before December 2001,
Respondent began furnishing cellular telephones to certain
employees and paid Nextel a fixed monthly amount for each
cell phone. This monthly amount paid for sending and receiv-
ing messages, voice mail service, and using the telephone for a
specified number of minutes (“air time”).
The alleged unilateral change concerns what action Respon-
dent would take if an employee spent more time on his cell
phone than the number of minutes provided in the basic plan.
When the telephone company’s bill arrived, who would pay for
the additional charges?
According to the Government, Respondent absorbed the ex-
tra expense until December 5, 2002, when it began deducting
these amounts from employees’ paychecks. Further, the Gen-
eral Counsel asserts that Respondent made this change without
first notifying and bargaining with the Union, thereby violating
Section 8(a)(5) of the Act.
Respondent counters that it made no change in reimburse-
ment policy on December 5, 2002. Before that date, employees
had to pay for cell phone use which exceeded the amount of
“air time” provided in the basic plan. The only significant dif-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1026
ference was that the employee formerly assigned to administer
this policy didn’t do a very good job deducting the extra
charges from employees’ pay. When management reassigned
this task to someone else, the payroll office began making the
deductions consistently.
The record establishes that a year before the alleged unilat-
eral change, Respondent had a cell phone policy very similar to
the one it allegedly imposed unilaterally on December 5, 2002.
Respondent explained this policy to employees in a December
7, 2001 memorandum:
1. This letter memo is to clarify the charges that will
be billed to you if you dial information, or exceed
your monthly minutes.
2. Effective 12/7/01 all information calls will be
charged back to you at a $1.19 each.
3. If you need information call this office. We will
be glad to help you with the number you need.
4. Vanguard will pay your Nextel approved monthly
plan amount. Any charges over this amount will
be billed back to you.
5. This amount will cover all two way messages,
voice mail access, and the monthly number of min-
utes for cellular air time as per our plan. Any
charges over the amount will be billed back to you.
Our current plan allows 200 minutes per user.
Please watch your cellular minutes, use your 2 way
more. Charges for extra cellular minute is $.25
each.
6. Remember your Nextell usage is paid by Vanguard
and is not intended to be for your private use.
7. Just a friendly reminder that the retrieval of your
voice mail messages are charged against your cel-
lular time.
8. If there should be any questions, please contact
Rick or Sharon.
(R. Exh. 22; original in all capital letters.) On December 5,
2002, Respondent issued individualized memoranda to employ-
ees using cell phones. Each memorandum included a general
statement of policy, as well as the sentence, “You owe Van-
guard $______. This will come out of your next pay check.”
(Each memo specified the amount owed by the particular em-
ployee who received it.)
The December 5, 2002 memoranda described a cell phone
policy quite similar to that announced a year earlier. Specifi-
cally, the December 5, 2002 memoranda stated:
As of the first of this month, our Nextel monthly plan is
changing. The new plan that will be in effect will consist of
the following:
250 cell minutes anytime
500 cell minutes nites and weekends 9:00 pm to 7:00
am
100 direct connect minutes
Voicemail is included
Caller ID is included
Extra minutes over the above 250 minutes, will be
billed at $.35 per minute.
Still in effect is the cost of calls to information $1.19 each,
and incurred additional extra charges for long distance on per-
sonal calls and text messaging.
(GC Exh. 22, original in all capitals.) In some ways, the De-
cember 5, 2002 cell phone policy changes the policy described
in the December 7, 2001 memo. The charge for extra service
rose from 25 cents to 35 cents per minute. On the other hand,
such charges do not begin until after 250 minutes, thus, giving
the employee 50 minutes more “free” calling time.
To violate Section 8(a)(5), a unilateral change must be mate-
rial, substantial and significant. Crittenton Hospital, 342
NLRB 686 (2004), citing Fresno Bee, 339 NLRB 1214, 1216
(2003), and Peerless Food Products, 236 NLRB 161 (1978).
Because the increase in “free” minutes tends to offset the in-
creased charge for an “extra” minute, these changes would not
appear to have a substantial or significant effect on working
conditions. Therefore, I conclude that the announced change in
cell phone policy does not violate Section 8(a)(5).
However, under the Government’s theory, the violation in-
heres in Respondent’s implementation of a change in cell phone
policy, not in the announcement of it. Stated another way, the
allegedly unlawful change does not involve placing a new pol-
icy “on the books” but rather enforcing more strictly a policy
which had lain dormant before.
To prove that Respondent did not enforce its existing cell
phone policy before December 5, 2002, and, thus, did not re-
quire employees to reimburse cell phone expenses until that
time, the General Counsel relies, in part, on the documents
Respondent produced pursuant to subpoena. More precisely,
the government relies on the conclusion to be drawn from the
absence of certain records sought by the subpoena.
The General Counsel’s subpoena called upon Respondent to
produce “true copies of all documents showing any portion of
Respondent’s monthly cellular telephone bill being paid by
employees from January 2001 through October 2003.” How-
ever, the records Respondent produced clearly establish only
one instance in which Respondent billed an employee for cell
phone minutes before December 5, 2002.
This instance involved employee Eric Anderson, who signed
a “Cell Phone Usage With Deduction Authorization” dated
January 5, 2001. By doing so, Anderson acknowledged that he
had exceeded the allotted number of cell phone minutes and
authorized charges for this use to be deducted from his pay.
Anderson’s “Authorization,” thus, establishes one instance in
which Respondent required an employee to pay cell phone
charges before December 5, 2002. Respondent’s failure to
document other such instances suggests that there were none.
Respondent did produce a list purporting to show other in-
stances in which it charged employees for cell phone use. Ac-
cording to the list, in evidence as Respondent’s Exhibit 40,
these instances go back to June 23, 2000. However, I have
little confidence in the accuracy of this list and do not credit it.
According to Respondent’s chief financial officer, Timothy
Callahan, he obtained the information for this list from post-it
notes he received from Office Manager Vandi Young. These
notes provided information which Young obtained from an
VANGUARD FIRE & SECURITY SYSTEMS 1027
administrative employee, Sharon Bishop, concerning the
amounts to be deducted from each employee’s pay.
Respondent did not produce these post-it notes, which Calla-
han discarded after transferring the information to a spread-
sheet. Accordingly, there is no way to verify that Callahan ac-
curately copied the information on the post-it notes.
Additionally, the information came to Callahan secondhand.
Young, who wrote the notes, obtained the information from
Bishop. Neither Young nor Bishop testified, and there is no
way to determine how carefully Young transcribed the informa-
tion Bishop gave her.
Moreover, there is some reason to question the reliability of
the information Bishop provided. Respondent had assigned her
to administer the cell phone policy, but ultimately relieved her
of that responsibility because of poor performance. During his
testimony, Callahan explained why Respondent transferred the
duty to someone else in December 2002:
Q. What happened?
A. It came to my knowledge that it wasn’t being han-
dled in a timely fashion, nor was she handling the Nextel
account very well.
If Bishop had been handling the Nextel account that poorly, I
cannot simply assume that she reliably reported the cell phone
information to Young.
The information on this list also does not agree with the bills
which Respondent gave to employees, and produced pursuant
to subpoena. Employee Marty Shields received bills for $83.23
and $70.76, which are in evidence as part of General Counsel’s
Exhibit 22. These amounts should show up on Respondent’s
list, if it is accurate. However, the $70.76 figure does not ap-
pear.
When cross-examined about this discrepancy, Callahan
raised the possibility that there might be a “multiple combina-
tion.” Although Callahan’s meaning is not entirely clear, I
believe he meant that Shields may have paid the bill in install-
ments which, added together, totaled $70.76. However, the
math doesn’t work. The list (R. Exh. 40) indicates that Shields
received the following bills for cell phone use:
8/30/2002 $30.50 4/25/2003 $84.31
12/20/2002 54.81 8/1/2003 52.09
1/17/2003 11.03 8/29/2003 83.23
2/14/2003 23.54
Both of Shields’ bills in General Counsel’s Exhibit 22 are
dated December 5, 2002, but one of them is for the same
amount, $83.23, as the August 29, 2003 bill listed on Respon-
dent’s Exhibit 40. However, the list does not indicate that
Shields ever received a bill for $70.76, and no combination of
the amounts on the list adds up to $70.76. When asked about
this matter on cross-examination, Callahan did not answer re-
sponsively:
Q. I am asking you, can you tell from Respondent Ex-
hibit No. 40, whether Marty Shields was billed $70.76.
A. I can tell he was billed at least $70.76.
Q. Okay, but that wasn’t my question, now. Can you
tell, on that bill when he was billed the $70.76?
A. It could be a multiple combination of some of
these.
Q. Well, if you want, we can go through them and you
can add all of the varying different combinations, but are
any of them going to total $70.76?
A. Perhaps there is another Marty Shields.
No evidence supports Callahan’s speculation that “perhaps
there is another Marty Shields” and it is difficult to believe that
Callahan raised this possibility seriously. On June 5, 2002,
Respondent and the Union entered into an agreement which
redefined the bargaining unit and which specifically referred to
Marty Shields. The new unit description, quoted above, states
that “Marty Shields shall remain a member of the bargaining
unit” but gives no indication that Respondent employed more
than one person with this name.
After some further cross-examination, Callahan acknowl-
edged that there was no combination of charges on the list total-
ing $70.76 for Marty Shields. Clearly, the list does not reflect
reliably how Respondent billed its employees for cell phone
use. Therefore, I accord it no evidentiary weight.
In sum, the credited documentary evidence does not show
that Respondent had a past practice of billing employees for
cell phone use. The exhibits do indicate that on one occasion,
on January 5, 2001, Respondent billed employee Anderson.
However, this one instance, almost 2 years before the alleged
unilateral change, neither amounts to an established practice
nor defines the status quo.
In addition to written records, the General Counsel relies on
the testimony of three employees—Brad Hallock, Mike King,
and Sean Maser—to prove that Respondent did not begin re-
quiring employees to pay for any cell phone expenses until
around December 5, 2002.
Hallock began work for Respondent in 1999. He quit his po-
sition with Respondent on July 16, 2003. Accordingly, I have
found that he was not a member of the bargaining unit at the
time Respondent withdrew recognition. However, I must now
determine whether Hallock held a job within the bargaining
unit before his resignation.
While working for Respondent, Hallock installed sprinkler
systems, among other duties. Initially, Hallock testified that he
“never dealt with gasses or chemicals in the system. It was just
water or air.” From this testimony, it would appear that he did
not install “special hazards” systems that extinguished fires
with gas rather than with water. However, later in his testi-
mony Hallock admitted having performed some work on spe-
cial hazards systems about 9 months before the representation
election.
At the time of the alleged unilateral change concerning cell
phone reimbursement, Hallock was no longer installing special
hazards systems. I conclude that during this time period, he
was a member of the bargaining unit.
Hallock testified that Respondent began providing him cell
phone service around December 1999, and that he never re-
ceived a bill for such service from Respondent until January
2003. The “bill” which Hallock received is actually a copy of
the December 5, 2002 memo, quoted above, on which the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1028
amount $55.34 appears in handwriting. This portion of the
memo states, in bold type:
You owe Vanguard $55.34. This will come out of your next
pay check.
According to Hallock, when he asked Office Manager Vandi
Young about the bill, she replied that he would have to sign a
memo and if he didn’t sign, management would discontinue his
cell phone service. Although Hallock’s testimony is unclear on
this point, it appears that Young was referring to the December
5, 2002 memorandum informing each employee how much he
owed.
Even assuming that Respondent had not billed Hallock for
cell phone use before January 2003, that fact alone does not
establish any change in Respondent’s policy. Possibly, the bill
that Hallock received in January 2003 only signified a change
in how much Hallock used the cell phone, not in Respondent’s
cell phone policy.
Under the policy described in management’s December 7,
2001 memo, an employee would only be billed if he called
“information” (directory assistance) on the phone or used it for
more than 200 minutes per month. To establish that Respon-
dent changed its policy as applied to Hallock, the Government
must show that in the past, Hallock had incurred such extra
charges without Respondent seeking reimbursement for them.
The General Counsel subpoenaed the cell phone bills which
Respondent received from Nextel, and introduced these records
into evidence. Each bill itemizes the number of minutes each
cell phone was used in a particular accounting period. These
records show the number of minutes used by Hallock’s phone
each month:
BILLING DATE BILLING PERIOD MINUTES
August 8, 2001 07/07/01—08/06/01 No entry
September 8, 2001 08/07/01—09/06/01 No entry
October 7, 2001 09/07/01—10/06/01 No entry
November 7, 2001 10/07/01—11/06/01 No entry
December 7, 2001 11/07/01—12/06/01 No entry
January 7, 2002 12/07/01—01/06/02 8:34
February 7, 2002 01/07/02—02/06/02 3:48
March 8, 2002 02/07/02—03/06/02 0:28
April 7, 2002 03/07/02—04/06/02 151:52
May 7, 2002 04/07/02—05/06/02 95:30
June 8, 2002 05/07/02—06/06/02 No entry (p. 3 of
this document is
missing)
July 8, 2002 06/07/02—07/06/02 29:26
August 8, 2002 07/07/02—08/06/02 72:54
September 12, 2002 08/07/02—09/06/02 135:23
October 10, 2002 09/07/02—10/06/02 97:24
November 11, 2002 10/07/02—11/06/02 152:01
December 11, 2002 11/07/02—12/06/02 75:58
January 11, 2003 12/07/02—01/06/03 2:02
In none of these months did Hallock’s cell phone exceed the
200 “free” minutes. Respondent would have had no occasion
to seek reimbursement from Hallock for cell phone service in
2002. Under the policies explained in the December 7, 2001
and December 5, 2002 memoranda, Hallock would not have
been obliged to pay anything for cell phone service in 2002
because he never exceeded the monthly limit of “free” minutes.
Accordingly, the records offer no basis to conclude that Re-
spondent had a practice of overlooking its right to reimburse-
ment but abruptly decided to go “by the book” in January 2003.
However, something certainly did change. In January 2003,
Respondent ignored its own published policy by seeking a re-
imbursement it was not entitled to receive under either the De-
cember 7, 2001 memo (200 “free” minutes per month) or the
December 5, 2002 memo (250 “free” minutes per month).
Hallock never went beyond these limits. Nonetheless, Respon-
dent billed him for $55.34.
Reducing an employee’s pay by this amount certainly would
constitute a material, substantial and significant change in terms
and conditions of employment. However, the record does not
establish either that Hallock paid this bill or that Respondent
deducted the amount from Hallock’s pay.
As discussed above, Office Manager Young told Hallock he
would have to sign the bill or lose his cell phone use. But Hal-
lock’s testimony does not establish either that he signed the bill
or paid it. The bill itself is not marked “paid,” although certain
similar bills also in evidence (as GC Exh. 22) are marked paid.
Thus, the record does not establish that the terms of Hallock’s
employment changed in any material way.
Moreover, some inconsistencies raise questions about the re-
liability of Hallock’s testimony. For example, Hallock testified
that management allowed him 300 free minutes of “air time”
per month, but the December 7, 2001 and December 5, 2002
memoranda set the limit at 200 and 250 minutes, respectively.
Hallock stated in his pretrial affidavit, “I do not know ever if
I went over the 300 minutes because I never received a bill
from the company for the portion of the phone bill until about
March, 2003.” During the hearing, however, Hallock testified
that he received the bill in January 2003, not March.
Further, Hallock’s testimony contradicts his pretrial affidavit
concerning what a company representative told him about Re-
spondent’s cell phone policy. This individual was Sharon
Bishop, whom Hallock identified as the person in charge of cell
phone services at Vanguard.
In 2001, Hallock had a conversation with Bishop concerning
Respondent’s cell phone policy. During the hearing, Hallock
described this conversation as follows:
Q. BY MR. RYAN (continuing) Sharon Bishop told you
that you would have 300 any time minutes under that plan
that you could use, right?
A. Yes.
Q. And she also told you that, if you went over that
300 limit, you would be responsible for paying for any of
the overage?
A. No. I went in there and asked for the amount of
minutes. My specifics were the direct connects and the
cellular minutes and she gave me the amount, but nothing
was ever said about paying for it. . . .
Although Hallock testified that “nothing was ever said about
paying” for the excess “air time,” in his pretrial affidavit Hal-
lock had stated, “I think Sharon Bishop was the one who told
me at the time that I had 300 any time minutes that I could use
and that I would have to pay if I went over the limit.” (Empha-
VANGUARD FIRE & SECURITY SYSTEMS 1029
sis added.) This inconsistency increases my doubt about the
reliability of Hallock’s testimony. To the extent that this testi-
mony is inconsistent with that of other witnesses, I do not credit
it.
The government also relies on the testimony of employee
Mike King to support a finding that Respondent implemented a
unilateral change in its cell phone policy. King, who began
work for Respondent in January 1999, testified that Respondent
began providing him cell phone service some time in the fall of
2000 but he did not receive any bill for cell phone service until
around January 2003. He further testified that he complained
about the bill but then paid it. The records of King’s cell phone
use may be summarized as follows:
BILLING DATE BILLING PERIOD MINUTES
August 8, 2001 07/07/01—08/06/01 118:16
September 8, 2001 08/07/01—09/06/01 83:48
October 7, 2001 09/07/01—10/06/01 202:04
November 7, 2001 10/07/01—11/06/01 167:16
December 7, 2001 11/07/01—12/06/01 140:00
January 7, 2002 12/07/01—01/06/02 141:42
February 7, 2002 01/07/02—02/06/02
06/02
152:34
March 8, 2002 02/07/02—03/06/02 227:34
April 7, 2002 03/07/02—04/06/02 122:02
May 7, 2002 04/07/02—05/06/02 126:44
June 8, 2002 05/07/02—06/06/02 No entry (p. 3 of
this document is
missing)
July 8, 2002 06/07/02—07/06/02 181:58
August 8, 2002 07/07/02—08/06/02 224:04
September 12, 2002 08/07/02—09/06/02 255:31
October 10, 2002 09/07/02—10/06/02 196:55
November 11, 2002 10/07/02—11/06/02 290:23
December 11, 2002 11/07/02—12/06/02 77:06
January 11, 2003 12/07/02—01/06/03 75:58
These records establish that King exceeded the 200 “free”
minutes during the following months: September 7 to October
6, 2001 (202:04 minutes); February 7 to March 6, 2002 (227:34
minutes); July 7 to August 6, 2002 (224:04 minutes); August 7
to September 6, 2002 (255:31 minutes); and October 7 to No-
vember 6, 2002 (290:23 minutes).
Based on King’s testimony, and the absence of contradictory
information in the documents which Respondent produced
pursuant to subpoena, I find that management did not seek re-
imbursement from King for excess cell phone usage in any of
the months identified above. Therefore, I conclude that, until
December 2003, Respondent did not follow the policy it had
explained to employees in its December 7, 2001 memo.
King also testified that around January 2003, he received a
bill for approximately $70 for cell phone use and that the
amount was deducted from a later paycheck. I credit that tes-
timony.
The documents produced by Respondent pursuant to sub-
poena do not include the bill to which King referred. However,
based on King’s credited testimony, I find that he did receive
such a bill in about January 2003 and that later, Respondent
deducted the amount of the bill from his paycheck.
The subpoenaed telephone records establish that during
2002, a number of other bargaining unit employees frequently
exceeded the “free” minutes allowed under Respondent’s an-
nounced plan, yet there is no evidence that Respondent billed
them or deducted the charges from their paychecks. Therefore,
I conclude that Respondent’s established practice until Decem-
ber 2002 was not to require reimbursement for use of “air time”
beyond the specified limits. Accordingly, I conclude that by
billing King in December 2002 for such charges and by deduct-
ing the amount later from King’s pay, Respondent made a ma-
terial, substantial and significant change in the terms and condi-
tions of employment of a member of the bargaining unit.
The General Counsel also cites the testimony of Sean Maser
to support this unilateral change allegation raised in complaint
paragraph 10. Master was not in the bargaining unit when Re-
spondent withdrew recognition in October 2003 because he had
quit 2 months earlier. However, the evidence establishes that
before he quit, he was performing bargaining unit work. Maser
began work for Respondent in March 2001. During his testi-
mony, Maser wasn’t sure when Respondent began providing
him cell phone service:
Q. And approximately when was this that you re-
ceived the service?
A. Oh, it had to have been—it’s hard to say—fall,
summer, 2002, maybe. 2001. I can’t—I’m not for sure on
the exact time when I got my phone.
However, the records summarized below suggest that Re-
spondent first gave Maser a cell phone in February 2002. It
also appears likely that Maser received the cell phone previ-
ously assigned to employee Kevin Crow, or at least used the
same telephone number previously used by Crow. Respon-
dent’s records concerning use of this cell phone may be sum-
marized as follows:
BILLING DATE BILLING PERIOD MINUTES
August 8, 2001 07/07/01—08/06/01 No entry
September 8, 2001 08/07/01—09/06/01 No entry
October 7, 2001 09/07/01—10/06/01 No entry
November 7, 2001 10/07/01—11/06/01 No entry
December 7, 2001 11/07/01—12/06/01 No entry
January 7, 2002 12/07/01—01/06/02 No entry
February 7, 2002 01/07/02—02/06/02
6/02
No entry
March 8, 2002 02/07/02—03/06/02 170:22
April 7, 2002 03/07/02—04/06/02 184:50
May 7, 2002 04/07/02—05/06/02 137:00 (same
phone number, but
listed under Kevin
Crow’s name)
June 8, 2002 05/07/02—06/06/02 No entry (p. 3 of
this document is
missing)
July 8, 2002 06/07/02—07/06/02 168:00 (same
phone number, but
listed under Kevin
Crow’s name)
August 8, 2002 07/07/02—08/06/02 66:04
September 12, 2002 08/07/02—09/06/02 153:36
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1030
BILLING DATE BILLING PERIOD MINUTES
October 10, 2002 09/07/02—10/06/02 82:34
November 11, 2002 10/07/02—11/06/02 84:06
December 11, 2002 11/07/02—12/06/02 113:42
January 11, 2003 12/07/02—01/06/03 157:36
During the billing periods listed above, the cell phone as-
signed to Maser never exceeded the 200 “free” minutes allowed
each month. Therefore, the records do not shed light on
whether Respondent had a practice of “forgiving” the charges
for minutes exceeding 200.
Maser testified that he first received a bill for cell phone ser-
vice around Christmas 2002. This testimony accords with Ma-
ser’s pretrial affidavit, which also states that the amount of the
bill was deducted from a paycheck. Maser’s affidavit further
states that Respondent made similar deductions from 2 later
paychecks.
Although the bills received by Maser were not in the docu-
ments which Respondent produced pursuant to subpoena, no
evidence contradicts Maser. Accordingly, I find that Respon-
dent first billed Maser for cell phone “air time” in December
2002 and deducted the amount billed from his paycheck.
The telephone records, summarized above, establish that
Maser had not used the cell phone enough to exceed the “free”
minutes allowed under Respondent’s plan, as described in the
December 7, 2001 and December 5, 2002 memoranda. In other
words, if Respondent had followed the plan it had announced to
employees, it would neither have given Maser a bill for cell
phone use in December 2002 nor deducted the amount of the
bill from his pay. By taking these actions, Respondent made a
material, substantial and significant change in Maser’s terms
and conditions of employment.
Essentially. the evidence establishes two different types of
unilateral changes regarding reimbursement for cell phone use.
In the case of King, Respondent had not applied the terms of its
announced policy before December 2002, but instead forgave
or overlooked cell phone use which exceeded that allowed by
the announced policy. When Respondent abruptly began en-
forcing the previously ignored policy, that action changed terms
and conditions of employment.
In Maser’s case, the change did not involve the new en-
forcement of a long-dormant policy but rather action at odds
with both the announced policy and the actual past practice.
Respondent’s failure to follow its own stated policy undercuts a
possible defense.
Testimony suggests that the administrative employee who
had been assigned to apply the announced policy had failed to
do so, and, therefore, had been replaced with someone more
diligent. Respondent may contend that the previous administra-
tor’s laxity did not represent official policy and the resulting
failure to enforce the policy did not establish past practice.
However, an employer’s actions, not its intentions, deter-
mine the terms and conditions of employment. An employer
might intend to give every employee a $100 raise, but if the
money never appears in the employees’ paychecks, it consti-
tutes at best a wish, not a practice.
Moreover, Respondent cannot explain away its action simply
by saying that it replaced an inefficient administrator with
someone more punctilious. If that were the case, the new, abler
administrator would have applied the policy scrupulously to
both King and Maser, and therefore would have recognized that
Maser had not exceeded the number of “free” minutes which
Respondent’s stated policy allowed. In other words, if Respon-
dent merely had sought to enforce its announced policy consis-
tently, it would not have sent Maser a bill for an amount he
didn’t owe.
The evidence falls short of establishing that Respondent
abruptly began requiring all bargaining unit employees to pay
for some of their cell phone “air time,” but it is not necessary to
show that an alleged unilateral change affected everyone in the
unit. With respect to King and Maser, at least, the changes
were material, substantial and significant.
Additionally, the record establishes that Respondent made
these changes without first notifying and bargaining with the
Union. However, before reaching any conclusion concerning
the lawfulness of Respondent’s conduct, I must consider Re-
spondent’s “statute of limitations” defense.
In its answer to the original complaint, Respondent raised the
defense that “the allegations concerning the implementation of
the cell phone policy are barred by the limitation period pro-
vided at Section 10(b) of the Act.” Respondent bears the bur-
den of establishing this defense by proving that the alleged
violation took place more than six months before the filing of
the unfair labor practice charge.
In determining whether this defense is meritorious, the first
step must be to identify precisely the conduct which the com-
plaint alleges to be violative. If the allegedly violative act were
the promulgation of the cell phone reimbursement policy, then
the statute of limitations would apply. Respondent first issued
its cell phone policy some time before December 7, 2001,
which certainly is more than 6 months before January 17, 2003,
when the Union filed its initial charge in this proceeding.
However, the complaint alleges that Respondent violated the
Act by implementing the policy, rather than by promulgating it.
In other words, Respondent changed working conditions when
it started giving employees bills for cell phone use and then
began deducting the billed amounts from the employees’ pay.
According to the General Counsel, Respondent began taking
these actions around December 5, 2002, certainly less than 6
months before the January 17, 2003 charge.
Additionally, I find that Respondent made these changes
without first notifying and bargaining with the Union. There-
fore, I conclude that Respondent thereby violated Section
8(a)(5) and (1) of the Act.
B. Complaint Paragraph 11 (Discretionary
Wage Rates)
Complaint paragraph 11 alleges, in part, that on July 8, 2002,
Respondent implemented a discretionary starting wage rate to
employee Phillip Moss, and on July 22, 2002, implemented a
discretionary starting wage rate to employee Jason Engle. In
other words, the government alleges that when it hired these
two employees, it began them at wage rates higher than the
starting wage rates applied to other new employees.
VANGUARD FIRE & SECURITY SYSTEMS 1031
As stated above, Respondent’s answer admits these allega-
tions. However, Respondent asserts that they are barred by the
statute of limitations.
1. Respondent’s 10(b) defense
These allegations appeared in the original complaint and also
in the first and second amended complaints. In its answers to
all of the complaints, Respondent has admitted these allega-
tions. Additionally, in its answers to the original and first
amended complaints, Respondent raised the defense that these
allegations were barred by the statute of limitations inherent in
Section 10(b) of the Act.
Respondent did not raise the 10(b) defense in its answer to
the second amended complaint. However, Respondent did not
thereby waive this defense. To the contrary, it has continued to
assert the 10(b) defense at trial and in its posthearing brief.
Section 10(b) of the Act provides, in part, that “no complaint
shall issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom
such charge is made, unless the person aggrieved thereby was
prevented from filing such charge by reason of service in the
armed forces, in which event the six–month period shall be
computed from the day of his discharge.” 29 U.S.C. § 160(b).
Respondent bears the burden of proving that the actions alleged
in complaint paragraph 11 took place more than 6 months be-
fore any charge concerning them.
On January 17, 2003, the Union filed the initial charge in
Case 7–CA–45823. That charge alleged that “[w]ithin the past
six (6) months, the above-named Employer has violated the Act
by, inter alia. . .4. Unilaterally setting starting wage rate for
newly hired employees, without providing the Union with ad-
vance notice and an opportunity to bargain.”
This language clearly covers the conduct alleged in com-
plaint paragraph 11. It does not matter that the charge did not
identify the employees who received the changed wage rates.
The charge provided Respondent with enough information to
investigate the allegations and to prepare a defense, and is
therefore sufficient to mark the ending date of the 6-month
period.
July 8, 2002, the date on which Respondent admittedly im-
plemented a starting wage rate for employee Moss, is more than
6 months before January 17, 2003. Therefore, I conclude that
Section 10(b) bars the litigation of this allegation.
However, July 22, 2002, the date on which Respondent im-
plemented a starting wage rate for employee Engle, is less than
6 months before the filing of the January 17, 2003 charge. I
conclude that this allegation is not time barred.
Additionally, complaint paragraph 11 alleges more than that
Respondent implemented initial starting wage rates for Moss
and Engle on July 8 and 22, 2002. It also alleges that “since
those dates [Respondent] has given [Moss and Engle] discre-
tionary wage increases.” Section 10(b) would not bar the litiga-
tion of any wage increase given after July 17, 2002.
2. Engle’s starting wage rate
Respondent has admitted that it implemented the discretion-
ary starting wage rate for employee Engle, and also has admit-
ted that this action concerned a mandatory subject of bargain-
ing. Additionally, the record establishes that Respondent did
not notify the Union and afford it an opportunity to bargain
before implementing a starting wage rate for Engle. The record
further establishes that this wage rate ($17.25 per hour) ex-
ceeded the starting wage rates of other employees in the bar-
gaining unit (typically between $10 and $11.25 per hour).
In Washoe Medical Center, 337 NLRB 101 (2001), the
Board held that an employer violated Section 8(a)(5) and (1) of
the Act by “continuing to unilaterally set starting wage rates for
newly hired employees after the union election, without provid-
ing the Union with advance notice and an opportunity to bar-
gain about these wages.” Before applying this precedent to the
present facts, it may be helpful to examine how the Washoe
Medical Center principle fits into the overall theory of unilat-
eral change violations.
As a general principle, after a union becomes the exclusive
representative of a unit of employees, their employer may not
change the existing terms and conditions of employment with-
out first notifying the union and providing a chance to bargain.
In other words, such an employer has a duty to “maintain the
status quo.” However, defining what constitutes the “status
quo” is not always simple.
For example, assume that an employer had a longstanding
practice of deducting 20 percent of the cost of health insurance
from each employee’s pay. On a certain day, a union becomes
the exclusive collective-bargaining representative. Does the
“status quo” consist of the amount each employee paid for
health insurance on this date, or does it consist of 20 percent of
the health insurance cost for each employee?
In Post-Tribune Co., 337 NLRB 1279 (2002), the Board held
that in such a situation, the employer’s past practice of deduct-
ing 20 percent of the health insurance cost from the employee’s
pay constituted the “status quo.” When the cost of the health
insurance went up, the employer deducted more so that the
employee continued to pay 20 percent of the cost. Even though
this action resulted in a larger deduction and therefore less take-
home pay, it was consistent with the employer’s past practice
and did not amount to a change in the status quo.
It may be argued that a similar principle should apply to the
present case. If, in the past, Respondent offered to pay a higher
wage to attract a more experienced individual, doesn’t this
practice of matching the starting wage to the skill level consti-
tute the “status quo”? That reasoning would seem persuasive
but for another consideration: The amount of discretion re-
tained by the employer.
The Board does not consider the exercise of discretion to be
a binding past practice for a rather obvious reason related to the
change which occurs when employees designate a union to be
their exclusive representative. When the duty to bargain collec-
tively arises, bilateral negotiation replaces unilateral discretion.
Stated another way, in the absence of a union, an employer
typically exercises discretion to set all terms and conditions of
employment. Such unilateral decisionmaking is the norm be-
fore employees select a union. However, to protect the union’s
right to negotiate concerning all mandatory subjects of bargain-
ing, this norm cannot be allowed to define the “status quo.”
Indeed, if such unilateral decisionmaking did “set a precedent”
to be maintained after a majority of employees selected a union,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1032
then the negotiating process would be empty and the employ-
ees’ choice meaningless.
Therefore, if an employer’s previous practice involves a sig-
nificant amount of discretion, that practice does not continue
into the bargaining relationship. Thus, in Washoe Medical
Center, supra, the Board examined the way a recently organ-
ized employer had determined starting wage rates before un-
ionization. It concluded that this process involved the exercise
of so much discretion that continuing it would infringe upon the
union’s right to negotiate. The Board wrote:
Our dissenting colleague contends that the Respon-
dent’s policy and procedure for setting initial wage rates
entails the consistent application of uniform standards and,
thus, curtails its exercise of discretion. On the contrary,
we agree with the judge that the procedure used by the Re-
spondent . . . is in no sense automatic. Rather, it entails
the application of a large measure of discretion. The Re-
spondent is unfettered in its comparison of applicants’ pro-
fessional qualifications, experience and specialty certifica-
tions and, importantly, the value it assigns to those criteria
in rating the new hires relative to other departmental em-
ployees. . . . Such judgments are necessarily subjective, as
it is unlikely that any two applicants or employees will be
precisely comparable. It is this substantial degree of dis-
cretion, as well as the unavoidable exercise of such discre-
tion each time the Respondent establishes a wage rate for a
new employee, that requires the Respondent to bargain
with the Union. [337 NLRB at 202, citing Oneita Knitting
Mills, 205 NLRB 500 (1973).]
In the present case, the record does not indicate that the Re-
spondent had decided upon starting wage rates by applying a
rigid formula based on objective criteria. An important factor
appeared to be management’s estimate of how much money it
would take to entice a particular applicant to accept a job offer.
Making such an estimate required the exercise of considerable
discretion.
Credible evidence establishes that Respondent did not notify
or bargain with the Union before deciding upon the wage rate
to be offered Engle, and implementing the decision to offer that
wage rate, in July 2002. As Respondent admits, this action
concerned a mandatory subject of collective bargaining. More-
over, Engle’s starting wage rate was so much higher than that
paid to other new employees ($17.25 an hour compared to $10
to $11.25 an hour), implementing it clearly constituted a mate-
rial, substantial and significant change in terms and conditions
of employment.
In sum, implementing Engle’s starting wage rate, without
first notifying the Union and affording it an opportunity to bar-
gain, constituted an unlawful unilateral change in a condition of
employment which was a mandatory subject of bargaining. I
recommend that the Board find that Respondent thereby vio-
lated Section 8(a)(5) and (1) of the Act. By admitting the alle-
gations in complaint paragraph 11, Respondent also has admit-
ted giving later discretionary wage increases to Moss and
Engle. Except for raises granted before July 17, 2002, Section
10(b) does not preclude finding a violation. Therefore, I rec-
ommend that the Board find that by granting such wage in-
creases, Respondent violated Section 8(a)(5) and (1) of the Act.
C. Complaint Paragraph 12
Complaint paragraph 12, as amended at hearing, alleges that
on several occasions, Respondent gave discretionary wage
increases to certain employees. Respondent has admitted these
allegations.
More specifically, complaint paragraph 12(a) alleges that
about November 2002, a more precise date being presently
unknown, Respondent awarded a discretionary wage increase
to its employee Mike King. Complaint paragraph 12(b) alleges
that about September 6, 2002, Respondent awarded a discre-
tionary wage increase to its employee Nate Sloan. Complaint
paragraph 12(c) alleges that on or about September or October
2003, Respondent awarded discretionary wage increases to its
employees Sean Wiggers and Evan Timmerman.
1. Respondent’s 10(b) defense
Although Respondent has admitted all of these allegations, it
has raised the defense that the allegations in complaint para-
graphs 12(b) and (c) are barred by the 6-month statute of limita-
tions in Section 10(b) of the Act. It may be helpful to begin the
consideration of this issue by listing the employees affected and
the dates in table form:
Mike King “About November 2002”
Nate Sloan September 6, 2002
Sean Wiggers September or October 2003
Evan Timmerman September or October 2003
The Union’s January 17, 2003 charge in Case 7–CA–45823
alleges, in part, that “Within the past six (6) months, the above–
named Employer has violated the Act by, inter alia . . . 2. Uni-
laterally implementing a pay raise without bargaining with the
Union.”
Although this charge does not name the recipients of the
raises, it fully describes the gravamen of the allegations and
provided Respondent enough information to investigate these
matters and prepare a defense. Therefore, I conclude that the
charge’s failure to identify the specific employees affected does
not render it invalid.
Both Mike King’s November 2002 pay raise and Nate
Sloan’s September 6, 2002 pay raise occurred less than 6
months before the January 17, 2003 charge. Therefore, I con-
clude that these allegations are not time barred.
Likewise, Respondent did not give the raises to Wiggers and
Timmerman more than 6 months before the filing of the Janu-
ary 17, 2003 charge. Indeed, Respondent implemented these
wage increases after the Union filed this charge.
2. Certain employees not in bargaining unit
However, for another reason, I conclude that Respondent did
not violate the Act by increasing the wage rates earned by
Sloan, Timmerman and Wiggers. These employees were never
in the bargaining unit.
As discussed above, Sloan began work for Respondent about
June 2002 as a shop employee, a position outside the bargain-
ing unit. Management did not assign Sloan any work on a job-
site until August 2003, and this work involved removing a
VANGUARD FIRE & SECURITY SYSTEMS 1033
sprinkler system rather than installing one. Clearly, Sloan was
not performing any bargaining unit work in September 2002,
when Respondent granted the wage increase and was not in the
unit at that time.
Respondent hired Timmerman in March 2003 and assigned
him to work on “special hazards” systems, a job outside the
bargaining unit. Around August 2003, management assigned
Timmerman to work on the Jackson Products job, but removing
sprinkler systems rather than installing them. After that job,
Timmerman did receive some assignments installing sprinklers,
but I have concluded that these hours were too few and too
infrequent to create a community of interest with bargaining
unit employees. Therefore, I further conclude that Timmerman
was not a member of the bargaining unit at the time he received
the raise in September or October 2003.
For reasons discussed above, I also conclude that Sean Wig-
gers was not a member of the bargaining unit in September or
October 2003. Respondent has no duty to bargain with the
Union concerning the wage rates of employees outside the bar-
gaining unit. Therefore, changing the wage rates of Sloan,
Timmerman and Wiggers did not violate the Act.
3. Discretionary raises given to bargaining
unit employee
Mike King was a member of the bargaining unit when he re-
ceived the raise in about November 2002. Accordingly, I must
consider whether this raise constitutes an unlawful unilateral
change.
As discussed above, to establish a violation of Section
8(a)(5), the General Counsel must show that Respondent made
a material, substantial and significant change in the terms and
conditions of employment of bargaining unit members, and did
so without first notifying the exclusive collective-bargaining
representative of the contemplated changes and affording that
union the opportunity to bargain about them and their effects.
Additionally, the change must concern a mandatory subject of
bargaining.
Respondent has admitted that the pay raise in question con-
cerns a mandatory subject of bargaining, and I find that it con-
stitutes a material, substantial and significant changes in the
terms and conditions of employment. Moreover, at the hearing,
Respondent amended its answer to state, “Respondent admits
that by its conduct described in Paragraph 12 of the Amended
Complaint” it has been “failing and refusing to bargain collec-
tively with the exclusive collective bargaining representative of
the unit, in violation of Section 8(a)(1) and (5) of the Act.”
Respondent raised the 10(b) defense only with respect to
complaint paragraphs 12(b) and (c), and not (a). Even had
Respondent raised such a defense with respect to complaint
paragraph 12(a), that defense would fail. As discussed above,
Respondent implemented King’s November 2002 raise less
than 6 months before the Union filed the January 17, 2003
charge.
Considering Respondent’s admissions together with the re-
cord as a whole, I conclude that Respondent’s implementation
of King’s November 2002 wage increase constituted an unlaw-
ful unilateral change. I recommend that the Board find that
Respondent thereby violated Section 8(a)(5) and (1) of the Act.
D. Complaint Paragraph 13 (Discretionary Vacation
Accrual Rates)
Complaint paragraph 13 alleges that Respondent imple-
mented discretionary vacation accrual rates for Phillip Moss on
July 8, 2002, and for Jason Engle on July 22, 2002. Respon-
dent has admitted these allegations. However, in Respondent’s
answer to the original complaint, it raised the defense that the
“allegations concerning the starting wage and vacation time
granted to Phillip Moss . . . are barred by the limitation period
provided at Section 10(b) of the Act.”
1. Respondent’s 10(b) defense
July 8, 2002, when Respondent implemented the vacation
accrual rate for Moss, is more than 6 months before January 17,
2003, when the Union filed the initial unfair labor practice
charge. Therefore, I conclude that Section 10(b) bars litigation
of this allegation. However, Respondent implemented the va-
cation accrual policy for Engle on July 22, 2002, which is less
than 6 months before January 17, 2003, and Section 10(b) does
not bar this allegation.
2. Vacation accrual rate for employee Engle
In its answer, Respondent admitted the allegations in com-
plaint paragraph 15. In accordance with this admission, I find
that the vacation accrual rate is a mandatory subject of bargain-
ing.
Respondent’s admissions that it implemented a discretionary
vacation accrual rate for Engle and that this rate was a manda-
tory subject of bargaining leave one question unanswered: Was
the rate which Respondent set for Engle different from the va-
cation accrual rates of other employees? To answer that ques-
tion, I first must ascertain whether Respondent had an estab-
lished practice regarding the accrual of vacation. Then, I must
determine if Respondent followed that practice when it hired
Engle.
Respondent’s employee handbook states that during the first
year of service, employees will earn one-half day of vacation
per month, for a total of 6 days per year. It would be surprising
if Respondent published this accrual rate in the employee hand-
book but then disregarded it when setting the actual rates for
employees. Presumably, Respondent intended the information
in its employee handbook to be the rule, rather than the excep-
tion.
Other evidence supports a finding that Respondent typically
followed its published policy. Bargaining unit employee, Mike
King, credibly testified that he accrued vacation time at this
announced rate during his first year of employment. Another
bargaining unit employee, Derek Michael, gave similar testi-
mony, which I credit. Based on this testimony and the em-
ployee handbook, I conclude that Respondent had an estab-
lished practice of allowing new employees to accrue 6 days of
vacation during the first year of employment.
Did Respondent follow this practice when it hired Engle?
Union organizer James Tucker testified that a supervisor, Matt
Batchelor, told him that “Jason [Engle] and Phil [Moss] had got
vacation already and they have not even been here a year.”
According to Tucker, Batchelor said that he believed Engle was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1034
receiving “one or two weeks” of vacation. I credit this testi-
mony.
Based on a stipulation at hearing, I find that Batchelor is Re-
spondent’s supervisor and agent. Therefore, the statements
attributed to him by Tucker are not hearsay.
Moreover, Respondent’s chief financial officer, Timothy
Callahan, testified that he decided to give Engle and Moss 2
weeks of vacation per year because Engles received that much
from his previous employer. Crediting this testimony, I find
that when Engles began working for Respondent, he accrued
two weeks of vacation per year rather than the 6 days ordinarily
received by new employees. Further, I conclude that by start-
ing Engle at the higher vacation rate, Respondent made a uni-
lateral change in established terms and conditions of employ-
ment. I would reach a similar conclusion with respect to em-
ployee Moss, except that Section 10(b) bars litigation of that
allegation.
Based upon the testimony of union organizer James Tucker,
which I credit, I find that Respondent did not notify the Union
or provide it the opportunity to bargain before implementing
the vacation accrual rates it set for Moss and Engle.
Increasing the amount of vacation for first-year employees
from 6 days to 2 weeks certainly constitutes a material, substan-
tial and significant change in a term of employment which is a
mandatory subject of collective bargaining. Because Respon-
dent took this action without first notifying the Union and of-
fering it the opportunity to bargain, I conclude that Respondent
violated Section 8(a)(5) and (1) of the Act.
E. Complaint Paragraph 14 (Alleged Unilateral Changes
in Surveillance Camera System)
Complaint paragraph 14 alleges that since about May 2003,
Respondent has expanded and enhanced its system of surveil-
lance camera operation at its Grand Rapids facility. Respon-
dent denies this allegation.
On June 5, 2002, Respondent agreed to settle a previous un-
fair labor practice case. This settlement limited how Respon-
dent could use television security cameras on its premises:
Vanguard Fire & Supply Company and Local 669
agree with respect to surveillance cameras at the Grand
Rapids facility as follows:
1. The Company may maintain its surveillance cam-
era system as it existed as of June 4, 2002, except
as follows:
a. The camera in the Fab Shop and the one ad-
jacent to Tate Thomas’ office shall not op-
erate from 8:00 a.m. until 5:00 p.m. on
normal work days (Monday–Friday but not
holidays).
b. The two cameras in the Shop area (near the
Breakroom and the entrance to the Fab
Shop) shall not record from 8:00 a.m. to
5:00 p.m. on normal work days (Monday–
Friday but not holidays). These cameras,
however, may operate during these hours.
2. The parties may request bargaining on this topic at
any time.
This agreement establishes, in effect, the “status quo” and
any departure from it would constitute a change in terms and
conditions of employment. Respondent has admitted that the
surveillance cameras constitute a mandatory subject of bargain-
ing. It had a duty to notify and bargain with the Union before
making any change which affected this status quo in a material,
substantial and significant way.
The General Counsel alleges that Respondent made changes
in its surveillance camera system some time after this June 5,
2002 settlement. The complaint does not specify exactly what
changed. The General Counsel’s brief asserts that Respondent
made the following changes, but it is not entirely clear which of
them the Government considers violative: Respondent (1)
installed another camera; (2) replaced analog equipment with
digital; (3) updated its system to allow television images to be
viewed remotely, over the Internet; (4) used some kind of tech-
nology allowing images from 12 different cameras to be dis-
played at one time; and (5) operated the Fab Shop camera dur-
ing prohibited hours.
For clarity, before addressing whether Respondent made
such changes, I will focus on another document mentioned by
the General Counsel which might become a source of confu-
sion. During collective bargaining, Respondent and the Union
reached tentative agreement on a contractual provision stating
as follows:
Surveillance Cameras: The Company may maintain the sur-
veillance camera system pursuant to June 5, 2002 Settlement
Agreement. The Company shall not make changes that effect
[sic] the areas of surveillance or the time of surveillance
unless the Company first gives the Union notice of any pro-
posed changes and offers an opportunity to bargain provided;
1. The Company may make any changes to surveillance
of the outside of any of it’s [sic] facilities at any time
without any obligation to notify or bargain with the
union, and
2. The Company shall have no obligation to notify or
bargain with the Union over any changes to equip-
ment so long as the area and time of surveillance is
not effected [sic].
Negotiators for Respondent and the Union initialed this pro-
vision on August 21, 2002. However, Respondent and the Un-
ion had not completed their negotiations for a collective-
bargaining agreement when Respondent withdrew recognition
from the Union on August 15, 2003.
Customarily, when labor negotiators initial a particular con-
tract proposal during the course of bargaining, that action does
not make the provision, standing alone, a binding contract.
Rather, the negotiators only intend their initials to signify a
“tentative agreement” which removes the item from further
discussion (takes it “off the table”) at that time. The initialed
language will bind the parties only when they reach agreement
on a complete contract which includes that term.
The record in this case does not suggest that during negotia-
tions, the Respondent and Union intended to depart from this
well-established custom in collective bargaining. Therefore, I
do not consider their action on August 21, 2002, as an agree-
ment to modify, then and there, the terms of the June 5, 2002
VANGUARD FIRE & SECURITY SYSTEMS 1035
settlement agreement, which continued to define the status quo
with respect to security cameras.
To establish that the Respondent made a unilateral change in
this status quo, the General Counsel relies on the testimony of
Henry Kuiper, who had worked for Respondent as a fire alarm
technician before being laid off about October 17, 2003. Kui-
per testified, in part, as follows:
Q. Are you aware—or, when, if ever, did the Em-
ployer install surveillance cameras, at the Grand Rapids’
facility?
A. Well, there always was some surveillance cameras
there but I believe that, in the—late 2002 towards Winter,
that they upgraded their security system—their surveil-
lance system, I should say.
Kuiper explained that by “upgraded,” he meant that man-
agement replaced “the old VCR camera and stuff” with all
digital equipment mounted on a rack, and added two cameras,
one inside the building and one outside. The monitor was lo-
cated in the “service office,” and, Kuiper testified, on one occa-
sion he saw the monitor display an image of pipefitters working
in the Fab Shop. Kuiper could not give an exact date, but esti-
mated that this occasion was in about June 2003. Kuiper then
testified that he saw other cameras working between the hours
of 8 a.m. and 5 p.m., but he did not say in what month, or even
in what year, he made such observations.
The General Counsel also elicited from Kuiper some testi-
mony to support the allegation that Respondent had modified
its surveillance camera system to make it remotely accessible
over the Internet. However, Kuiper’s testimony falls short of
the necessary proof:
Q. Approximately, when did you find that out?
A. When I found out that it could be?
Q. Yes.
A. That was, in about July, 2003.
Q. Okay and how did you find out that it could be re-
motely viewed?
A. I found out, by talking to Jessica Profrock.
Q. Okay and who is Jessica Profrock?
A. She sits in the Service Department office.
Q. Okay and what do you recall being said?
A. I remember asking her, if these cameras could ever
be monitored, through the Internet, and she said that she
knew, at one time, they could but she was not sure, if it
still could be done.
The complaint does not allege Profrock to be a supervisor
and the statement attributed to her does not constitute an admis-
sion by Respondent. It is hearsay.
Profrock did not testify, but even assuming that Kuiper
quoted her correctly and even assuming further that the infor-
mation she provided Kuiper was accurate, it still does not prove
that Respondent “upgraded” its surveillance camera system to
make it accessible from remote locations. If anything,
Profrock’s words can be read to suggest the opposite: At one
time the system could be been accessed remotely but she
wasn’t sure that it presently had that capability.
Moreover, the phrase “at one time” is vague. It might refer
to a period before the June 5, 2002 settlement, but just as easily
it might refer to a time after the settlement.
Based on my observations of the witnesses, I do not credit
Kuiper’s testimony. Because of my doubts about this testi-
mony, I do not rely upon it at all in determining the facts re-
lated to complaint paragraph 14.
Respondent’s service manager, Ted Hembroff, also testified
about these matters. From Hembroff’s demeanor as a witness, I
conclude that his testimony is reliable and credit it.
Hembroff explained that Respondent sells security camera
systems as well as fire protection systems. There was an occa-
sion in the spring of 2003 when he installed a digital recording
system temporarily at Respondent’s facility as a learning exer-
cise. This system was more advanced than the system Respon-
dent uses to watch over its own property, and Hembroff wanted
to learn how to program the digital system before installing it
on the customer’s premises and explaining it to the customer’s
management. Hembroff testified that he briefly attached the
digital recording equipment to Respondent’s cameras:
[T]he only purpose for installing it was for a learning curve
for me so, when I got out to the customer I did not look like I
was learning for the first time. It was put in. It may have
been in for a day or two days for the individuals who were go-
ing out with me so I could give them training on it. It was
taken out and put back up normally. So that was the only
time a digital recorder was ever used.
Hembroff also testified that the same day Chief Financial Of-
ficer Callahan informed him of the June 5, 2002 settlement, he
disconnected the cameras which, under the settlement, could
not be operated during working hours:
I happened to have some programmable timers in the back,
pulled them off the shelf, hooked them up so three of the
cameras would automatically lose power at eight o’clock, be-
tween the hours set, and the fourth one I literally cut the video
feed from the camera before it went anywhere during those
hours.
Except for changing the timers because of daylight savings
time, Hembroff has not altered their settings and is unaware of
anyone else changing those settings. Based on Hembroff’s
demeanor as a witness, I have considerable confidence in the
trustworthiness of his testimony, which I credit.
As already discussed, I have rejected Kuiper’s testimony as
unreliable and do not find that he saw any prohibited images on
the monitor. It may be noted that Hembroff’s testimony in-
cludes an explanation of how Hembroff might have been mis-
taken about what he saw. Even after a camera is turned off, the
last image the camera “saw” remains frozen on the monitor.
Kuiper may have seen such a “freeze frame” and mistaken it for
a moving image, but whatever the reason, I do not find that
Kuiper witnessed any camera taking pictures prohibited by the
June 5, 2002 settlement agreement.
Hembroff’s testimony that he connected a digital recorder
briefly to Respondent’s security system—to learn how that
equipment operated before delivering it to a customer—does
not affect my finding that Respondent did not turn on any cam-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1036
era at prohibited times. Substituting a digital hard disk recorder
for an analog tape recorder would not change the fact that the
cameras were on automatic timers and therefore not activated.
The settlement agreement did not require all cameras to be shut
down, so the learning experience could still take place even
though certain cameras were not operating.
Even had Respondent permanently replaced its old analog
recorder with a digital hard disk recorder—which it did not—
this action would not have constituted a material, significant
and substantial change. After all, a recorder is a recorder, and
no credible evidence establishes that using a different kind of
recorder would have an impact on working conditions.
However, even were the substitution of a digital recorder for
an analog model considered to be material, substantial and
significant, it took place for such a brief period of time that the
change had de minimis impact on terms and conditions of em-
ployment.
In sum, no credible evidence establishes the allegations
raised by complaint paragraph 14. Therefore, I recommend that
the Board dismiss these allegations.
F. Complaint Paragraphs 15 and 16
Complaint paragraphs 15 and 16 plead legal conclusions.
Respondent has admitted the allegations in paragraph 15, that
the subjects set forth in paragraphs 10 through 14 relate to
wages, hours, and other terms and conditions of employment of
the unit and are mandatory subjects for the purpose of collec-
tive bargaining. I so find.
Complaint paragraph 16, which Respondent denies, alleges
that Respondent engaged in the conduct described in complaint
paragraphs 10 through 14 without first notifying the Union and
affording the Union the opportunity to bargain about the
changes and their effects. I have already addressed these alle-
gations above.
III. INFORMATION REQUEST ALLEGATIONS
A. Complaint Paragraph 17 (Information
Request Admitted)
Complaint paragraph 17 alleges, and Respondent admits, that
since about June 19, 2003, the Union has requested that Re-
spondent furnish it with certain information specified in a letter
attached to the complaint. Based on Respondent’s admission, I
so find. This information will be described more fully in con-
nection with complaint paragraphs 18 and 19.
B. Complaint Paragraph 18 (Relevance and Necessity
of Requested Information Admitted)
Complaint paragraph 18 alleged that certain specified infor-
mation (but not all information) requested in the Union’s June
19, 2003 letter is necessary for, and relevant to the Union’s
performance of its duties as the exclusive collective-bargaining
representative of the bargaining unit. Respondent has admitted
these allegations.
C. Complaint Paragraph 19 (Alleged Refusal to Provide
Information Denied)
Complaint paragraph 19 alleges that since on or about June
27, 2003, Respondent has failed and refused to furnish the Un-
ion with this information, Respondent denies this allegation.
1. Overview of the information requested
Complaint paragraph 18 does not describe the requested in-
formation in detail but instead refers to numbered paragraphs in
the Union’s June 19, 2003 letter. When complaint paragraph
19 is read together with the information request, it is clear that
the General Counsel is alleging that the information described
in the following portions of the Union’s June 19, 2003 letter is
relevant and necessary:
[1st series]
1. [W]hat jobs are going on now and what jobs have
been awarded, with their approximate start dates.
[2nd series]
1. A list of all employees who have been hired, show-
ing their race, national origin, sex, sexual prefer-
ence, age, disability and religion.
. . . .
3. A list of all employees who were promoted, trans-
ferred, disciplined or demoted showing their race,
national origin, sex, sexual preference, age, disabil-
ity or religion.
4. A list of all employees who were either denied pro-
motions or transfers showing their race, national
origin, sex, sexual preference, age, disability or re-
ligion.
5. Copies of all charges or complaints received from
any State or Federal administrative agency or any
court suit concerning discrimination or harassment
based upon race, national origin, sex, sexual pref-
erence, age, disability or religion. With respect to
any such complaint, charge or lawsuit, please pro-
vide not only a copy of the complaint, charge or
lawsuit, but a copy of any document showing the
resolution or conclusion of that litigation, com-
plaint or charge.
6. A copy of any affirmative action plan which is or
has been in existence during the last five years.
7. A copy of any contracts which have any equal em-
ployment clauses or guarantees, as well as any con-
tracts which have any affirmative action clauses or
guarantees.
8. Copies of any internal investigative reports with
respect to any complaints, charges or allegations
concerning discrimination or harassment based on
race, national origin, sex, sexual preference, age,
disability or religion.
. . . .
11. Copies of all sexual harassment, anti–discrimi-
nation or discrimination policies.
VANGUARD FIRE & SECURITY SYSTEMS 1037
2. Requested information about “sexual preference”
The Union requested, among other information, a “list of all
employees who have been hired, showing their race, national
origin, sex, sexual preference, age, disability and religion.”
(Emphasis added.). Presumably, by “sexual preference” the
Union meant sexual orientation, and, except when quoting the
information request directly, I will use the latter, more exact
term.
Clearly, information about the race and national origin of
bargaining unit members is presumptively relevant. Indeed, it
is not difficult for a union to establish the relevance of such
information even concerning employees outside the bargaining
unit. See, e.g., Frito-Lay, Inc., 333 NLRB 1296 (2001). Like-
wise, information about the gender of bargaining unit employ-
ees is presumptively relevant.
On the other hand, I am reluctant to conclude that an em-
ployer has any duty to furnish, or even collect, information
concerning the sexual orientations of its employees. Such a
conclusion would implicate serious privacy questions which
should be decided only after these issues had been fully liti-
gated.
However, Respondent’s answer admits that all information
alleged to be relevant and necessary is, in fact, relevant and
necessary. Technically, therefore, there is no issue before me
concerning the relevance of information about sexual orienta-
tion, and for the purposes of this case, I could simply assume
that to be the case.
Ordinarily, a judge should be reluctant to address an unraised
issue, but in this instance I am concerned that an inartfully
worded decision might lead to an unintended precedent. Re-
quests for information about the sexual orientations of employ-
ees (and to some extent, requests for information about their
religious affiliations) intrude on privacy so much that some
discussion appears warranted. First, however, I must determine
whether the admissions in Respondent’s answer preclude me
from examining the matter sua sponte.
Complaint paragraph 18, unlike complaint paragraph 17,
does not allege facts but instead pleads legal conclusions. Even
if all parties in a case agreed to a particular legal conclusion,
the Board still retains authority to interpret the Act and to apply
it to the facts of the case. For example, even if all parties in a
particular case stipulated that a certain individual was not a
statutory supervisor, the Board still would have the authority to
reach the opposite conclusion if the record established that the
person satisfied the 2(11) criteria.
Similarly, the General Counsel and Respondent cannot bind
the Board to the conclusion that certain information is relevant
and necessary if the facts do not support such a conclusion or if
the conclusion would be inconsistent with Board precedent or
policy. Therefore, the admission in Respondent’s answer does
not preclude me, or ultimately the Board, from considering the
issue: Is information concerning employees’ sexual practices
relevant to the Union’s representation function and necessary
for that purpose?
The Union does not limit this request to information about
bargaining unit employees. Clearly, such information concern-
ing individuals outside the bargaining unit is not presumptively
relevant and the Union has not demonstrated that such informa-
tion would either be relevant to its representation function or
necessary for that purpose.
Is such information about bargaining unit employees relevant
and necessary? If so, does the employee’s interest in privacy
and confidentiality outweigh the Union’s need for the informa-
tion. The following general principles will guide my analysis
of these issues:
(1) Information related directly to the wages,
hours, and other terms and conditions of
employment, such as pension and medical
benefits, of bargaining unit employees rep-
resented by a union is presumptively rele-
vant to the union’s role as collective–
bargaining representative and must be fur-
nished upon request. International Protec-
tive Services, Inc., 339 NLRB No. 75 [701]
(July 15, 2003).
(2) Where the requested information concerns
the wages. hours or working conditions of
employees within the bargaining unit cov-
ered by the agreement, this information is
presumptively relevant and the employer
has the burden of proving lack of relevance.
Ormet Aluminum Mill Product Corp., 335
NLRB No. 65 [788] (August 27, 2001).
(3) A broad, discovery–type standard applies in
determining relevance of information re-
quests. Chrysler Corporation, 331 NLRB
No. 174 [1324] (August 25, 2000), citing
NLRB v. Acme Industrial Co., 385 U.S.
432, 437 (1967); A-Plus Roofing, 295
NLRB 967, 970 (1989), enfd. 39 F.3d 1410
(9th Cir. 1994); Westside Community Men-
tal Health Center, 327 NLRB No. 125, slip
op. at 14 [661, 674] (1999).
(4) Where the relevance of requested informa-
tion has been established, an employer can
meet its burden of showing an adequate
reason for refusing to supply the informa-
tion by demonstrating a “legitimate and
substantial” concern for employee confi-
dentiality interests which might be com-
promised by disclosure. Ormet Aluminum
Mill Product Corp., above, citing Detroit
Edison v. NLRB, 440 U.S. 301, 315, 318–
320.
(5) When dealing with a union request for rele-
vant information that is asserted to be con-
fidential by the employer, the Board is re-
quired under Detroit Edison v. NLRB,
above, to balance a union’s need for the in-
formation against any “legitimate and sub-
stantial” confidentiality interests estab-
lished by the employer. Pennsylvania
Power Co., 301 NLRB 1104, 1105–1106
(1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1038
Applying these principles, I conclude that the information
sought is not presumptively relevant even with respect to em-
ployees in the bargaining unit. To enjoy a presumption of rele-
vance, the information sought not only must pertain to bargain-
ing unit employees but also must relate directly to the wages,
hours, and other terms and conditions of employment. Infor-
mation about sexual orientation does not relate directly to
wages, hours, or other terms and conditions of employment.
Similarly, an employee’s religious affiliation would not ap-
pear to be relevant to wages, hours, and working conditions in
most situations. Therefore, I conclude that neither sexual orien-
tation nor religious affiliation is presumptively relevant.
This conclusion does not rule out a finding that such infor-
mation is relevant, but it does place the burden on the General
Counsel to show the relevance. Arguably, there might be cir-
cumstances in which information about the sexual orientation
of employees did have some relevance to wages, hours, or other
conditions of employment. However, the record does not es-
tablish such circumstances in this case.
Absent a presumption of relevance, the Union bears the bur-
den of presenting evidence showing how the requested infor-
mation relates to the Union’s performance of its representation
duties. In its posthearing brief, the Union states, in part:
Local 669 explained to Vanguard that it needed the EEO in-
formation to, inter alia, ensure that the Vanguard would meet
the affirmative action requirements that federal law imposed
on Local 669’s Apprenticeship program, given the Parties’
tentative agreement to use Local 669’s program.
In a footnote, the Union explained that the United States De-
partment of Labor, Bureau of Apprenticeship Training, requires
all apprenticeship programs to comply with the equal employ-
ment opportunity rules set forth in 29 CFR § 30.
However, the cited equal employment opportunity rules do
not proscribe discrimination on the basis of sexual orientation.
Therefore, the Union’s argument is not persuasive, at least with
respect to such information.
Although the Union argues that it needs information about
sexual orientation because of its apprenticeship program, that
argument falls apart on closer examination. The General Coun-
sel introduced into evidence the affirmative action plan adopted
by the Union’s joint apprenticeship and training committee.
That document pledges that the “recruitment, selection, em-
ployment, and training of apprentices during their apprentice-
ship shall be without discrimination because of race, color,
religion, national origin, or sex.” However, the affirmative
action plan makes no mention of sexual orientation.
The General Counsel also introduced into evidence the stan-
dards which the Union’s apprenticeship program submitted to
the United States Department of Labor. These standards pro-
hibit discrimination because of “race, color, religion, national
origin or sex.” The standards make no mention of sexual orien-
tation.
The Union cannot credibly claim that its needs information
about sexual orientation so that it may comply with Federal
apprenticeship regulations because, as discussed above, the
regulations do not address sexual orientation. Therefore, I must
reject this argument.
It may also be noted that an apprenticeship program operated
by a joint training committee stands alone as a separate entity
apart from the employers which may send individuals for train-
ing. The apprenticeship plan’s relationship to the apprentices is
distinct from Respondent’s relationship to its employees and is
also distinct from the Union’s relationship to the members of
the bargaining unit.
Therefore, it is not entirely clear whether the Union has re-
quested the sexual orientation information to perform the repre-
sentation duties it has assumed as the 9(a) representative, or
whether it has sought this information to benefit a third party.
The Union did claim that it needed the requested information
for reasons other than administration of the apprenticeship pro-
gram. However, the Union has not made those purposes clear.
During his testimony, the Union’s lead negotiator, Paul Long,
explained why the Union sought the information:
Quite honestly, it was quite a lot of reasons. We needed it for
the apprenticeship program. In my experience with this com-
pany, I’ve met with employees on various occasions and
there’s always concerns that the employees have about what’s
happening in negotiations, what the company’s doing, getting
away with. It seems to be the perception—fiddle—no—the
employees—Let me restate it. The employees believe that the
company breaks every law there is.
This explanation falls short of explaining how the Union
wishes to use the requested information in collective bargain-
ing, contract administration, grievance processing, or some
other representation function. Long did not identify any con-
templated use for the requested information about sexual orien-
tation. Therefore, I conclude that the Union has not established
that this information is relevant and necessary.
However, even were I to conclude that this information is
relevant and necessary, I believe that considerations of personal
privacy and confidentiality outweigh the asserted need. A re-
quest for information about sexual orientation raises issues
different from those inherent in requests for information about
race, gender and age. Generally, these latter attributes are out-
wardly visible and asking about them entails far less invasion
of personal privacy than inquiries about sexual practices.
In the present case, I conclude that the Union has not shown
a need for information about sexual orientation which would
outweigh the employees’ interest in keeping such information
confidential. Therefore, based on the specific facts of this case,
I further conclude that Respondent had no duty to disclose such
information.
Should the Board disagree, further analysis of the facts will
be necessary to determine whether Respondent satisfied its duty
to provide the requested information. Here is that analysis.
Respondent’s chief financial officer, Callahan, testified that
Respondent does not “track” such information “nor do we ask it
anyways.” My observations of the witnesses convince me that
Callahan testified reliably about the matter to the best of his
recollection. Crediting his testimony, I find that Respondent
did not collect or keep information concerning the sexual orien-
tations of its employees.
In certain circumstances, an employer may have a duty to
obtain—or at least try to obtain—requested information not in
VANGUARD FIRE & SECURITY SYSTEMS 1039
its possession. See, e.g., Garcia Trucking Service, 342 NLRB
764 fn. 1 (2004) (Board ordered the respondent to “make a
reasonable effort to secure any unavailable information.”). In
this case, however, I conclude that Respondent did not have a
duty to collect information about employees’ sexual practices.
Callahan testified that he explained to Long that “we don’t
know” about the sexual orientations, religions, or disabilities of
employees. According to Callahan, Long responded, “Well, we
probably don’t need that anyways.”
Long emphatically denied telling Callahan that “we probably
don’t need” the requested information. However, based on my
observations of the witnesses, and for the reasons discussed
below, I do not credit Long’s testimony, which was vague and
tended to ramble.
At times, Long sounded a bit too dramatic. This theatrical
quality seemed strangely out of keeping with the vagueness of
his testimony. Although it isn’t uncommon for one witness to
be overly emphatic and for another to be uderly specific, sel-
dom will a single witness be both. The combination of vague-
ness and certitude produced a negative synergy which under-
mined Long’s credibility.
On the other hand, as discussed above, I conclude that Calli-
han’s testimony about this matter is reliable. Based on that
testimony, I find that Respondent did not possess information
concerning the sexual orientations and religious affiliations of
its employees. As the Board has stated, “Respondent cannot be
expected to provide information that it does not have.” Kath-
leen’s Bakeshop, LLC, 337 NLRB 1081, 1082 (2002). Accord-
ingly, I conclude that Respondent did not violate the Act by
failing to provide such information.
Moreover, under the circumstances of this case, I conclude
that Respondent did not have the duty to try to obtain such
information.
Crediting Callahan, I find that Long did say, “[W]e probably
don’t need that anyway.” Those words reasonably would lead
Respondent to believe that it would not be necessary to take
further action to obtain the information. Therefore, I do not
find that Respondent had a duty to ask its employees the highly
personal questions that obtaining this information would re-
quire.
To summarize, I have concluded (1) that the requested in-
formation about employees’ sexual orientations was not rele-
vant to and necessary for the Union to perform its representa-
tion duties; (2) that even assuming such information was rele-
vant and necessary, considerations of personal privacy and
confidentiality outweighed the Union’s need for this informa-
tion; (3) Respondent did not possess such information; and (4)
Respondent had no duty to obtain it.
3. Other information
a. Information on jobs, present, and future
Item 1, first series, asks Respondent to “advise what jobs are
going on now and what jobs have been awarded, with their
approximate start dates.”
Three witnesses, Callahan, Long, and Tucker, provided tes-
timony concerning this allegation. For the reasons discussed
above, I do not have confidence in Long’s testimony and do not
rely upon it. Based upon my observations of the witnesses, I
credit Callahan’s testimony rather than Tucker’s to the extent
that their accounts conflict.
Callahan credibly testified that he gave the Union informa-
tion about the jobs then underway. Callahan inadvertently
failed to mention one of these jobs, but Tucker reminded him.
On cross-examination, the General Counsel sought to im-
peach this testimony by having Callahan examine a position
statement which Respondent submitted during the Region’s
investigation of the unfair labor practice charge. The General
Counsel does not contend that Callahan prepared this docu-
ment. After reading a paragraph of this letter, Callahan ac-
knowledged that it “does not state that any information was
provided.”
For several reasons, this attempt to impeach Callahan’s tes-
timony was not effective. First, it should be noted that this
position letter was not a prior statement of the witness within
the meaning of Rule 613 of the Federal Rules of Evidence. The
record does not establish either that Callahan signed the docu-
ment or participated in its preparation.
Second, even if considered an admission of a party opponent,
the position statement does not rule out the possibility that Cal-
lahan provided the information to the Union orally, as he testi-
fied. Callahan testified that this position letter “does not state
that any information was provided,” but that could simply mean
that the position letter was silent on this point. A failure to
state that information was provided falls short of being a state-
ment that information was not provided.
Third, in cross-examining Callahan, the General Counsel di-
rected the witness’s attention to a specific paragraph of the
position letter and told him to read the paragraph to himself.
The General Counsel then asked Callahan, “[D]oes it indicate
anywhere in that paragraph that any information was turned
over?” (Emphasis added.) Callahan agreed that it did not.
However, little can be inferred from the fact that one particular
paragraph of a position letter failed to indicate that Respondent
furnished the Union with requested information.
Fourth, when the General Counsel asked Callahan to read
this paragraph, he stated that “it deals with Item No. 9 of the
June 19th letter, a list of jobs.” (Emphasis added.) However,
Callahan did not testify that he gave the Union a written list.
Instead, he testified that he furnished the information orally, in
a discussion at the bargaining table.
Callahan agreed with the General Counsel that Respondent’s
position letter does state that, at the June 27, 2003 bargaining
session, Respondent “again told the Union that they would not
provide that information because they didn’t believe it was
relative to the Union’s duty of collective bargaining.” (Empha-
sis added.) However, it is unclear what the General Counsel
meant by “that information.” Was the General Counsel refer-
ring to information about all jobs, both present and future, or
only to jobs that had been awarded but not yet started? From
the present record, there is no way to be sure.
In sum, the position letter does not impeach Callahan’s tes-
timony that he told the Union about the jobs then underway but
refused to provide information about future projects. Specifi-
cally, when questioned by Respondent’s counsel, Callahan
testified, in part, as follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1040
Q. Did you or I provide the Union information about
what jobs had been awarded and their approximate start
date?
A. No, we didn’t.
Q. And was there any discussion about that?
A. Yes, there was.
Q. And what was that discussion?
A. You had told Paul Long that this wasn’t relevant to
the purposes of bargaining.
Q. Okay, did I say anything else?
A. That we were not going to provide it, nor had we in
the past when they have asked for it.
Based on this admission, and other portions of Callahan’s
testimony, I find that Respondent did not furnish the Union
with the requested information about awarded jobs which were
not yet underway. It appears that Respondent withheld this
information because of concerns that the Union would picket
the new jobsites.
In its answer, Respondent admitted that the information de-
scribed in complaint paragraph 18—which included informa-
tion about jobs Respondent had been awarded—was necessary
for and relevant to the Union’s performance of its duties as
exclusive representative. Relying on Respondent’s admission, I
have concluded that this information is indeed necessary and
relevant, and do not consider that issue further.
In view of Respondent’s admission, its defense does not rest
on a challenge to the relevance and necessity of the informa-
tion, but rather concerns its fear that the Union would use this
information to set up pickets at the contemplated jobsites. Re-
spondent contends that this potential for misuse justified the
Respondent’s refusal to furnish it the information to the Union.
Organizer Tucker testified that the Union had picketed some
of Respondent’s jobsites, but denied that the Union sought
information about future jobsites so that it could dispatch pick-
ets there. Rather, Tucker stated, the Union wanted the jobsite
information so that it could contact the employees.
The record does not reflect where or how often the Union
picketed and there is no evidence that the Union’s picketing of
Respondent’s jobsites ever violated Section 8(b)(4) or any other
provision of the Act. Respondent has offered no evidence that
it held any belief—whether well—founded or not—that the
Union would use information about future jobsites to plan
unlawful activity at those sites.
If Respondent argues that it feared the Union would use the
requested jobsite information to plan lawful picketing, its ar-
gument must fail. When a union engages in lawful primary
picketing, it acts within the scope of its duties as the exclusive
bargaining representative. Moreover, picketing is a long-
established Section 7 right. An employer cannot justify with-
holding requested information by asserting that the union will
use it to engage in protected activity.
Respondent admits the relevance of the requested informa-
tion and has presented no sufficient justification for withhold-
ing in. Therefore, I recommend that the Board find that Re-
spondent violated Section 8(a)(5) and (1).
b. List of employees showing EEO data
Item 1, second series, seeks a “list of all employees who
have been hired, showing their race, national origin, sex, sexual
preference, age, disability and religion.” For the reasons dis-
cussed above, I do not find that information regarding sexual
orientation relevant to the performance of the Union’s duties or
necessary for that purpose. However, I conclude that the re-
mainder of the information to be both relevant and necessary.
See Hertz Corp., 319 NLRB 597 (1995).
The Union’s posthearing brief asserts that Respondent never
provided the requested information and cites portions of Long’s
testimony to support such a finding. However, I do not credit
Long’s testimony, which was vague and sometimes rambled.
As stated above, my observations of the demeanor of Timo-
thy Callahan, the Respondent’s chief financial officer, lead me
to credit his testimony. Callahan recalled telling Long, “We
basically know they are all white males or white guys—I said
‘white guys,’ not males, but anyway, and then we—we didn’t
know their sexual preference or any of those other things, with
disability or religion, and Paul said, ‘Well, we probably don’t
need that anyway.’”
The response, that all the bargaining unit members were
“white guys,” provided the Union with information concerning
the race and gender of the relevant employees. Respondent did
not specifically identify the national origin of the employees.
However, Long did not press the matter.
Under some circumstances, an employer may have an obli-
gation to obtain requested information not in its possession.
Even assuming for the purpose of analysis that Respondent
would have been obligated to obtain and provide more specific
data, had Long asked, Long did not ask. To the contrary, his
comment that “we probably don’t need that anyway” suggests
that the Union was satisfied with the information which Re-
spondent already had provided. See, e.g., AT&T Corp., 337
NLRB 689, 691 (2002) (after telephone conversation with un-
ion representative, the division manager “could have reasona-
bly concluded that [the union representative] was satisfied with
the information provided”).
In these circumstances, I recommend that the Board dismiss
this allegation.
c. List of employees denied transfers or promotions
In item 4, the Union requested a “list of all employees who
were either denied promotions or transfers showing their race,
national origin, sex, sexual preference, age, disability or relig-
ion.”
During bargaining, Callahan told Long that Respondent did
not have the requested information. According to Callahan,
whom I credit, Long again replied, “[W]e probably don’t need
that anyway.”
Long’s use of the qualifier “probably” communicated some
uncertainty about the matter. However, the record does not
establish that the Union later notified Respondent that it did
need the information.
The Union’s silence, after telling Respondent, “[W]e proba-
bly don’t need that anyway,” reasonably conveys the message
that the Union was satisfied with Respondent’s representation
VANGUARD FIRE & SECURITY SYSTEMS 1041
that it did not have the requested information. Therefore, I
recommend that the Board dismiss this allegation.
d. Copies of charges and complaints
In item 5, the Union sought copies “of all charges or com-
plaints received from any State or Federal administrative
agency or any court suit concerning discrimination or harass-
ment based upon race, national origin, sex, sexual preference,
age, disability or religion.”
Callahan testified that no such charges or complaints had
been filed against Respondent. He further testified: “We told
them we didn’t have any—we didn’t have anything.”
For two reasons, I conclude that there were no such charges
or complaints against Respondent. First, for the reasons dis-
cussed above, I found Callahan to be a credible witness who
gave reliable testimony.
Second, no evidence contradicts his testimony that there had
been no EEO charges or complaints against Respondent. Pre-
sumably, it would not have been difficult for either the General
Counsel or the Union to obtain copies of such records—if they
existed—and place them in evidence. However, neither the
General Counsel nor the Union offered any such evidence.
Respondent cannot furnish the Union with documents which
do not exist. Therefore, I recommend that the Board dismiss
this allegation.
e. Affirmative action plan(s)
In item 6 of the information request, the Union sought a
“copy of any affirmative action plan which is or has been in
existence during the last five years.” Callahan credibly testified
that no such documents existed.
Respondent did not have a duty to furnish the Union non-
existent documents. Kathleen’s Bakeshop, LLC, 337 NLRB
1081, 1082 (2002) (“The Respondent cannot be expected to
provide information that it does not have.”). Therefore, I rec-
ommend that the Board dismiss this allegation.
f. Contracts with EEO clauses
Item 7 of the Union’s information request asked for a “copy
of any contracts which have any equal employment clauses or
guarantees, as well as any contracts which have any affirmative
action clauses or guarantees.” Callahan testified that Respon-
dent did not have any contracts with such clauses. I credit that
testimony.
The record indicates that in all instances in which Respon-
dent did not possess documents requested by the Union, it in-
formed union representatives of this fact. Therefore, Respon-
dent has satisfied its duty under the law. I recommend that the
Board dismiss this allegation.
g. Internal investigative reports1
Item 8 of the Union’s information request sought copies “of
any internal investigative reports with respect to any com-
plaints, charges or allegations concerning discrimination or
harassment based on race, national origin, sex, sexual prefer-
ence, age, disability or religion.”
Callahan credibly testified that there were no such reports.
Therefore, I conclude that Respondent did not refuse or fail to
furnish the Union with such information, which did not exist,
and recommend that the Board dismiss this allegation.
h. EEO—1 reports
In item 10 of its June 19, 2003 information request, the Un-
ion sought copies “of all EEO—1 reports.” Callahan testified
that he told the Union’s lead negotiator, Paul Long, that “I have
never heard of an EEO—1 report.” Callahan made this state-
ment to Long at the June 27, 2003 bargaining session.
Crediting Callahan’s testimony, I conclude that he did not
know what an EEO—1 form was, and that Respondent did not
keep such documents. Respondent’s failure to maintain such
records may implicate some statute other than the Act. How-
ever, the complaint does not ask me to decide whether or not
Respondent was in compliance with Title VII of the Civil
Rights Act of 1964 or any other law pertaining to discrimina-
tion on the basis of race, national origin, sex, religion, or age.
Respondent’s failure to fill out EEO—1 forms does not con-
stitute a violation of the Act. Because Respondent did not have
such documents, it could not furnish copies to the Union, and
its failure to do so does not constitute a refusal to bargain in
good faith.
It is important to distinguish between a failure to furnish the
EEO—1 forms, and a failure to provide the information appear-
ing on such forms. In other parts of the information request,
the Union asked essentially for the same information that would
appear on an EEO—1 form and Respondent provided that in-
formation, informing the Union that the employees were all
“white guys.”
The Union has advanced no particular reason why it would
need actual EEO—1 forms which, in this instance, do not exist.
Therefore, I conclude that Respondent, by furnishing the in-
formation orally, satisfied its duty to provide the requested
information. See AT&T Corp., supra, 337 NLRB at 691.

1 For clarity, it may be noted that item 9 of the Union’s June 19,
2003 information request sought copies of internal policies and proce-
dures concerning affirmative action “or discrimination or harassment”
with respect to race, national origin, sex, sexual preference, age, dis-
ability or religion.” However, the complaint does not allege that this
information is relevant to the Union’s duties as the exclusive represen-
tative or necessary for that purpose.
According to Callahan, whom I credit, Respondent informed the Un-
ion that any such policies were included in the employee handbook.
Therefore, were I to reach this issue, I would conclude that Respondent
did not withhold from the Union any existing materials sought in item 9
of its information request.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1042
IV. ALLEGATIONS PERTAINING TO NEGOTIATIONS
Complaint Paragraph 20 (Conditioning Further Bargaining
Upon Union’s Submission of an “Agenda”)
Complaint paragraph 20 alleges that on about July 16 and
August 12, 2003, Respondent, by letters addressed to the
Charging Party from its legal counsel, conditioned meeting
upon advance written submission by the Charging Party of a
detailed agenda and proposals. Based on the admission in Re-
spondent’s answer, I find that the General Counsel has proven
that Respondent engaged in this conduct.
Complaint paragraph 22 alleges that this conduct violated
Section 8(a)(5) and (1) of the Act. Respondent has denied this
conclusion. In determining the lawfulness of Respondent’s
actions, it is helpful to put its July 16 and August 12, 2003 let-
ters in context.
The Union won the representation election in July 2001 and
began negotiating with Respondent around October 2001. Ini-
tially, the Union rejected a number of Respondent’s proposals.
However, after bargaining for more than 1-1/2 years without
reaching agreement, the Union decided it should reconsider
those previously unacceptable proposals.
Union organizer James Tucker sent a July 11, 2003 letter to
Respondent’s attorney, Timothy J. Ryan. It stated, in part, as
follows:
After many months of bargaining, we realize that you
have made some proposals which were unacceptable to the
Union, but which now may be acceptable to us. Although
we still dislike your proposals, we now indicate that we
are willing to accept many of them in principle. This
means that there is not an impasse. However, before we
finally accept these proposals, we need to do several
things.
First, we need to work out all the details of your pro-
posals. Since we haven’t indicated before our willingness
to accept them in principle, we haven’t discussed the de-
tails of how they will work, their implementation, relation-
ship to other sections of the contract and so on. We need
to get to that task immediately.
Second, we need to work out the remainder of the con-
tract in all of its detail. This means we have to talk about
the rest of the contract and work out those sections and is-
sues.
Third, we have some other issues which we have not
had the chance to discuss. Some of these relate to and are
caused by our willingness to accept some of your propos-
als, at least in principle. Others are matters which we want
to raise independently. We will be raising these issues in
the near future.
Tucker’s letter went on to list eight matters the Union wished
to discuss with Respondent. These included job descriptions
for bargaining unit positions, Respondent’s attendance policy,
work rules, guidelines for discipline, and Respondent’s 401(k)
plan.
Respondent’s attorney, Ryan, replied by the July 16, 2003
letter referred to in complaint paragraph 20. This letter stated,
in part:
As you know your union has been the certified repre-
sentative of a bargaining unit composed of certain Van-
guard employees for approximately two years. During
that period we have been regularly meeting and negotiat-
ing towards a collective bargaining agreement. Through
those negotiations we have reached tentative agreements
on 29 separate articles. At our last meeting on June 27,
2003 we provided you a comprehensive proposal which
included all of the tentative agreements and proposals on
five open items.
In your July 11 letter you have indicated that you are
willing to accept our proposals and [sic] principle. I’m not
sure what you mean by that.
It appears to me that your letter is evidence of bad
faith. Your letter demonstrates the union’s intention to
avoid agreement by insisting and engaging in endless and
redundant discussions. Vanguard is not willing to engage
in this process.
However, Vanguard is willing to make one more at-
tempt to meet with you and once again fully and com-
pletely answer all questions you have and engage in any
discussion you deem necessary in order for you to either
accept or reject our proposal. However, for that meeting
to be productive, and put an end to the “discussion” so that
we can get our contract finalized we will insist that you
provide a detailed agenda which will set forth all of the
following:
1. Each and every detail of our proposals which you
believe needs to be “worked out.”
2. You claim that there is some “remainder of the con-
tract which we need to work out.” On page 2 of your let-
ter you itemize eight new proposals you intend to make.
Again, I believe raising new proposals at this late stage is
evidence of bad faith bargaining. However, if you really
intend to raise new issues, please include the specific pro-
posals with your agenda.
3. You state that there are “some other issues which
[you] have not had a chance to discuss.” The agenda
should include a detailed listing of every other issue that
you would like to discuss.
4. You also indicate that you think you need more in-
formation. Please provide us a written request for the
items and information you think you need.
So that we may be fully prepared to engage in discus-
sion on every single subject you wish to discuss at the next
meeting we will insist on receiving this agenda at least two
weeks in advance of that meeting. Thus, if we have not
received a detailed agenda and the information requests on
or before August 5, 2003, we will cancel the August 19,
2003 meeting and we will not schedule another meeting
until we have received these items.
Union organizer Tucker replied with a 4-page letter which
discussed various aspects of the Respondent’s last proposal and
sought clarification of some specific points. The letter also
included an agenda describing what the Union wished to ad-
dress at the next negotiating session.
VANGUARD FIRE & SECURITY SYSTEMS 1043
Respondent’s attorney Ryan replied by letter dated August
12, 2003, which is the other letter referred to in complaint para-
graph 20. The concluding paragraph of Ryan’s letter states:
In my July 16 letter I made it clear that unless I re-
ceived a detailed agenda comprised of the four points
specified in my letter, we would not be meeting with you
on August 19. You have not provided the detailed agenda
that I requested. Accordingly, we will not be meeting with
you on August 19. We remain willing to meet with you
two weeks after we receive an agenda which includes all
of the points specified in my July 16 letter.
To summarize, Respondent’s July 16, 2003 letter demanded
that the Union provide an agenda for the next meeting and
threatened to cancel that meeting unless the Union provided
this agenda some 14 days in advance. The Union replied with a
4-page letter which discussed Respondent’s proposals and in-
cluded an agenda for the next meeting. In effect, Respondent
rebuffed the proffered agenda as not good enough and canceled
the next bargaining session.
Section 8(d) of the Act defines the duty to bargain collec-
tively as “the performance of the mutual obligation of the em-
ployer and the representative of the employees to meet at rea-
sonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the
negotiation of an agreement or any question arising there-
under.” 29 U.S.C. § 158(d).
Plainly and simply, the law imposes on an employer and a
union the duty to meet at reasonable times. Period. Neither an
employer nor a union can wiggle out of this duty by insisting
on preconditions; legal duties don’t work like that.
For example, a citizen cannot condition his payment of in-
come taxes on the Internal Revenue Service designing a more
understandable form 1040; someone summoned to jury duty
cannot condition attendance on the courtroom chairs having
blue cushions, and someone drafted into the army cannot refuse
unless he receives a particular type of rifle. Likewise, a party
with a duty to bargain collectively cannot lawfully avoid that
duty by dreaming up obstacles for the other side to surmount
before reaching the meeting place.
To be sure, the duty to bargain collectively does afford the
parties some flexibility. The Act does not mandate that an
employer and union meet at any specified times, but only re-
quires that they meet at reasonable times. In the present case,
however, Respondent refused to meet at any time unless the
Union submitted an agenda, and not just any agenda but some
document that met Respondent’s unilaterally imposed stan-
dards.
Respondent contends that the Union had engaged in stalling
tactics and may not have been interested in reaching an agree-
ment. According to Respondent, the Union’s conduct at the
negotiating table was inconsistent with good-faith bargaining
and justified Respondent’s setting preconditions. This argu-
ment must be rejected for three reasons.
First, the record does not establish that the Union prolonged
the negotiations or bargained in bad faith. The record supports
the opposite conclusion. Although at first, the Union found
some of Respondent’s proposals to be unacceptable, its July 11,
2003 letter signaled that it had reconsidered and was ready to
make concessions.
Second, Respondent’s July 16, 2003 reply suggests that Re-
spondent did not impose the agenda requirement to facilitate
bargaining but rather to pressure the Union to accept Respon-
dent’s proposal without change. Thus, the letter states in part:
. . . Vanguard is willing to make one more attempt to meet
with you and once again fully and completely answer all
questions you have and engage in any discussion you deem
necessary in order for you to either accept or reject our pro-
posal. [Emphasis added.]
Those words do not indicate any willingness to consider the
Union’s proposals. To the contrary, they suggest that Respon-
dent wanted to limit further bargaining both as to duration
(“one more attempt”) and as to the subjects to be discussed (“to
accept or reject our proposal”). Moreover, to enforce these
unilaterally imposed restrictions, it was insisting upon the Un-
ion submitting an agenda.
If Respondent sincerely had believed that some kind of writ-
ten agenda would make the next bargaining session more pro-
ductive, it could have drafted one and proposed that the parties
follow it. But instead of suggesting the usefulness of an agenda
and providing a sample agenda for discussion, Respondent
delivered an ultimatum. Thus, its action hardly was consistent
with its professed desire to make the bargaining more produc-
tive.
Third, the merits of an agenda are irrelevant. Even assuming
for analysis that an agenda would benefit the negotiating proc-
ess, Respondent had no right to insist upon it as a precondition
to bargaining. See, e.g., Riverside Cement Co., 305 NLRB 815
(1991) (employer unlawfully insisted on the presence of a Fed-
eral mediator as a precondition to bargaining).
Stated another way, a proposal that would require one party
to submit an agenda before a negotiating session is a nonman-
datory subject of bargaining. One party may not insist to im-
passe that the other side agree to a proposal concerning a non-
mandatory subject. Similarly, a party may not condition further
negotiating sessions on the other party’s agreement to a pro-
posal concerning a permissive (but not mandatory) subject of
bargaining. Tennessee Construction Co., 308 NLRB 763
(1992); Caribe Staple Co., 313 NLRB 877 (1994); Timkin Co.,
301 NLRB 610 (1991).
Respondent has admitted engaging in the conduct alleged in
complaint paragraph 20. For the reasons discussed above, I
recommend that the Board find that Respondent thereby vio-
lated Section 8(a)(5) and (1) of the Act.
V. WITHDRAWAL OF RECOGNITION
Complaint Paragraphs 21(a), (b), and (c)
Complaint paragraph 21(a) alleges that on or about October
15, 2003, Respondent, by a letter addressed to the Charging
Party from its legal counsel, withdrew recognition from the
Charging Party as the exclusive collective-bargaining represen-
tative of the unit. Respondent has admitted this allegation and I
so find.
Complaint paragraph 21(b) alleges that Respondent engaged
in this conduct (withdrawal of recognition) on the basis of an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1044
antiunion petition signed by fewer than a majority of employees
in the unit. Respondent has denied this allegation.
The record establishes that Respondent did base its with-
drawal of recognition on a petition signed by some of its em-
ployees, so the issues raised by complaint paragraph 21(b) may
be resolved by answering these questions: (A) How many of
the petition signers were bargaining unit employees at the time
Respondent withdrew recognition? (B) How many employees
were in the bargaining unit when Respondent withdrew recog-
nition? (C) Does the answer to A divided by the answer to B
exceed one-half?
To answer question A, we must compare the names of the
employees who signed the petition with the names of the em-
ployees in the bargaining unit.
The petition is in evidence as Respondent’s Exhibit 42. Af-
ter the caption “We Don’t Want 669 Representation” it bears
the following eight signatures: Sean Wiggers, Evan
Timmerman, Jeff McDuffie, Nate Sloan, Austin Aamodt, Derek
Michael, Marty Shields, and Lon Staples.
For reasons discussed above under the heading “Complaint
Paragraph 9 (Union’s 9(a) Status),” I have concluded that on
the date Respondent withdrew recognition, the bargaining unit
consisted of the following 11 employees: Jason Engle, Kevin
Hanes, Mike King, Brandon Lewis, Aaron Maxwell, Jeff
McDuffie, Derek Michael, Phil Moss, Marty Shields, Lou Sta-
ples, and Greg Zittel.
Therefore, I must disregard the signatures of the following
petition signers, because they were not members of the bargain-
ing unit when Respondent withdrew recognition: Sean Wig-
gers, Evan Timmerman, Nate Sloan, and Austin Aamodt. That
leaves the following signers, who were bargaining unit employ-
ees: Jeff McDuffie, Derek Michael, Marty Shields, and Lon
Staples.
In sum, only 4 of the 11 signers were members of the bar-
gaining unit when Respondent withdrew recognition, and that
falls short of a majority. Therefore, I conclude that the Gov-
ernment has proven the allegations in complaint paragraph
21(b).
Complaint paragraph 21(c) alleges that Respondent with-
drew recognition from the Union on the basis of a petition that
was tainted by Respondent’s unremedied unfair labor practices.
As the Board stated in Wire Products Mfg. Corp., 326 NLRB
625, 627 (1998), “it is well established that an employer cannot
rely on any expression of disaffection by its employees which
is attributable to its own unfair labor practices directed at un-
dermining support for the union.”
The Government bears the burden of establishing that the
employee disaffection is, in fact, attributable to the unfair labor
practices. However, to carry this burden, the General Counsel
does not have to call employees to testify, in effect, “[Y]es, I
changed my mind about the union because of.” Instead, the
Board, applying an objective standard, determines what effect
the specific unfair labor practices reasonably would have on
employees. See AT Systems West, Inc., 341 NLRB 7, 10 (2004)
(“The Board has held that it is the objective evidence of the
commission of unfair labor practices that has the tendency to
undermine the Union, and not the subjective state of mind of
the employees, that is the relevant inquiry in this regard.”). See
also Samaritan Medical Center, 319 NLRB 392, 396 (1995).
In deciding whether a causal relationship exists between the
unfair labor practices and a union’s loss of support, the Board
considers several evidentiary factors: (1) the length of time
between the unfair labor practices and the withdrawal of recog-
nition; (2) the nature of the violation, including the possibility
of a detrimental or lasting effect on employees; (3) the ten-
dency of the violation to cause employee disaffection; and (4)
the effect of the unlawful conduct on employees’ morale, or-
ganizational activities, and membership in the union. AT Sys-
tems West, Inc., supra; Wire Products Mfg. Corp., supra, 326
NLRB at 627 fn. 12, citing Master Slack Corp., 271 NLRB 78,
84 (1984).
No date appears on the “We Don’t Want 669 Representa-
tion” petition. However, Sean Wiggers testified that he circu-
lated it in September or October 2003. Crediting this testi-
mony, I conclude that no person signed the petition before Sep-
tember 2003.
Respondent and the Union had scheduled a bargaining ses-
sion for August 19, 2003. Respondent unlawfully had insisted
that the Union submit an agenda as a precondition to meeting.
Although the Union submitted such an agenda, Respondent
nonetheless canceled the bargaining session. It notified the
Union of the cancellation in a letter dated August 12, 2003.
Thus, Respondent had announced its refusal to meet with the
Union almost 3 weeks before September 1, the earliest date on
which any employee may have signed the petition. Consider-
ing that the bargaining unit had only 11 employees, it would
seem very likely that by September 1, every bargaining unit
member would know about the August 12 refusal to bargain.
The first factor considered by the Board—the length of time
between the unfair labor practice and the withdrawal of recog-
nition—certainly indicates a causal relationship.
The second factor concerns the nature of the violations, in-
cluding the possibility of a detrimental or lasting effect on em-
ployees. Respondent’s refusal to meet with the Union had an
obviously detrimental impact on the collective-bargaining
process, and therefore on bargaining unit employees.
In applying the third criterion, the Board assays the tendency
of the violations to cause employee disaffection. In this case,
all of the unfair labor practices would tend to make the Union
appear ineffectual to the employees. When Respondent ignored
the Union and set certain wage and vacation rates unilaterally,
it necessarily created the impression that the Union was power-
less to prevent the change. Employees reasonably would con-
clude that a union which is powerless is also useless.
Respondent’s penultimate unfair labor practice, refusing to
meet with the Union, clearly conveyed the message that the
Union lacked the ability to represent the employees effectively
at the bargaining table. It would be difficult to imagine an un-
fair labor practice more likely to cause employee disaffection
than an employer’s refusal to meet with the union.
The Board’s fourth factor is quite similar to the third. It fo-
cuses on the effect the unlawful conduct reasonably would have
on employees’ morale, organizational activities and member-
ship in the union. All of Respondent’s unfair labor practices
predictably would have a negative impact on morale. Respon-
VANGUARD FIRE & SECURITY SYSTEMS 1045
dent’s refusal to meet and negotiate with the Union directly
undermined the Union’s ability to represent the bargaining unit
employees, and reasonably would decrease both the morale of
employees and their interest in union membership.
Thus, all four factors point to the same conclusion: Respon-
dent’s unfair labor practices were quite likely to diminish em-
ployees’ support for the Union. Therefore, this unlawful con-
duct tainted the antiunion petition.
Respondent argues that the employees who signed the peti-
tion were not aware of its unfair labor practices. Therefore,
Respondent contends, the unfair labor practices could not have
tainted the petition. However, the General Counsel does not
have to prove that employees actually knew of the unfair labor
practices. See Hearst Corp., 281 NLRB 764, 765 (1986)
(“[W]e are unwilling to allow the Respondent to enjoy the
fruits of its violations by asserting that certain of its employees
did not know of its unlawful behavior, but rather shall hold it
responsible for the predictable consequences of its miscon-
duct.”); see also Wire Products Mfg. Corp., supra, 325 NLRB
at 627 fn. 13, citing Fabric Warehouse, 294 NLRB 189 (1989).
Moreover, considering the small size of the bargaining unit
in this case, and further considering that Respondent’s refusal
to negotiate affected every employee represented by the Union,
it appears inevitable that word of the unfair labor practice
would spread quickly throughout the unit.
Additionally, even assuming for analysis that the employees
did not know that Respondent was refusing to bargain, the ef-
fects of this refusal would still produce discontent. The very
absence of any news that negotiations were progressing cer-
tainly would increase employee doubts about the Union’s abil-
ity to effect change in the workplace.
Therefore, I conclude that the government has proven the al-
legations in complaint paragraph 21(c). Further, I recommend
that the Board find that Respondent’s withdrawal of recognition
from the Union violated Section 8(a)(5) and (1) of the Act, as
alleged in complaint paragraph 22.
CONCLUSIONS OF LAW
1. Vanguard Fire & Supply Co., Inc., doing business as
Vanguard Fire & Security Systems, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Road Sprinkler Fitters Local Union No. 669, United As-
sociation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL–CIO
is a labor organization within the meaning of Section 2(5) of
the Act.
3. At all material times, the Union has been, as alleged in
complaint paragraph 9, the exclusive collective-bargaining
representative of the employees in the unit set forth in com-
plaint paragraph 8 and described above.
4. Commencing about December 5, 2002, Respondent im-
plemented a policy requiring unit employees to reimburse Re-
spondent for certain costs of subscribing to Nextel cell phone
service. as alleged in complaint paragraph 10, without first
notifying the Union and affording it an opportunity to bargain,
as alleged in complaint paragraph 16. This action violated
Section 8(a)(5) and (1) of the Act, as alleged in complaint para-
graph 22.
5. Section 10(b) bars litigation of the allegations in com-
plaint paragraphs 11 and 13 relating to the July 8, 2002 starting
wage rate and vacation accrual rate for Phillip Moss, but does
not bar litigation of the allegations relating to the July 22, 2002
starting wage rate and vacation accrual rate for Jason Engle.
6. Respondent implemented a discretionary starting wage
rate for employee Jason Engle on July 22, 2002, as alleged in
complaint paragraph 11, without first notifying the Charging
Party and affording it an opportunity to bargain, as alleged in
complaint paragraph 16. This action violated Section 8(a)(5)
and (1) of the Act, as alleged in complaint paragraph 22.
7. Respondent implemented a discretionary wage increase
for employee Mike King in November 2002, as alleged in com-
plaint paragraph 12, without first notifying the Union and af-
fording it an opportunity to bargain, as alleged in complaint
paragraph 16. This action violated Section 8(a)(5) and (1) of
the Act, as alleged in complaint paragraph 22.
8. Respondent implemented a discretionary vacation accrual
rate for employee Jason Engle on July 22, 2002, as alleged in
complaint paragraph 13, without first notifying the Union and
affording it an opportunity to bargain, as alleged in complaint
paragraph 16. This action violated Section 8(a)(5) and (1) of
the Act, as alleged in complaint paragraph 22.
9. No credited evidence establishes that since about May
2003, Respondent has expanded and enhanced its system of
surveillance cameras at its Grand Rapids facility, as alleged in
complaint paragraph 14.
10. Respondent violated Section 8(a)(5) and (1) by failing
and refusing to provided requested information requested con-
cerning what jobs had been awarded and their approximate
starting dates.
11. Respondent violated Section 8(a)(5) and (1) by refusing
to negotiate with the Union unless the Union first complied
with its demand for a bargaining agenda.
12. On or about October 15, 2004, Respondent withdrew
recognition from the Union, as alleged in complaint paragraph
21(a).
13. Respondent withdrew recognition based upon a petition
signed by fewer than a majority of employees in the collective-
bargaining unit, as alleged in complaint paragraph 21(b)
14. Respondent withdrew recognition from the Union on the
basis of a petition tainted by Respondent’s unremedied unfair
labor practices, as alleged in complaint paragraph 21(c).
15. Respondent’s withdrawal of recognition from the Union
violated Section 8(a)(1) and (5) of the Act, as alleged in com-
plaint paragraph 22.
16. Respondent did not violate the Act in any other manner
alleged in the complaint.
REMEDY
When an employer unlawfully withdraws recognition from a
union, the Board’s longstanding and normal practice has been
to order the employer to recognize and bargain with the union.
In several cases, however, the U.S. Court of Appeals for the
District of Columbia Circuit has required that the Board justify,
on the facts of each case, the imposition of such an order. See,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1046
e.g., Vincent Industrial Plastics v. NLRB, 209 F.3d 727 (D.C.
Cir. 2000); Lee Lumber & Bldg. Material v. NLRB, 117 F.3d
1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos v. NLRB, 28
F.3d 1243, 1248 (D.C. Cir. 1994). Therefore, I will address the
criteria set forth by the court.
The court has held that an affirmative bargaining order must
be justified by a reasoned analysis that includes an explicit
balancing of three considerations: (1) the employees’ Section7
rights; (2) whether other purposes of the Act override the rights
of employees to choose their bargaining representatives; and
(3) whether alternative remedies are adequate to remedy the
violations of the Act.
Section 7 of the Act gives employees the right to form, join,
or assist a labor organization, to bargain collectively through
representatives of their own choosing, to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any and all
such activities.
In this case, the bargaining unit employees had selected the
Union in a Board-conducted secret ballot election, resulting in
the Union’s July 26, 2001 certification as the exclusive bargain-
ing representative. For 1 year after that certification, the Union
enjoyed a conclusive presumption that it enjoyed the support of
a majority of unit employees. This presumption became rebut-
table after the end of the certification year.
When Respondent withdrew recognition about 15 months af-
ter certification, the parties had not completed the process of
negotiating an initial collective-bargaining agreement. By this
time, some bargaining unit employees (but not a majority) had
become sufficiently concerned that they signed an antiunion
petition.
However, Respondent’s serious unfair labor practices con-
tributed to the employees’ disaffection. Respondent had made
changes without first notifying and bargaining with the Union.
These unilateral actions inherently raised doubts about the Un-
ion’s effectiveness as the employees’ representative.
Even more significantly, shortly before employees began
signing the antiunion petition, Respondent refused to meet with
the Union. This refusal clearly signaled that the Union was
ineffective and that collective bargaining was futile.
Respondent’s unfair labor practices thus coerced employees
in the exercise of their Section 7 rights. That coercion will
continue until the Board restores the conditions which existed
before Respondent “poisoned the well.” Those conditions in-
cluded Respondent’s obligation to recognize and bargain with
the Union. Ordering Respondent to satisfy this obligation pro-
tects the employees’ Section 7 rights by allowing those rights to
be exercised in an environment free of unlawful coercion.
Moreover, notwithstanding the coercive effects of Respon-
dent’s unfair labor practices, a majority of the bargaining unit
employees did not sign the antiunion petition. Ordering Re-
spondent to bargain does not frustrate the will of the majority
but rather vindicates it.
Considering how recently the employees expressed their will
in the 2001 secret ballot election, making that choice meaning-
ful serves a paramount purpose. Indeed, should an employer be
allowed to escape its bargaining obligations by committing
unfair labor practices, all purposes of the Act would sustain
damage. Board elections would be reduced to theater, having
some symbolic value, perhaps, but little ability to give employ-
ees voice in the workplace. Likewise, permitting an employer
to enjoy the fruits of its unlawful conduct would render the
Board’s unfair labor practice machinery ineffective. The ulti-
mate result would be an increasing resort to self-help and a
return to the strife which Congress intended the Act to prevent.
No alternative remedy exists which would restore the status
quo ante and undo the harmful effects of Respondent’s unlaw-
ful conduct. Therefore, I recommend that the Board order Re-
spondent to recognize and bargain with the Union.
The General Counsel does not seek restoration of the status
quo ante as the remedy for some of the unilateral change viola-
tions. Specifically, the complaint seeks a remedial order which
includes the proviso that “nothing in this order shall be deemed
to require Respondent to rescind the unilaterally increased
wages absent request by the Charging Party.”
Clearly, this language refers to the wage increases alleged in
complaint paragraphs 11 and 12. Although the proviso does
not mention the unilaterally set starting wages (but only the
increases), the same principle would apply: An order requiring
Respondent to rescind the wage increases could itself cause
harm to members of the bargaining unit.
The proviso does not mention the unilaterally set vacation
accrual rates alleged in complaint paragraph 13. However, a
remedy requiring Respondent to rescind those rates likewise
would have the potential to harm bargaining unit members.
There would be no apparent logic in an order which required
Respondent to rescind one unilaterally set benefit, the wage
increases, but not to rescind another unilaterally set benefit, the
wage increases rate.
Remedies for all three of these unilateral changes must be
crafted carefully to minimize the risk of harm to bargaining unit
employees. Accordingly, I will apply the proviso language to
the remedies for the unilaterally set starting wage rates, the
unilaterally set wage increases, and the unilaterally set vacation
accrual rates.
In another unlawful unilateral change, Respondent imple-
mented changes in its policy concerning reimbursement for cell
phone expenses. Although the telephone records establish that
Respondent did make such unilateral changes, the parties have
not litigated issues involving which employees suffered losses
and the extent of those losses. These issues should be left to
the compliance stage.
As discussed above, Respondent violated Section 8(a)(5) and
(1) of the Act by failing and refusing to provide the Union with
requested information concerning jobs which had been
awarded. Respondent may well have finished the jobs it had
been awarded at the time the Union requested this information,
but that does not make the issue moot. Although the specific
details may change over time, information concerning Respon-
dent’s projects and sites remains relevant, the Union has a con-
tinuing need for it, and Respondent must provide it.
Respondent also must post the notice to employees attached
to this decision as Appendix A.
[Recommended Order omitted from publication.]