NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,400, TAYLOR WAREHOUSE CORPORATION and ROBERT WESLEY JENSEN et al., (July 27, 1994), National Labor Relations Board, (Jul 27, 1994)

TAYLOR WAREHOUSE CORPORATION and ROBERT WESLEY JENSEN et al.

314 NLRB No. 84.Case Nos. 9-CA-29151 and -29274. July 27, 1994 Arline Pacht, Administrative Law Judge..

Before Gould, Devaney and Browning.

James E. Horner, for General Counsel. Roger A. Weber (Taft, Stettinius & Hollister), Cincinnati, Ohio, for Respondent. Barbara Harvey, Detroit, Michigan, for Charging Party.

Refusal to Bargin--Remedial--Orders--Scope of Remedy.--Following an employer’s unlawful transfer of bargaining unit work to noumion employees, a backpay remedy limited only to three employees who were laid off as a result of the diversion was too narrow. The record showed that additional bargaining unit employees were adversely affected by the transfer of bargaining unit work. Thus, the administrative law judge’s recommended remedial order was modified to make whole all unit employees for any loss of earnings they may have suffered as a result of the diversion of union work. Section 10(b).Refusal to Bargin--Remedial--Orders--Scope of Remedy.--Following an employer’s unlawful transfer of bargaining unit work to noumion employees, a backpay remedy limited only to three employees who were laid off as a result of the diversion was too narrow. The record showed that additional bargaining unit employees were adversely affected by the transfer of bargaining unit work. Thus, the administrative law judge’s recommended remedial order was modified to make whole all unit employees for any loss of earnings they may have suffered as a result of the diversion of union work. Section 10(b).

Back reference: ¶5315.938.

Impasse--Unilateral Changes--Scope of Unit.--By bargaining to impasse on the inclusion of a scope proposal, a permissive subject of bargaining, an employer violated its bargaining duty. Rejected was the employer’s contention that extrinsic evidence concerning the intent of the parties to a contract is irrelevant when the written language of the agreement is clear. However, under Board law, tentative agreements made during the courts of contract negotiations are not final and binding. Thus, because the union’s initialing of the employer’s scope proposal did not result in a binding agreement, it was proper for an administrative law judge to consider the testimony of a union agent concerning his intent. Section 8(a)(5).

Back reference: ¶3143.281.

Discrimination--Work Cutback and Contracting Out--Reprisal for Complaint.--By unilaterally transferring or diverting bargaining unit work to another company to retaliate against union members who had filed a complaint with OSHA, and, thereafter by laying off unit employees, an employer discriminated against them. As a pretext for the unlawful transfer of unit work and subsequent layoff of bargaining unit employees, the employer claimed that it was experiencing financial difficulties. Section 8(a)(3).

Back reference: ¶4080.815.

Threats--Job Security--Bargaining Proposals.--By threatening an employee with job dismissal if he adversely testified at an arbitration proceeding and by threatening to sell a warehouse if a union did not accept a bargaining contract proposal, an employer interfered with its employees’ right to engage in concerted activity. Such remarks were coercive and tended to undermine the employees’ confidence in their union’s ability to represent them. Section 8(a)(1).

Back reference: ¶3770.1851.

Refusal to Bargain--Fact Finding--Direct Dealing.--On the facts, although an employer distributed a copy of its collective bargaining proposal to its employees, that did not constitute direct dealing with the employees because the employer was not attempting to coerce the employees to abandon the union. Section 8(a)(5).

From Text of Board’s Decision

The Board has considered the decision and the record [1] in light of the exceptions and briefs and has decided to affirm the judge’s rulings, [2] findings, [3] and conclusions [4] and to adopt the recommended Order as modified.

1. The judge found, and we agree, that the Respondent transferred bargaining unit work to nonunit employees in violation of Section 8(a)(5), (3), and (1) of the Act. [5] However, the judge limited her backpay remedy to the three employees laid off as a result of the unlawful diversion of bargaining unit work. The General Counsel has excepted to the judge’s failure to provide a backpay remedy for all bargaining unit employees who lost earnings as a result of the Respondent’s unlawful transfer of bargaining unit work. We find merit in this exception because we agree with the General Counsel that the record shows that additional bargaining unit employees were adversely affected by the transfer of bargaining work. Accordingly, we shall modify the judge’s recommended Order and substitute a new notice to require that the Respondent, inter alia, make whole all unit employees for any loss of earnings they may have suffered as a result of the diversion of unit work. We leave to the compliance stage of this proceeding the determination of the amount of earnings lost and the identity of the employees entitled to an award. [6]

2. The judge also found, and we agree, that the Respondent unlawfully insisted to impasse on its unit scope proposal, a permissive subject of bargaining. In this connection, the judge admitted and credited the testimony of Union Business Agent Gibson that he did not agree to the Respondent’s scope proposal as written. Gibson testified that he initialed the Respondent’s proposal in January 1992, but he did so only with the understanding that the Respondent would delete certain underlined language making reference to Taylor Distributing employees’ right to perform specific work. He further testified that when he discovered at the next bargaining session that the underlined language had not been deleted he notified the Respondent that there was no agreement on that provision.

The Respondent argues that such testimony should not have been admitted or relied on because extrinsic evidence concerning the intent of the parties to a contract is irrelevant when the written language of the agreement is clear. Here, the Respondent argues, the Union initialed a written proposal containing clear and unambiguous language. Thus, the Union should be held to its agreement, and the judge should not have admitted Gibson’s testimony.

We disagree with the Respondent. Under Board law, tentative agreements made during the course of contract negotiations are not final and binding. [7] Thus, because the Union’s initialing of the Respondent’s scope proposal did not result in a binding agreement, it was proper for the judge to consider Gibson’s testimony concerning his intent.

The judge credited Gibson’s testimony that, although he initialed the Respondent’s scope proposal, he meant to strike, not accept, the underlined language. The judge found that union negotiators retracted their assent at the next meeting when they found that the controversial language had not been deleted. Thus, at that meeting it was clear to the Respondent’s negotiators that there was not true agreement on the scope proposal. In light of this lack of agreement between the parties, the Respondent was not entitled to insist on its scope proposal. Accordingly, for these reasons we find no merit in the Respondent’s contentions, and we agree with the judge that by bargaining to impasse on the inclusion of its scope proposal, a permissive subject of bargaining, the Respondent violated Section 8(a)(5) and (1) of the Act.