Comau, Inc., (2010)

Comau, Inc. and Automated Systems Workers Local 1123, A Division of Michigan Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America. Case 7–CA–52106

November 5, 2010

DECISION AND ORDER

By Members Becker, Pearce, and Hayes

On May 20, 2010, Administrative Law Judge Paul Bogas issued the attached decision.[1] The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief to the answering brief.[2] The General Counsel filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief.[3]

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[4] and conclusions, except as set forth below,[5] to adopt his remedy as modified,[6] and to adopt the recommended Order as modified below.[7]

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Comau, Inc., Southfield, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following for paragraph 2(e).

   “(e) Within 14 days after service by the Region, post at its facilities located at 20950, 21000, and 21175 Telegraph Road, Southfield, Michigan; 42850 West Ten Mile Road, Novi, Michigan; and 44000 Grand River, Novi, Michigan, copies of the attached notice marked “Appendix.”[8] Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized 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. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed any of the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at the closed facilities at any time since March 1, 2009.”

   Dated, Washington, D.C. November 5, 2010

   Craig Becker, Member

   Mark Gaston Pearce, Member

   Brian E. Hayes, Member

   (seal) National Labor Relations Board

   Sara Pring Karpinen, Esq., for the General Counsel.

   Willie Rushing, Pro Se, for the Petitioner.

   Thomas G. Kienbaum, Esq. and Theodore R. Opperwall, Esq. (Kienbaum, Opperwall, Hardy & Pelto, P.L.C.), of Birmingham, Michigan, for the Charging Party.

   DECISION

   Statement of the Case

   Paul Bogas, Administrative Law Judge. This case was tried in Detroit, Michigan, on November 17, 18, and 19, 2009. The Automated Systems Workers Local 1123, A Division of Michigan Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America (the Union) filed the original charge in case 7–CA–52106 on May 19, 2009, and the amended charge on July 28, 2009. The Regional Director of Region 7 of the National Labor Relations Board (the Board) issued the Complaint on August 28, 2009. The Complaint alleges that Comau, Inc. (the Respondent or the Company), has failed to bargain in good faith in violation of section 8(a)(5) and (1) of the Act by: making unilateral changes to the healthcare benefits provided to bargaining unit employees without the Union’s consent and without bargaining to a good-faith impasse; failing to cloak its representatives with the authority to make proposals or enter into binding agreements; submitting written proposals to the Union without attempting to gain authority to do so; and introducing a new demand that the Union absorb the Respondent’s liability for previously accrued health insurance “trailing costs.”

   On April 14, 2009, Willie Rushing, an individual, filed the petition in case 7–RD–3644 seeking an election to determine whether the Union should be decertified as the exclusive collective-bargaining representative of unit employees. The Regional Director has determined that substantial and material issues of fact exist as to whether the unfair labor practices alleged in case 7–CA–52106 bear a causal relationship to the employee disaffection reflected in the filing of the decertification petition. The Regional Director ordered that the hearings on cases 7–CA–52106 and 7–RD–3644 be held at the same time and place and requested that, in addition to serving as the administrative law judge in case 7–CA–52106, I perform the functions of hearing officer in case 7–RD–3644. As requested by the Regional Director, I conducted the consolidated hearing and, as further requested by the Regional Director, I directed that, upon the closing of the record, case 7–RD–3644 be severed from case 7–CA–52106, and a true and complete copy of the transcript and exhibits be forwarded to the Regional Director. My decision does not include a determination regarding case 7–RD–3644.

   On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following findings of fact and conclusions of law.

   Findings of Fact

   i. jurisdiction

   The Respondent, a corporation with an office in Southfield, Michigan, and various plants in the metropolitan Detroit area, has been engaged in the design, sale, and installation of automated industrial systems. In conducting those business operations the Respondent annually derives gross revenues in excess of $1,000,000 and sells goods and provides services valued in the aggregate in excess of $50,000 from its metropolitan Detroit plants and offices directly to customers. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

   ii. alleged unfair labor practices

   1. Background Facts

      The Respondent, a division of the Fiat automotive company, builds assembly lines and specialty tools for the automobile industry. Since at least 2001, the Automated Systems Workers (ASW) has represented a bargaining unit1 of the Respondent’s production employees, maintenance employees, field service employees, inspectors, and machinists.2 There were over 200 employees in the unit as of early 2009. In about March 2007, the ASW affiliated with the Michigan Regional Counsel of Carpenters (MRCC), United Brotherhood of Carpenters and Joiners of America. The most recent collective-bargaining agreement between the Union and the Respondent was effective by its terms from March 7, 2005, until March 2, 2008. Prior to the expiration date, the parties entered into an agreement that extended the effective period of the contract indefinitely, but gave either party the right to cancel the extension with 14 days notice.

      Officials of the Respondent and the Union began negotiations for a successor contract in January 2008. The Respondent’s chief negotiator was Edward Plawecki–vice-president and general counsel of the Company.3 Fred Begle, the Respondent’s director of labor relations was also a primary spokesperson at the negotiating sessions, and led the Respondent’s bargaining committee when Plawecki was not present.4 The other members of the Respondent’s bargaining committee were Jim Sheldon (finance department), Tim Withey (manufacturing department) and Brad Pelachyk (purchasing department). Ozell Freeman and Bill Poland attended some of the early negotiating sessions, but both left the Respondent in early 2008, and neither attended any sessions after April 2008. Lisa Minjares (human resources) attended meetings of a subcommittee on healthcare, and on February 20, 2008, attended what may have been a meeting of the full committee. The Union’s chief negotiator was Peter Reuter, an employee of the Union. Other members of the Union negotiating committee were Darrell Robertson (president of the Union local), Daniel Malloy (vice president of Union local), David Baloga (recording secretary of the Union local), Harry Yale (treasurer of the Union local), Jeff Brown (trustee of Union local), and Lonnie McCorvey.5 The meetings continued in 2008 and 2009, although the parties suspended negotiations for much of the summer of 2008 while the Respondent attempted to reach a contract with a union that represented another group of employees.

      Early in the 20082009 negotiations with the Union, Plawecki stated that the new contract would have to beconcessionary and that the Respondent would not provide the employees with anything that increased the Companys costs unless the employees provided the Company with savings in return. According to Plawecki, this meant that any new agreement would have to becost-neutral or create savings as compared to the expired collective-bargaining agreement. Tr. 358359. Among the major concessions sought by the Respondent were reductions in the employees company-provided benefits for hospitalization, medical treatment, dental care, and vision care (referred to collectively in this decision ashealthcare benefits). Under the previous collective-bargaining agreement, incumbent unit employees were not required to pay any premiums for their company-provided healthcare coverage. Although the Respondent used aself-insured health plan, the coverage was provided through Blue Cross/Blue Shield...