Virginian Metal Products

National Labor Relations Board - Board Decisions

Jan 31, 1992

306 N.L.R.B. 257 (N.L.R.B. 1992)

257
306 NLRB No. 52
VIRGINIAN METAL PRODUCTS
1 The judge found, and we agree, that the Respondent unlawfully
refused to furnish the Union records pertaining to profit sharing and
to pay profit sharing for fiscal year 1988 as in prior years or to dem-
onstrate that none could be paid. The judge inadvertently failed to
include an affirmative direction in his recommended Order that the
Respondent pay any applicable profit sharing for fiscal year 1988.
We shall modify the recommended Order accordingly.
2 No exceptions were filed to these findings.
3 All dates are in 1989 unless otherwise specified. 4 29 U.S.C. § 159(c)(3); Brooks v. NLRB, 348 U.S. 96 (1954).
Virginian Metal Products Co., Inc. and Inter-
national Ladies’ Garment Workers’ Union,
Southern District Council, Upper South De-
partment, AFL–CIO. Cases 11–CA–13206, 11–
CA–13284, 11–CA–13402, and 11–CA–13804
January 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 12, 1991, Administrative Law Judge Mar-
tin J. Linsky issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting brief, and the Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.1
We agree with the judge’s findings that the Re-
spondent committed numerous violations of Section
8(a)(1), (3), and (5).2 However, we do not agree with
his finding that the layoffs of June 2 and July 13 and
20, 1989,3 were economically motivated, and therefore
lawful, rather than a response to the Respondent’s em-
ployees’ union activity.
I. FACTUAL FINDING RELEVANT TO LAYOFFS
As more fully set forth by the judge, the Union won
an election at the Respondent’s truck manufacturing
facility on January 27, 1988, and was certified on Feb-
ruary 9. The parties soon thereafter commenced bar-
gaining. On April 11, 1988, 40 of the Respondent’s 50
employees went on a strike that lasted 4 months. The
Respondent hired replacements, whom it retained after
the strikers returned. The replacements virtually dou-
bled the work force, and the Respondent put the re-
placements on an unprecedented second shift.
As further found by the judge, in August 1988, the
Respondent began a carefully planned campaign to de-
certify the Union, including enlisting replacement em-
ployee Dewey Knuckles to circulate and file a decerti-
fication petition. Although the parties reached agree-
ment on a contract on January 30, the Respondent de-
layed executing the contract until February 13, and re-
fused to make it effective from the January 30 date
when agreement was reached. The delay was cal-
culated to make certain that the decertification petition
which was filed on February 10 would be considered
timely filed. As a result of the delay on the contract’s
execution, the petition finally filed by Dewey Knuckles
with substantial assistance from Superviser Bill Fullen,
was in fact filed in the window period between the end
of the certification year and the actual execution of the
collective-bargaining agreement. It therefore was time-
ly under the Board’s Rules and Regulations.4
During the time between the return of the strikers in
August 1988 and the June 1989 layoff, the Respondent
kept its second shift intact even though its production
rate did not increase. During the course of these 9 to
10 months, Plant Manager Boyd met with supervisors
periodically and discussed production, as well as the
possibility of layoffs. The Union urged the Respondent
to lay off the second shift, but the Respondent stead-
fastly refused and instead dealt with being overstaffed
by instituting 4-day workweeks throughout the fall of
1988.
There was extensive testimony that the Respondent
had not laid off employees since the early 1980s. His-
torically, when work was slow the Respondent found
maintenance and cleaning jobs for its employees. In
fact, the constancy of work was regarded as one of the
job’s benefits, which compensated for the modest pay.
Consistent with this, when advertising jobs for strike
replacements, the Respondent billed the jobs as
‘‘steady regular job[s].’’
Despite his participation in the decertification effort,
in April 1989 Dewey Knuckles and fellow second-shift
employee Daniel Harmon joined the Union. Shortly
thereafter Harmon and Knuckles told Supervisors
Larry Clark and Tom Lawson they had done so. On
April 20, the Union filed charges alleging that the Re-
spondent had unlawfully initiated, assisted, and encour-
aged the filing of the decertification petition.
Knuckles was suspended for 5 days in late May,
and, during this time, he withdrew the decertification
petition. When he returned to work, he told everyone
on the second shift, including Supervisors Clark and
Lawson, that he had withdrawn the petition. On May
25, while discussing a possible grievance on Knuckles’
behalf, Plant Manager Boyd said to Union Steward
Steve Richardson, ‘‘Dewey Knuckles was a union
member, wasn’t he?’’ Richardson responded that he
did not know, but that he thought that most of the sec-
ond shift were members.
On June 2, 1989, just 4 days after Knuckles returned
to work from his suspension and told supervisors that
he had withdrawn the petition, and 1 week after
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Boyd’s conversation with Richardson, the entire sec-
ond shift was laid off. No advance notice was given
concerning this layoff. At that time the second shift
consisted of 13 bargaining unit employees. The as-
serted reason for the layoff was lack of work. Accord-
ing to the credited testimony of second-shift employees
Knuckles and Harmon, the production level at that
time appeared to be just the same as it had been during
the entire course of their employment.
On June 6, Boyd had a conversation with Steward
Richardson and Supervisor Steve Spivey. Boyd said
that he heard the Union might be filing grievances for
two employees who had come to the plant on June 5
wanting to bump back in after the June 2 layoff. Rich-
ardson testified that Boyd then stated:
Filing grievances for people like Dewey Knuckles
and Danny Harmon would be the the end of Vir-
ginian Metals that they couldn’t pay their bills
now and once you drained all the blood out of
anything it’s all gone and that I wasn’t only deal-
ing with my job, but his job and everybody else’s
and that there wasn’t going to be no Virginian
Metals. I wouldn’t have no job, no Union, and I
wouldn’t be no steward.
Boyd went on to tell Richardson that the coming Fri-
day might be another one like that Friday before. The
‘‘Friday before’’ was a reference to the June 2 layoff.
That same day in a separate conversation with
Union President Hart, Boyd spoke about tools being
damaged in the shop and expressed the opinion that
the damage was deliberate. Hart testified that Boyd
went on to state:
The company was going broke and they were in
debt and they were right on the verge of going
bankrupt and then he started talking about us fil-
ing grievances and the cost of arbitration. He said
he thought the minimum of arbitration would
probably be around a thousand dollars, and we
had already filed eight or ten grievances and that
if we kept filing grievances like we were, then
there could be another Friday like the Friday be-
fore.
Despite Boyd’s comments, the Union continued to file
grievances.
On June 16, Boyd had another discussion with Hart
in Boyd’s office with Steward Pinion present. Boyd
stated that he had received a letter from the Union ask-
ing to combine the grievances of Knuckles, Harmon,
and Benny Messick. Boyd discussed the merits of the
grievances, particularly the seniority date for Harmon.
Boyd then stated that he did not care whether the
Union got Harmon’s job back, because if Harmon won
the arbitration, Boyd would create a slack in the work
area so that Harmon would be laid off anyway.
On July 13, three departments were laid off for 10
days. They were parts manufacturing, sidebuilding, and
steel welding. The employees in steel welding received
their layoff slips about 3 p.m. There were trucks to be
worked on at the time. During the 10-day layoff, both
supervisors and other unit employees performed a great
amount of work ordinarily performed by the employ-
ees on layoff.
The aluminum department was not involved in the
layoff. Prior to the layoff, the aluminum department
employees were working overtime, partly in steel
welding.
On July 20, about 2 p.m., Richardson filed another
grievance. Richardson worked in the welding installa-
tion department. Just before 4 p.m., the entire depart-
ment was laid off for 2 days.
As of June 15, the Respondent knew that it had se-
cured the contract for a major truck bed order from the
State of Virginia. After a pilot model was completed
and approved in September, work on this order began
in earnest in October.
II. ANALYSIS
Contrary to the judge, we find that all three layoffs
were motivated by the employees’ union activity, and
that the Respondent has not shown that the layoffs
would have occurred in the absence of their union ac-
tivity. The Respondent laid off its second shift on June
2 immediately after learning two pieces of information.
First, the pending decertification petition had been
withdrawn. Second, a majority of the second shift sup-
ported the Union. Apart from this newly acquired
knowledge, there were no other changed circumstances
that could explain the layoff of the second shift. The
only thing that had changed was the known union sen-
timents of the employees on the second shift, including
Dewey Knuckles. In addition, on June 6, just 4 days
later, the Respondent virtually admitted an unlawful
motivation for the June 2 layoff when Plant Manager
Boyd in two separate conversations threatened another
layoff ‘‘like the Friday before’’ if the Union continued
to file grievances.
The judge noted that production records show that
the production for June 1989 dropped from the levels
of the immediately preceding months. Apparently sole-
ly on the basis of these records the judge concluded
that the Respondent’s economic motivation for the lay-
offs effectively rebutted the General Counsel’s prima
facie case. These records also show, however, that pro-
duction was greater in June than the production rate
for the previous August, September, October, Novem-
ber, December, and January, when the Respondent had
vigorously opposed laying off the second shift. Thus,
production was better than it had been in 6 out of the
preceding 10 months. Further, a major contract was
pending. Nevertheless, a few days after the Respondent
259VIRGINIAN METAL PRODUCTS
learned that the union sentiments of the second shift
had changed and that the decertification petition had
been withdrawn, the second shift was eliminated. The
Respondent did not implement 4-day workweeks or
find other work for the employees as it had done to
avoid layoffs in the past.
Similarly, the July 13 and 20 layoffs were unprece-
dented. Several employees testified that the pace of
work seemed only somewhat slower, and there is
uncontradicted evidence that after the layoff some em-
ployees were working overtime and that the work of
laid-off employees was being performed by supervisors
and other employees. The record reveals that the Re-
spondent has complete control over bringing orders to
the floor. Plant Manager Boyd’s comment that he
would ‘‘create a slack in the work area’’ so that Har-
mon would be laid off shows that a layoff could be
engineered at will and that the Respondent would not
hesitate to use layoffs in retaliation for the employees’
union activities.
Furthermore, the timing of the July temporary lay-
offs is striking. The previous month, Boyd twice
threatened layoffs if the Union continued to file griev-
ances. The Union did not stop filing grievances and
Boyd’s ‘‘prediction’’ was fulfilled. In addition, the
July 20 layoff occurred within 2 hours of Richardson’s
filing another grievance and involved only Richard-
son’s department. In sum, we find that the Respondent
made good on Boyd’s threats. In fact, all three layoffs
occurred against a background of numerous and sig-
nificant unfair labor practices. Accordingly, we find
that the layoffs of June 2 and July 13 and 20 were in
violation of Section 8(a)(3) and (1) of the Act.
In finding that the layoffs were unlawful, we rely on
the timing of the layoffs, the absence of evidence that
production levels warranted a reduction in the work
force, the Respondent’s unlawful threats to close the
plant or lay off employees because the Union pursued
employee grievances, the performance of the laid-off
employees’ work by supervisors and other employees,
and the Respondent’s deviation from its past practice
of no layoffs. These circumstances lead us to conclude
that the three layoffs were in response to the employ-
ees’ changed union sentiments and their filing of griev-
ances. The Respondent’s evidence for its purported
economic reasons for the layoffs is insufficent either to
rebut the evidence of unlawful motive or to carry the
Respondent’s burden, under NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), of showing
that the layoffs would have occurred even in the ab-
sence of the employees’ protected activities.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist therefrom and take certain affirmative action
necessary to effectuate the purposes of the Act.
The Respondent shall be ordered to offer immediate
and full reinstatement to the second-shift employees
laid off on June 2, 1989, to their former jobs or, if
their jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed.
The Respondent shall also be ordered to make whole
the employees laid off on June 2 and July 13 and 20,
1989, for any loss of earnings and other benefits they
may have suffered by payment to them of the sum of
money they would have earned but for the discrimina-
tion against them, less interim earnings, plus interest.
All backpay due shall be calculated on a quarterly
basis in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), and interest shall be cal-
culated in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 3.
‘‘3. When the Respondent failed and refused to fur-
nish the Union information on what profit, if any, the
Respondent made in fiscal years 1986, 1987, and 1988,
and when the Respondent failed to pay profit sharing
for fiscal year 1988 or demonstrate that none could be
paid, the Respondent violated Section 8(a)(5) and (1)
of the Act.’’
2. Insert the following as Conclusion of Law 4 and
consecutively renumber the remaining paragraphs.
‘‘4. When the Respondent laid off its employees on
June 2 and July 13 and 20, 1989, because of their
union activities, it violated Section 8(a)(3) and (1) of
the Act.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Virginian Metal Products Co., Inc., Rich-
lands, Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Laying off employees because of their union ac-
tivities.
(b) Failing and refusing to furnish to the Union in-
formation necessary and relevant in order for the
Union to carry out its collective-bargaining responsibil-
ities such as profit statements for fiscal years 1986,
1987, and 1988, and evidence of oral warnings for the
period October 1, 1988, to February 13, 1989.
(c) Unilaterally failing to pay profit sharing or dem-
onstrate that none could be paid.
(d) Unilaterally and without giving notice and op-
portunity to bargain to the Union, holding meetings
with employees to tell them what the 401(k) pension
plan will be.
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
(e) Delaying raising employees to top pay because
they engage in protected concerted activity.
(f) Denying access to a union-selected industrial hy-
gienist to inspect the plant ventilation system.
(g) Issuing written warnings to employees because
they engage in protected concerted activity.
(h) Encouraging or assisting employees to decertify
the Union.
(i) Threatening to close the plant or lay off employ-
ees because the Union pursues employee grievances.
(j) Conditioning good job recommendations on with-
drawal of grievances.
(k) Discharging employees because they engage in
protected concerted activity or testify at arbitration
hearings.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
their rights guaranteed them under the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union, on request, evidence of
oral warnings issued employees between October 1,
1988, and February 13, 1989, and evidence of profits
made by the Respondent in fiscal years 1986, 1987,
and 1988.
(b) Pay any applicable profit sharing for fiscal year
1988, with interest computed in the manner set forth
in the remedy section of this decision.
(c) Offer the second-shift employees laid off on June
2, 1989, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
subtantially equivalent positions, without prejudice to
seniority or any other rights or privileges previously
enjoyed, and make whole the employees laid off on
June 2, July 13 and 20, 1989, for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the
remedy section of the decision.
(d) Offer Mike Hagy immediate and full reinstate-
ment to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights
and privileges, and make Mike Hagy whole for any
loss of earnings and other benefits suffered by him
from the date he was able to return to his regular job.
Backpay is to be calculated in the manner set forth in
the remedy section of this decision.
(e) Pay to employee Richard Webb the difference in
pay between $7.75 per hour and top pay of $8.30 per
hour, with interest, for the period between his return
to work in September 1988 and when he was raised
to top pay in February 1989.
(f) If requested by the Union, grant access to its fa-
cility to an industrial hygienist selected by and paid by
the Union to inspect the ventilation system.
(g) Remove from its files any reference to Ronald
Keene’s unlawful warning and to the unlawful dis-
charge and layoffs and notify the employees in writing
that this has been done, and that evidence of these un-
lawful actions will not be used against them in any
way.
(h) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(i) Post at its Richlands, Virginia facility copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 11, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(j) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT lay off employees because of their
union activities.
WE WILL NOT refuse to furnish to the Union infor-
mation necessary and relevant to the Union’s carrying
out its collective-bargaining responsibilities.
WE WILL NOT unilaterally and without giving notice
and opportunity to bargain to the Union, hold meetings
with employees concerning the 401(k) pension plan.
WE WILL NOT delay raising employees to top pay
because they engage in protected concerted activities.
WE WILL NOT deny access to a union-selected indus-
trial hygienist to inspect the plant ventilation system.
WE WILL NOT issue written warnings to employees
because they engage in concerted protected activities.
261VIRGINIAN METAL PRODUCTS
WE WILL NOT encourage or assist employees in de-
certifying the Union.
WE WILL NOT threaten to close the plant or lay off
employees because the Union pursues grievances.
WE WILL NOT condition good job recommendations
on withdrawal of grievances.
WE WILL NOT discharge employees because they en-
gage in protected concerted activities or testify at arbi-
tration hearings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL furnish the Union, on request, evidence of
oral warnings issued employees between October 1,
1988, and February 13, 1989, and evidence of profits
made by the Company in fiscal years 1986, 1987, and
1988. WE WILL pay any applicable profit sharing for
fiscal year 1988, with interest.
WE WILL offer the second-shift employees imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and WE
WILL make whole the second-shift employees laid off
on June 2, 1989, and the employees laid off on July
13 and 20, 1989, with interest, for any loss of earnings
and other benefits suffered by them as a result of our
unlawful conduct.
WE WILL offer Mike Hagy immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights and privi-
leges, and WE WILL make Mike Hagy whole for any
loss of earnings and other benefits suffered by him
from the the date he was able to return to his regular
job, with interest.
WE WILL pay to employee Richard Webb the dif-
ference in pay between $7.75 per hour and top pay of
$8.30 per hour, with interest, for the period between
his return to work in September 1988 and when he
was raised to top pay in February 1989.
WE WILL, on request, grant access to our facility to
an industrial hygienist selected by and paid by the
Union to inspect the ventilation system.
WE WILL remove from our files any reference to
Ronald Keene’s unlawful warning and to the discharge
and unlawful layoffs and notify the employees in writ-
ing that this has been done and that evidence of the
unlawful actions will not be used against them in any
way.
VIRGINIAN METAL PRODUCTS CO., INC.
Jane P. North, Esq., for the General Counsel.
Lawrence E. Morhous, Esq., of Bluefield, West Virginia, for
the Respondent.
Adrienne A. Berry, Esq., of Louisville, Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On Feb-
ruary 23, 1989, the Charging Party filed the charge in Case
11–CA–13206, on April 20, 1989, the Charging Party filed
the charge in Case 11–CA–13284, on July 11, October 20
and 26, 1989, the Charging Party filed the charge, amended
charge, and second amended charge in Case 11–CA–13402,
and on April 13, 1990, the Charging Party filed the charge
in Case 11–CA–13804. The aforementioned charges were all
filed against Virginian Metal Products Co., Inc. (Respondent)
by the International Ladies’ Garment Workers’ Union, South-
ern District Council, Upper South Department, AFL–CIO
(Charging Party or Union).
On January 17, 1990, the National Labor Relations Board,
by the Regional Director for Region 11, issued an amended
second order consolidating cases and amended consolidated
complaint in Cases 11–CA–13206, 11–CA–13284, and 11–
CA–13402. On May 14, 1990, the National Labor Relations
Board, again by the Regional Director for Region 11, issued
a complaint in Case 11–CA–13804. These cases were con-
solidated for trial before me.
The complaints allege that Respondent violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act in
numerous ways, set forth below, following the Board certifi-
cation of the Union to represent a unit of Respondent’s em-
ployees. The hearing was held in Tazewell, Virginia, on
April 11, 12, and 13 and May 24, 1990.
On the entire record in this case, to include posthearing
briefs submitted by the General Counsel, Respondent, and
Charging Party, and on my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Virginian Metal Products Co., Inc., is
now and has been at all times material a Virginia corporation
with a facility at Richlands, Virginia, where it is engaged in
the manufacture of truck bodies.
During the 12 months preceding the issuance of the com-
plaints tried before me Respondent received at its Richlands,
Virginia facility goods and raw material valued in excess of
$50,000 directly from points outside the commonwealth of
Virginia, and Respondent shipped from its Richlands, Vir-
ginia facility products valued in excess of $50,000 directly
to points outside the Commonwealth of Virginia.
Respondent admits, and I find, that it is now and has been
at all times material an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is now and
has been at all times material a labor organization within the
meaning of Section 2(5) of the Act.
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Union in the fall of 1987, began a campaign to orga-
nize the production and maintenance employees of the Re-
spondent. Respondent is in the business of manufacturing
truck bodies.
An election was held on January 27, 1988. The Union won
the election and was certified by the Board as the collective-
bargaining representative of the production and maintenance
employees of the Respondent on February 9, 1988.
The parties began negotiating for a first collective-bar-
gaining agreement. Between April and August 1988 there
was a strike. When the workers returned to work the work
force was close to doubled since Respondent had hired and
kept on the strike replacements it hired.
The Union had beginning on February 9, 1988, an
irrebuttable presumption of majority status for a 1-year pe-
riod or until February 9, 1989, when it would then have
merely a rebuttable presumption of majority status unless the
Union and Respondent had agreed to a collective-bargaining
agreement, in which case there would be a contract bar to
any attempt to decertify the Union as the representative of
the employees.
It is alleged that during the 1 year of irrebutable presump-
tion of majority status following certification that Respond-
ent, acting through various supervisors and agents, sought to
undermine support for the Union by committing unfair labor
practices, for example, failing and refusing to pay profit shar-
ing in November 1988, paying less than full Christmas bo-
nuses in December 1988, failing to give a pay raise to em-
ployee Richard Webb, giving a written warning to employee
Ronald Keene, encouraging and assisting an employee in the
filing of a decertification petition, and bargaining in bad faith
with the Union for a first contract by denying access to the
plant by an industrial hygienist and refusing to turn over to
the Union information or benefits and profit sharing.
In February 1989, at the end of the 1-year period of
irrebuttable presumption of majority status the Union and
Respondent agreed on a 1-year collective-bargaining agree-
ment effective from February 13, 1989, to February 13,
1990.
Because of the ‘‘contract bar’’ rule the Union enjoyed for
the period of this contract, i.e., 1 year, an irrebuttable pre-
sumption of majority status.
It is alleged that Respondent committed a number of unfair
labor practices during the term of this 1-year contract with
a view toward undermining support for the Union among its
employees. These alleged unfair labor practices included
threats to close the plant, threats to lay off employees, threats
to terminate employees, three separate layoffs, the close
monitoring and suspension of employee Dewey Knuckles for
5 days because he switched from being antiunion to being
prounion, telling an employee that Respondent would give
him a good job recommendation if he withdrew a grievance,
and failing to bargain in good faith by refusing to turn over
information on oral warnings to the Union and implementing
a 401(k) pension plan without giving prior notice and oppor-
tunity to bargain to the Union, and, lastly, by discharging
employee Mike Hagy.
In February 1990, Respondent and the Union entered into
a collective-bargaining agreement to succeed the 1989–1990
agreement. This new collective-bargaining agreement is ef-
fective from February 13, 1990, to February 13, 1993.
I will first address the unfair labor practice alleged to have
occurred between certification of the Union in February
1988, and the first contract between Respondent and the
Union in February 1989.
B. Alleged Unfair Labor Practices between
Certification and the Parties First Contract
1. Profit sharing
Respondent’s fiscal year ran from July 1 to June 30. Re-
spondent normally paid profit sharing to its employees be-
tween September and November based on profits for the fis-
cal year ending the prior June.
Employees when hired were told that one of the benefits
of working for Respondent was their profit-sharing plan. Evi-
dence at the hearing reflected that profit sharing was paid
every year in varying amount for decades with the exception
of several years in the early 1980’s because of the slump in
the coal industry which at that time was a big customer of
Respondent.
In 1988 no profit sharing was paid. Respondent claimed
that it was solely a management prerogative to pay profit
sharing and 1988 was a year either with little or no profit
because of the 4-month strike between April and August
1988 (half of which occurred during the 1988 fiscal year)
and because Respondent had extra expenses for legal fees oc-
casioned by events and the extra costs of hiring and training
the strike replacements it hired when the strike started. In ad-
dition, when the strike ended and Respondent’s striking em-
ployees returned to work, Respondent kept on the payroll the
replacement workers and had close to double the number of
employees with a production rate which evidence at the hear-
ing reflected was no higher. Of course, keeping double the
work force beginning in September 1988 had no effect on
fiscal 1988 profits since the fiscal year ended June 30, 1988.
The Union in November and December 1988 requested
that Respondent give it information regarding the profit-shar-
ing plan, i.e., the formula for deciding how much of the prof-
its was made available for profit sharing and what the profits
were for fiscal 1986, 1987, and 1988. Respondent refusal to
turn over this information.
During bargaining an employer must maintain in place
current benefits such as profit sharing until agreement chang-
ing or modifying them is reached, or until impasse is
reached, and then the employer may implement its last best
offer on the matter. See 299 Lincoln Street, 292 NLRB 172
(1988).
It was incumbent on Respondent to pay profit sharing as
it always did or at least demonstrate with some kind of docu-
ments why it was not paying any profit sharing that year.
Respondent did neither. Therefore, it violated Section 8(a)(1)
and (5) of the Act. The information requested by the Union
was necessary and relevant for it to carry out its duty to rep-
resent these employees. See NLRB v. Truit Mfg. Co., 351
U.S. 149 (1956); NLRB v. Acme Ind. Co., 385 U.S. 432
(1967). The remedy is to turn over the records requested by
the Union and pay the normal profit sharing paid in previous
years, or let the records reflect that no profit sharing could
be paid that year because no profits were available to share
with the employees. This will be left to the compliance stage
263VIRGINIAN METAL PRODUCTS
of these proceeding. I note that the Union promised that it
would keep these records of profits confidential and such a
promise will be asked for in the compliance stage of these
proceedings.
I note that the parties reached agreement on collective-bar-
gaining agreements covering the period February 13, 1989,
to February 13, 1990, after 21 negotiating sessions and the
period February 13, 1990, to February 13, 1993. There is no
provision for profit sharing in either agreement. However,
that does not excuse the failure of Respondent to demonstrate
the formula for paying profit sharing in the past, and either
pay or justify why it did not pay profit sharing in November
1988.
2. Less than full Christmas bonuses in December 1988
Respondent’s employees regularly received a Christmas
bonus in December of each year. The bonus was based on
length of service, i.e., an employee with 1 to 5 years’ service
received 1 weeks’ pay, 5 to 10 years’ service received 2
weeks’ pay, and over 10 years’ service received 4 weeks’
pay. New employees hired by Respondent were told that they
would be paid a Christmas bonus. Evidence at the hearing
reflected that oftentimes a full Christmas bonus was not paid
and employees received half the normal bonus. This was not
unusual.
In Christmas 1988, the employees received one-half the
normal bonus. A not uncommon event. Respondent has an
obligation to continue in effect the practice of paying Christ-
mas bonuses until changed by agreement or changed after
impasse in negotiations is reached. Respondent claims it did
continue the normal practice of paying a Christmas bonus,
and in 1988 paid less than full bonuses as it has in the past
because profits were down due to the strike and Respondent
having to hire and train a replacement work force.
I do not find that Respondent violated the Act by not pay-
ing full Christmas bonuses because what it did in 1988—pay
less than full bonuses—it had done a number of times in the
past.
There was no provision for a Christmas bonus in the
1989–1990 collective-bargaining agreement but there is a
provision for a Christmas bonus in the 1990–1993 collective-
bargaining agreement.
3. Delay to bringing employee Richard Webb
up to top pay
Richard Webb was hired by Respondent on April 17,
1987. He began at the regular pay and was given the regular
three automatic pay raises. He was actively prounion during
the organizing campaign, e.g., he wore a union button, etc.
He went on strike with many of his fellow employees in
April 1988. He returned to work after the strike in mid-Sep-
tember 1988. He did not receive top pay of $8.30 an hour
until late February 1989.
Evidence at the hearing reflects that employees normally
got to top pay in 1 year or less although pay raises to top
pay were not automatic. It took Webb 22 months to get to
top pay. If one discounts the 4-month strike period, it took
Webb 18 months to get to top pay rather than the more nor-
mal 12 months.
On the one hand evidence at the hearing reflects that
Webb was less than spectacular at his job and that Super-
visor Scott Spivey had criticized Webb’s work before the
strike began and even before Webb joined the Union. There
was also evidence that another employee complained to man-
agement about the quality of Webb’s work.
On the other hand, strike replacements hired after Webb
was on the job for a year got to top pay before he did, and
there were statements credibly attributed to supervisors that
Webb’s work was every bit as good as the work done on
second shift by those strike replacement workers who were
making more money than Webb.
The only distinction between the strike replacement em-
ployees and Webb is that Webb was actively prounion and
participated in the strike. The quality of their labor was the
same. Accordingly, it was a violation of Section 8(a)(3) of
the Act for Respondent to delay Webb receiving top pay
until February 1989. He should have gotten it beginning after
1 year on the job or in September 1988 when he returned
from strike. The remedy for this violation is to make Webb
whole for the difference in pay between what he made
($7.75 per hour) and top pay ($8.30 per hour) from Sep-
tember 1988 until February 1989.
4. Denial of access to industrial hygienist
On November 14, 1988, the Union requested that Re-
spondent permit it to have an industrial hygienist make an
inspection of the air ventilation system in the plant.
Beginning in July 1988, the Union reiterated to Respond-
ent the complaints about air quality in the plant it heard from
the employees it represented. Initially the Union wanted to
send an expert into the plant to see what a new ventilation
system would cost. Eventually, the Union merely requested
that it be allowed to send in an industrial hygienist to see
if the air quality was as bad as some of its members thought.
The Union, obviously, has an interest in doing what it can
to see that the employees it represents work in as healthy an
environment as possible consistent with getting the job done.
There is no evidence that the industrial hygienist would
have interfered in any way with production at the plant. Re-
spondent’s flat out denial of access to a union designated in-
dustrial hygienist to check air quality was a violation of Sec-
tion 8(a)(5) of the Act. Balancing the property rights of Re-
spondent against the right of the Union to check on ventila-
tion, a health concern for the employees it represents, at the
expense of the Union, I conclude that the Union’s right of
access for this very limited purpose outweighs Respondent’s
property rights and denial of access violates Section 8(a)(5)
of the Act. See NLRB v. American National Can Co., 293
NLRB 901 (1990), enfd. 924 F.2d 518 (4th Cir. 1991); and
the Board’s precedent setting decision in Holyoke Water
Power Co., 273 NLRB 1369 (1985), enfd. 778 F.2d 49 (1st
Cir. 1985).
Obviously a union paid industrial hygienist’s recommenda-
tion on improving or replacing the ventilation system at the
plant would not necessarily have to be implemented unless
Respondent wished to do so, but the matter would have to
be negotiated between Respondent and the Union.
5. Written warning to employee Ronald Keene
Ronald Keene began his employment with Respondent in
1978. He was actively prounion during the campaign and
participated in the April to August 1988 strike.
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On January 17, 1989, Keene and another employee passed
out union handbills in front of the building across the street
from Respondent’s facility. They were seen handbilling by
General Manager Jim Boyd.
Two days later Keene received a written warning for being
away from his work station. In point of fact, persons with
jobs like Keene were away from their work station on occa-
sions throughout the day to check on the paper work for a
particular job, etc. In other words an employee like Keene
being away from his work station did not necessarily mean
he was away goofing off or that he was not doing his job.
Keene credibly testified that he left his work station on the
day in question to check on some paperwork, which was part
of his job, saw a defective welding job, and brought it to the
attention of a management official. He then returned to his
work station. He was away from his work station for only
a couple of minutes. In fact, the supervisor who wrote him
up did not even know how long he was away from his sta-
tion. These facts were brought to the attention of General
Manager Jim Boyd by the Union who was protesting
Keene’s discipline. Boyd refused to rescind the written warn-
ing.
While Keene had some previous disciplines on his record
it seems clear that the instant warning on January 19, 1989,
was given to him because of his protected concerted activity;
specifically, the fact that he handbilled the day before his so-
called misconduct. The fact that the other employee who
handbilled with him was not disciplined is not persuasive
that the disciplining of Keene, therefore, must have been le-
gitimate. Applying the analysis of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), I must and do conclude that the written
warning to Keene was a violation of Section 8(a)(3) of the
Act since even if Keene violated a rule of the workplace by
being away from his work station he would not have been
disciplined but for his protected concerted activity.
6. Respondent’s participation in efforts to
decertify the Union
As noted above the employees went on strike in April
1988, which was some 2 months after the Union was cer-
tified as the collective-bargaining representative of the em-
ployees. Approximately 40 of Respondent’s 50 employees
participated in the strike.
Replacement employees were hired. They were offered
permanent employment by Respondent and when the striking
employees made an unconditional offer to return to work in
August 1988, they were brought back and added to the com-
plement of strike replacement employees. The result was that
the number of Respondent’s production and maintenance em-
ployees virtually doubled in size between April and August
1988 from 51 employees to 95 employees.
It is alleged that Respondent unlawfully assisted and en-
couraged employee Dewey Knuckles to circulate and file a
decertification petition.
Knuckles was hired in May 1988 as a strike replacement
employee. In August 1988, Knuckles signed a decertification
petition, and evidentially, because his name was first on the
petition (which Knuckles had not prepared or circulated) a
Board agent called Knuckles at Respondent’s facility and a
supervisor brought Knuckles to the phone at which time the
Board agent told Knuckles that the petition was untimely
since filed only half way though the certification year.
In August 1988, Supervisor Bill Fullen and newly minted
Supervisor Teddy Monk told Knuckles that if he and the
other employees did not get rid of the Union Knuckles would
lose his job when the striking employees returned to work
due to Knuckles’ job classification and seniority vis a vis the
returning employees.
Knuckles circulated a second decertification petition in
August 1988, which was also returned by the Board as un-
timely.
Thereafter, Supervisor Bill Fullen told Knuckles to call the
Board to find out what to do next. The Board advised
Knuckles that a petition to decertify should be filed at the
end of the certification year.
In January 1989 Fullen told Knuckles to bring the decerti-
fication petition to the plant and circulate it among the em-
ployees. Knuckles was reminded again by Fullen that if the
Union was not gotten out of the facility Knuckles, because
of his lack of seniority and job classification, could lose his
job.
In late January 1989, at the plant Fullen asked Knuckles
where the decertification petition was. Knuckles told him at
home and Fullen directed him to get it and send it to the
Labor Board right away, because the union representative
had apparently agreed to a contract proposal offered by Re-
spondent.
Knuckles called his wife at home and told her to bring the
petition to the plant right away. Karen Knuckles, Dewey
Knuckles’ wife, did so. When she arrived at the plant Super-
visor Bill Fullen told Dewey Knuckles where to get the ad-
dress for the Labor Board from in the cafeteria and instructed
Karen Knuckles to go to the post office and mail the petition
to the Labor Board. He instructed her to make sure that the
envelope containing the petition was postmarked that date.
Karen Knuckles did as instructed.
I found Dewey and Karen Knuckles to be very credible
witnesses. I found Fullen to be less than totally credible.
Fullen claims he merely told Knuckles when Knuckles asked
for the phone number and address of the Labor Board that
he could not help Knuckles in any way, and all information
Knuckles needed he could get off the employee bulletin
board. Fullen claims he told Karen Knuckles to buy an enve-
lope and stamps at the post office but claims he did not
know what Karen Knuckles was going to mail. I do not be-
lieve him.
Since I credit Dewey and Karen Knuckles, it is clear that
Respondent, through Supervisor Bill Fullen, unlawfully en-
couraged and assisted in the filing of a decertification peti-
tion in violation of Section 8(a)(1) of the Act. See Hancock
Fabrics, 294 NLRB 189 (1989). Fullen encouraged Knuckles
in the decertification effort by telling him that if the Union
was not decertified he could lose his job and his efforts on
the night of January 30, 1989, with respect to both Dewey
and Karen Knuckles assisted in the filing of decertification
petition.
Interestingly enough, this third petition was also untimely
and by the time the certification year ended Respondent and
the Union had agreed to a 1-year collective-bargaining agree-
ment.
In April 1989, Dewey Knuckles joined the Union and
withdrew the January 1989 petition. It is alleged that Knuck-
265VIRGINIAN METAL PRODUCTS
les was later harassed and finally suspended from work be-
cause he switched and became prounion. He was later part
of a permanent layoff at the plant and no longer works for
Respondent.
C. Alleged Unfair Labor Practices Between the Time
the Parties Signed a 1-year Contract in February 1989
and the Time a 3-year Contract Was Signed in
February 1990
Subsequent to the signing of the 1-year collective-bar-
gaining agreement between the parties which covered the pe-
riod February 13, 1989, to February 13, 1990, it is alleged
that Respondent committed a number of unfair labor prac-
tices to include threats of plant closure, termination, and lay-
off, and unlawful harassment of union supporter Dewey
Knuckles, a 5-day suspension of union supporter Dewey
Knuckles, three separate layoffs, promising an employee a
good job recommendation if he withdrew a grievance, and
the discharge of union supporter Mike Hagy.
1. Threats of plant closure and layoffs
There was a grievance and arbitration closure in the col-
lective-bargaining agreement signed on February 13, 1989. A
number of grievances were filed.
On April 25, 1989, Shop Steward Steven Richardson, who
has worked for Respondent since 1977 and still works for
Respondent, met with Plant Superintendent Jim Boyd and
Supervisor Scott Spivey. A second shop steward, Wayne Pin-
ion, was present with Richardson. The four men met in con-
nection with some grievances. Boyd told Richardson and
Pinion that ‘‘Doc’’ Stanton, the owner of Respondent, did
not like working with a third party (the Union) and might
just padlock the place or close the plant. I credit Richardson
and Pinion. This is a threat in violation of Section 8(a)(1)
of the Act. See Tomco Construction Co., 275 NLRB 1
(1985).
On June 6, 1989, Richardson met with Boyd and Spivey
concerning a grievance and Boyd said that with all the
money spent by Respondent on grievances it might not be
able to pay its other bills and might go out of business. I
credit Richardson’s testimony. This is also a threat in viola-
tion of Section 8(a)(1) of the Act.
Again on June 6, 1989, Boyd told Union President and
employee Mike Hart when again discussing the cost of griev-
ance processing that next Friday may be like last Friday due
to excessive costs of grievances. The ‘‘last Friday’’ was June
2, 1989, when there was a permanent lay off of the second
shift which is discussed below.
Boyd admitted that on two or three occasions he did com-
ment on the cost of grievance processing but never threat-
ened plant closure or layoffs. I credit Richardson, Pinion, and
Hart and find that Respondent, by Plant Superintendent Jim
Boyd, did threaten plant closure and layoffs if the Union per-
sisted in exercising its right under the collective-bargaining
agreement to pursue grievances.
I note that the Union first proposed in order to save money
that some grievances be combined for arbitration. Respond-
ent originally refused to do this but later changed its mind.
2. Harassment and 5 days’ suspension of
Dewey Knuckles
Dewey Knuckles is the same employee discussed in con-
nection into the allegation that Respondent, through Super-
visor Bill Fullen, encouraged and assisted in the filing of a
decertification petition. An allegation I sustain. See section
III,B,6, above.
Knuckles was originally hired in May 1988 as a strike re-
placement employee. When the strike ended in August 1988,
and the striking employees returned to work, Respondent
started up a second shift composed mostly of strike replace-
ment employees. Knuckles worked on the second shift.
In April 1989 Knuckles and fellow strike replacement em-
ployee Daniel Harmon both joined the Union. Shortly there-
after they told Supervisors Larry Clark and Tom Lawson that
they had done so.
Thereafter, Dewey Knuckles claims and it is corroborated
by fellow employee Daniel Harmon that Supervisor Bill
Fullen kept a close eye of Knuckles at work. Fullen con-
ceded that there were occasions when he would be outside
the plant and in a position to observe Knuckles at work.
The evidence of Fullen keeping an eye on Knuckles or
harassing him by closely monitoring Knuckle’s activity at
work after he joined the Union is so week that I find no vio-
lation of the Act. It would be absurd to require a supervisor
to make sure you do not look at or watch a particular em-
ployee too much while the employee is at work.
Knuckles was active in the aborted decertification effort.
In April 1989, he joined the Union and on May 24, 1989,
he was suspended from work without pay for 5 days for
horseplay and for threatening another employee. Knuckles,
who I find credible, is a big husky man and one, who I judge
from his demeanor on the stand, has something of a temper
and doesn’t like to fooled with. While there was credible evi-
dence that there had been horseplay at Respondent’s facility
in the past and no one had been disciplined, there is no evi-
dence that any employee had threatened another employee
and not been disciplined.
Knuckles was engaged in horseplay with two other em-
ployees, i.e., Sherry Justine and Claude Mitchell. Following
the horseplay, which involved throwing water on one an-
other, Knuckles, by his own account, sought out Mitchell.
According to Knuckles’ testimony he weighs 240 lbs. and
Mitchell is a ‘‘little man.’’ I never saw Mitchell since he
never testified. Knuckles and Mitchell argued. Knuckles con-
cedes that Sherry Justine was in a position to overhear part
of the argument. Both Mitchell and Justine told management
that Knuckles threatened Mitchell.
It is my conclusion that Respondent relied on the state-
ments of Mitchell and Justine and disciplined Knuckles with
a 5-day suspension for engaging in horseplay and threatening
Mitchell, and that Respondent would have done the same
thing even if Knuckles had not joined the Union. See Wright
Line, supra.
On May 26, 1989, 2 days after Knuckles was told that he
was suspended Knuckles wrote to the National Labor Rela-
tions Board, and asked to withdraw the decertification peti-
tion he had filed several months earlier.
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The rate of production—Respondent produces truck bodies—was
33 truck bodies in January 1989, 60 in February, 83 in March, 76
in April, 68 in May, 59 in June, 30 in July, and 33 in August. Fifty
truck bodies per month was considered good production.
3. Layoffs of June 2 and July 13 and 20, 1989
There were three layoffs of employees at Respondent’s fa-
cility during the term of the 1-year collective-bargaining
agreement signed February 13, 1989.
The first layoff was a permanent layoff of the second shift
on June 2, 1989. A total of 15 employees were premanently
laid off but 1 was later recalled. As noted above when the
striking employees returned to work from the strike in Au-
gust 1988, Respondent added their number to the strike re-
placement employees almost doubling the number to employ-
ees from 51 in April 1988 to approximately 95 employees
in August 1988.
Suffice it to say production did not go up. The rate of pro-
duction with almost double the work force stayed about the
same.
Production records reflect that in June 1989, the rate of
production dropped. The work was seasonal and a drop in
production was not unexpected at this time of the year. Re-
spondent had a reputation over the years according to numer-
ous witnesses of not laying off employees when work was
slow. A number of witnesses credibly testified that when
work was slow in the past, Respondent kept the men on and
found so-called ‘‘make work’’ jobs for them to do. However,
evidence at the hearing also demonstrates that there had been
4-day workweeks instead of 5-day workweeks in the past
when things were slow. In addition, there had been Christ-
mas shutdowns when work was slow. Indeed there was a
Christmas shut down in 1988.
Respondent claims it laid off the second shift because of
economic reasons and not because the employees engaged in
protected concerted activity or to undercut support for the
Union.1
The General Counsel and the Union point out that the sec-
ond shift was laid off by an employer who generally did not
lay off employees because Dewey Knuckles and some other
second-shift employees were joining the Union and Respond-
ent felt it could not count on their support in getting rid of
the Union in the event of another decertification effort.
I am persuaded that the General Counsel has not proved
that the layoff was unlawfully motivated. I find the economic
motivation for the layoff to be more persuasive. The June 2,
1989, was not unlawful.
On July 13 and 20, 1989, there were temporary layoffs.
The July 13, 1989 layoff of 18 employees was for 10 days,
however, many of the employees were recalled before the
full 10-day period expired. On July 20, 1989, there was a 3-
day layoff of 14 employees.
Respondent claims that the two temporary lay offs were
due to lack of work and are supported in this contention by
production records which reflect a drop in production.
The General Counsel and Union claim that the sections of
the work force more highly unionized were laid off and other
sections less heavily unionized were not laid off. The two
temporary layoffs, however, impacted on both union member
employees and nonunion member employees.
In July and August 1989, the production rate was 30 and
33 truckbeds, respectively, whereas even General Counsel’s
witnesses claimed that good production was 50 to 80 beds
per month.
Respondent did have a history of avoiding layoffs with
‘‘make work’’ jobs, etc., but there is no evidence that it ever
came up with so-called ‘‘make work’’ jobs in order to avoid
a layoff when it had double the number of employees or
close to double for many, many months. In addition, there
had been as noted above periods of lack of work when Re-
spondent put the employees on a 4-day workweek, rather
than a 5-day workweek. As further evidence that there was
a lack of work the employees voluntarily agreed to shut
down the plant from September 1 to 11, 1989.
I conclude that Respondent was economically motivated
when it laid off employees temporarily on July 13 and 20,
1989, and was not unlawfully motivated. Hence, I conclude
the Act was not violated by the layoffs.
4. Respondent’s conditioning of a good job
recommendation on an employee’s withdrawal
of a grievance
Employee Daniel Harmon was a strike replacement em-
ployee hired in April 1988. He worked second shift and was
laid off at the time of the June 2, 1989 layoff.
He was a steel fabricator and there were some opening for
aluminum welders. He had previously (before the layoff) ap-
plied for one of the openings which would have required
some additional training. He was not one of the employees
accepted. After he was laid off he filed a grievance over not
being selected as an aluminum welder. This is not alleged as
an unfair labor practice.
After the layoff Harmon applied for a position with the
Norfork and Southern Rail Road. He called Supervisor Sam
Altizer and asked for a job reference. Altizer told Harmon
that Respondent would give him a good job recommendation
if he dropped his grievance.
Harmon called Mike Hart, the president of the Local, and
told him about his conversation with Altizer and told Hart
he wanted to withdraw the grievance.
Although Altizer denied he conditioned the job rec-
ommendation on withdrawal of the grievance it is clear to
me—since I find Harmon and Hart very credible—that he
did do so. This was a violation of Section 8(a)(1) of the Act.
The law is clear that you cannot discriminate against an em-
ployee for filing a grievance and the implied threat to with-
hold a good job recommendation because the employee filed
a grievance is discrimination.
5. Discharge of Mike Hagy
Mike Hagy began his employment with Respondent in
1985. He was prounion and wore a prounion button at work
during the organizing campaign. He was on sick leave with
an injured back when the April 1988 strike began. When his
sick leave ended he joined the strike.
In January 1989 Hagy reinjured his back on the job. He
secured a note from his doctor that he should perform only
light duty work. He returned to work, presented the doctor’s
slip, and was told that there was no light duty work available
for him to do. He went home.
Every month thereafter Hagy, whose back problem contin-
ued, called into the plant to see if there was any light duty
work for him to do. He was told there was not any.
267VIRGINIAN METAL PRODUCTS
He was never told that it he was out of work for a certain
period because of an injury or illness that he could or would
be fired.
On December 15, 1989, an arbitration hearing was held.
A union attorney was present for the Union and Plant Super-
intendent Jim Boyd was present for Respondent. Boyd was
accompanied by Lawrence E. Morhous, Respondent’s attor-
ney.
Mike Hagy, who was still out of work with his injured
back, was a union witness at the arbitration hearing. On the
day of the arbitration, he exchanged pleasantries with Jim
Boyd who inquired about his injured back, but did not tell
or even hint to Hagy that he was going to be discharged be-
cause of his prolonged absence from work.
Several days later Mike Hagy picked up a certified letter
from Respondent, postmarked December 18, 1989 (3 days
after the arbitration hearing), advising Hagy that he was dis-
charged effective December 15, 1989. The letter was dated
December 15, 1989. The ground for termination was Hagy’s
‘‘absence from work since January 31, 1989.’’
Respondent claims through Plant Superintendent Jim Boyd
and Attorney Lawrence Morhous, who testified without ob-
jection from the Union or General Counsel, that Hagy’s dis-
charge was decided on prior to the arbitration hearing of De-
cember 15, 1989, although the letter was not sent out to
Hagy until after December 15, 1989. Respondent claims it
discharged Hagy because of a Virginia statute, effective July
11, 1989, which made it unlawful to discharge an employee
during the first 6 months of an absence caused by a compen-
sable injury or illness under the Virginia Worker’s Com-
pensation Act. The Virginia statute did not make it lawful or
unlawful to discharge subsequent to a 6-months absence. Re-
spondent and its attorney corresponded about this Virginia
statute in June 1989, yet took no action to terminate Hagy
until after Hagy testified at the arbitration hearing. It seems
to me, at least by a preponderance of the evidence, that Hagy
was discharged because he joined the Union, participated in
the strike, and testified against Respondent at the arbitration
hearing. This is a violation of Section 8(a)(3) of the Act.
The remedy for this violation is that Respondent should
offer Hagy reinstatement and pay him back pay with interest
from the time he would have been able to return to his reg-
ular job, which would be some date subsequent to December
15, 1989, obviously, since he was still out on injury as of
that date. Indeed, he was still injured as of the date he testi-
fied before me, i.e., May 24, 1990, but this is a matter best
left to the compliance stage of this litigation.
It is not alleged that Respondent violated the Act in failing
to bring Hagy back to work in a light duty capacity but evi-
dence was introduced that other employees had been given
work assignments, when sick or injured, that only involved
light duty work which Hagy could have done, e.g., Robert
Simpson, Donny Reynolds, Norell Van Dyke, and Buddy
Messick. Indeed, it was an arbitration involving Buddy
Messich where Hagy was a witness. There was no evidence
that Hagy is so injured that he could never return to work
and perform his regular duties.
6. Union information request for oral warnings
A union can request an employer to furnish it with certain
information. If an employer refuses to turn over the informa-
tion, the employer commits an unfair labor practice in viola-
tion of Section 8(a)(5) of the Act if the information sought
by the union is necessary and relevant to the union in car-
rying out its collective-bargaining responsibilities.
On February 24, 1989, the Union wrote to Respondent and
requested names and copies of all disciplining warnings, oral
or written, placed in employees’ files between October 1,
1988, and February 13, 1989.
The Union, of course, had represented the employees since
February 1989 and represented the employees for the period
covered by the information request.
On March 28, 1989, Respondent furnished the names and
copies of written warnings for seven employees between Oc-
tober 1, 1988, and February 13, 1989. Respondent refused to
turn over information on oral warnings on the grounds that
the contract entered into on February 13, 1989, in article X
provided that the Union was to receive copies of written
warnings and said nothing about the Union’s right to copies
of oral warnings.
Clearly the Union as collective-bargaining representative
was entitled to copies of written and oral warnings of em-
ployees for the period requested, which predates the collec-
tive-bargaining agreement.
Respondent had a progressive disciplinary system in effect
during the period in question, i.e., October 1, 1988, to Feb-
ruary 13, 1989, and the Union should have been furnished
information on both oral and written discipline in order for
it to determine if the progressive disciplinary system was op-
erating as it should.
It is obvious in the extreme that it is necessary and rel-
evant to a Union’s duty to represent employees to ascertain
if the employees are in disciplinary difficulty at work.
Respondent’s refusal to furnish this information violated
Section 8(a)(5) of the Act. See Washington Gas Light Co.,
273 NLRB 116 (1984).
7. Respondent’s refusal to provide information on
401(k) retirement plan
In the 1-year contract executed on February 13, 1989,
there was a provision for a 401(k) retirement plan for Re-
spondent’s employees.
The contract provided at article XXVIII as follows:
NEW RETIREMENT/SAVINGS PLAN
Upon approval from the Internal Revenue Service
and ratification of the labor agreement, Virginian Metal
Products Co., Inc. will begin a new 401(k) Retirement-
Savings Plan. All regular, full-time employees will be
eligible to participate after the plan has been approved
by the IRS and implemented.
On February 21, 1989, Union Attorney and Chief Nego-
tiator Irwin A. Cutler Jr. wrote to Respondent. Cutler wrote
‘‘Please advise me of the status of the Company’s step to
implement a 401(k) Retirement/Savings Plan, as provided in
Article XXVIII of the contract, and the terms of the plan.’’
Respondent wrote to the Union’s attorney on February 25,
1989, and advised that Respondent was considering three
proposals for a 401(k) and without further notice to the
Union Respondent posted a notice on the employees bulletin
board advising the employees—but not their collective-bar-
gaining representative—that there would be two meetings on
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
March 21, 1989, at 2 and 3:30 p.m., where Respondent
would explain what a 401(k) plan was, answer questions
about it, and gauge the number of employees interested in
participating.
At the March 21, 1989 meeting, a woman from a Virginia
bank explained the 401(k) plan to the employees. was not
advised of this meeting before hand.
Did Respondent violate the Act when it bypassed the
Union and held a meeting with the employees explaining the
terms and conditions of the 401(k) plan Respondent was put-
ting into effect. Clearly a 401(k) pension plan is a most im-
portant term and condition of employment. In the contract
the Union did not waive any right it might have to negotiate
with Respondent regarding the particulars of the 401(k) plan
selected by Respondent. Accordingly, Respondent violated
Section 8(a)(5) when it bypassed the Union, went directly to
the employees without prior notice to the Union, and told the
employees what the 40l(k) plan was that Respondent se-
lected. See Toffenitti Restaurant Co., 136 NLRB 1156
(1962), enfd. 311 F.2d 219 (2d Cir. 1962).
CONCLUSIONS OF LAW
1. The Respondent, Virginian Metal Products Co., Inc., is
an employer engaged in commence within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union, International Ladies’ Garment Workers’
Union, Southern District Council, Upper South Department,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. When Respondent failed and refused to turn over infor-
mation on what profit, if any, Respondent made in its fiscal
years 1986, 1987, and 1988 to the Union when requested by
the Union in connection with 1988 profit sharing, Respond-
ent violated Section 8(a)(1) and (5) of the Act.
4. When Respondent failed to raise employee Richard
Webb’s hourly rate to top pay from September 1988 to Feb-
ruary 1989 because of his protected concerted activity, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
5. When Respondent denied access to the plant for a union
designated industrial hygienist to inspect the plant air ventila-
tion system it violated Section 8(a)(1) and (5) of the Act.
6. When Respondent issued a written warning to employee
Ronald Keene because he engaged in protected concerted ac-
tivity, it violated Section 8(a)(1) and (3) of the Act.
7. When Respondent encouraged and assisted employees
to decertify the Union Respondent violated Section 8(a)(1) of
the Act.
8. When Respondent threatened to close the plant and lay
off employees because they filed grievances with the Union
which the Union pursued, Respondent violated Section
8(a)(1) of the Act.
9. When Respondent conditioned a good job recommenda-
tion on behalf of a laid-off employee on his withdrawing a
grievance he had previously filed, Respondent violated Sec-
tion 8(a)(1) of the Act.
10. When Respondent discharged employee Mike Hagy
because he engaged in protected concerted activity and testi-
fied for the Union at an arbitration hearing, Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
11. When Respondent failed and refused to turn over to
the Union at its request evidence of oral warnings issued to
employees between October 1, 1988, and February 13, 1989,
Respondent violated Section 8(a)(1) and (5) of the Act.
12. When Respondent held a meeting with employees
about the details of a 401(k) pension plan without first giving
prior notice and opportunity to the Union to bargain, Re-
spondent violated Section 8(a)(1) and (5) of the Act.
13. The unfair labor practices of the Respondent described
above affect commence within the meaning of Section 2(6)
and (7) of the Act.
[Recommended Order omitted from the publication.]