NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,579, WEHR CONSTRUCTION, INC. and KENTUCKY STATE DISTRICT COUNCIL OF CARPENTERS, AFL-CIO., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

WEHR CONSTRUCTION, INC. and KENTUCKY STATE DISTRICT COUNCIL OF CARPENTERS, AFL-CIO.

315 NLRB No. 129.Case Nos. 9-CA-27465, -27540, -27549, -27762, -28008, -28137, -28140 and -28435. December 16, 1994 Karl H. Buschmann, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Andrew L. Lang and Garey E. Lindsay, for General Counsel. Andrew J. Russell and James U. Smith III (Smith & Smith), Louisville, Kentucky, for Respondent.

Bargaining Duty--Good Faith--Contract Negotiations Pending.--After the expiration of a collective bargaining agreement with a union, an employer made several changes to its employees’ working conditions and committed bargaining violations that demonstrated its lack of good faith during the subsequent bargaining negotiations. The employer’s unlawful acts included refusing to furnish a union with relevant requested information, subcontracting various bargaining unit jobs without notice to the union, imposing restrictions upon the union’s access to unit employees at jobsites, denying union access to jobsites, forcibly removing union representatives from jobsites and paying reduced wages without notice to the union. Section 8(a)(5).

Back reference: ¶3145.731.

Interference--Fact Finding--Coercive Remarks.--On the facts, by threatening to lay off employees because of a union’s conduct in attempting to represent the employees, and by promising increased benefits for their union resignation, an employer interfered with the employees’ right to select a bargaining representative. Section 8(a)(1).

Discharges--Antiunion Animus--Union Steward.--By terminating a union steward and, thereafter, by failing to recall him because of his activities on behalf of the union, an employer discriminated against the steward. The employer had demonstrated union animus through its frequent threats by several supervisors that the employee’s conduct as a union steward would cause his discharge, and the employer failed to prove that it would have discharged him absent his union activities. Section 8(a)(3).

Back reference: ¶4010.409.

From Text of Board’s Decision

The issues in this case include: whether the judge correctly found that the Respondent violated Section 8(a)(5) of the Act by unilaterally subcontracting bargaining unit work, by refusing to furnish subcontracting information requested by the Union, and by refusing to bargain with the Union in good faith; whether the judge correctly denied a make-whole remedy for the Respondent’s unlawful subcontracting; and, whether the judge correctly found that the Respondent did not violate Section 8(a)(1) of the Act by soliciting employees to resign from the Union in exchange for increased benefits. [1] The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [2] and conclusions, except as modified below, and to adopt the recommended Order as modified. [3] For the reasons set forth below, we find merit in the General Counsel’s exceptions to the judge’s failure to grant a make-whole remedy for the Respondent’s unlawful subcontracting. We also find merit in the General Counsel’s exception to the recommended dismissal of the Section 8(a)(1) allegation regarding the Respondent’s solicitation of resignations from the Union.

1. On January 3, 1991, at a meeting held in anticipation of a strike, the Respondent’s Project Manager Paul Hinson read a memorandum to assembled carpenters. The memorandum stated, in part:

If a strike or a picket is in place and you desire to continue to work for Wehr, do not cross the line until you have submitted a letter of resignation to the Union. This will prevent any fines from being levied. We will rresolve and work out your benefits immediately so that you will not lose important coverage.

At another meeting held around the same date, one of the Respondent’s carpenters asked what benefits he would receive if he resigned from the Union. In response, project manager Gary Brooks distributed to unit employees a letter “to confirm our agreement as you leave the Carpenter’s Union and switch to our fringe benefits.” The letter listed several benefits which unit employees did not currently receive.

The administrative law judge discounted the memorandum and the letter as mere factual statements by the Respondent regarding the benefits that unit employees would receive if they resigned from the Union. The judge erred, however, by equating union membership with unit employee status. Whether or not the Respondent’s carpenters chose to remain members of the Union during a strike, they would remain employees in the unit represented by the Union. The Respondent would be obligated to maintain current benefits for those employees unless and until it bargained in good faith to agreement or to impasse with the Union about proposed changes in benefits. Accordingly, the Respondent’s prestrike letter effectively promised unit employees that the Respondent would unilaterally provide them with new benefits if they resigned from the Union. We conclude that the Respondent violated Section 8(a)(1) of the Act by soliciting employees to abandon the Union in exchange for greater benefits.

We note that the General Counsel has not contended in his exceptions that the memorandum also violated Section 8(a)(1) by suggesting that employees had to resign from the Union in order to work during a strike.

2. In adopting the judge’s conclusion that the Respondent violated Section 8(a)(5) of the act by unilaterally changing its subcontracting practices, we do not rely on that part of the judge’s analysis which is based on Nolde Bros. Inc. v. Bakery Workers, [81 LC ¶13,055] 350 U.S. 243 (1977). We do not agree, however, that the judge correctly rejected the Respondent’s contention that its subcontracting practices after the Union’s certification amounted simply to an unchanged continuation of the Respondent’s previous lawful subccontracting practices; and therefore we find no merit to the Respondent’s present contention that its unlawful postcertification subcontracting was lawful under Westinghouse Electric Corp., [1965 CCH NLRB ¶9079] 150 NLRB 1574 (1965).

In Westinghouse, the Board held that the employer acted lawfully in failing to bargain over each individual act of subcontracting where those actions were entirely consistent with a practice that had been knowingly acquiesced in by the union over many years of bargaining. (The union had frequently sought a change in the practices; it would finally, however, sign collective-bargaining agreements that put no constraints on the subcontracting but granted other benefits to assure job security.) Id. at 1577. In the present case, as the judge found, the 1986-1989 contract between the parties had prohibited the Respondent from subcontracting contractually covered work to employers that would not sign the agreement, and the term of that contract was the most recent period showing the Respondent’s practices within a collective-bargaining relationship. The Respondent’s contention that its subcontracting parctices had been governed by an oral agreement between it and the Union that was contrary to the plain language of their 1986-1989 written agreement, was properly rejected by the judge, who credited testimony that the Respondent’s own representative admitted in 1987, when confronted by the Union over a breach of the subcontracting clause, that there was no such oral agreement. [4] Westinghouse is therefore inapposite.