Howard Immel, Inc., 1162 (1995)
Howard Immel, Inc. and International Union of
Operating Engineers Local 139, AFL-CIO.
Case 30-CA-12242
July 20, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND TRUESDALE
On March 6, 1995, Administrative Law Judge Michael O. Miller issued the attached decision. The General Counsel filed limited exceptions and a supporting brief. The Respondent filed a response and cross-exceptions, and the General Counsel filed an answering 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 brief and has decided to affirm the judge's rulings, findings, and conclusions, as modified below, and to adopt the recommended Order, as modified and set forth in full below.1
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At the hearing, the Respondent's president admitted that the Respondent, consistent with its April 8, 1993 letter to the Laborers, unilaterally changed work-assignment practices by reassigning the operation of its forklifts and skid steer loader (Bobcat) from the Operating Engineers Local 139 unit to the Laborers unit. The General Counsel then amended the complaint to allege that the work-assignment change violated Section 8(a)(5) and (1). The issue was fully litigated. The judge found, in section II,C of his decision, that the Respondent changed its work-assignment practices by reassigning Operating Engineers' unit work to the Laborers unit. He failed, however, to conform clearly his Conclusions of Law, remedy, recommended Order, and notice to his factual findings. The General Counsel excepts to the judge's failure to conclude explicitly that Respondent unilaterally changed work-assignment practices. We grant the General Counsel's exception and clarify that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing its work-assignment practices. We will modify the judge's Conclusions of Law, his remedy, recommended Order, and notice accordingly.
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The complaint alleged and the judge found, in the sixth paragraph of section II,D of his decision, that the Respondent violated Section 8(a)(5) and (1) by failing to provide Local 139 with an opportunity to bargain about the effects on unit employees of the Respond-ent's sale of the Grove TM180 crane.2 The judge confirms this finding in his Conclusion of Law 3. In paragraph 1(a) of his recommended Order, however, the judge required the Respondent to cease and desist from ''[m]aking decisions to subcontract the work of unit employees without providing Local 139 with notice and the opportunity to bargain over the effects of such decisions. . . .'' (Emphasis added.) By phrasing the Order in this language, the judge has given the incorrect impression that the violation found was a failure to bargain about the decision to subcontract. In fact, the violation was a failure to bargain about the effects of the decision to sell the crane, and one such effect of that decision was the subcontracting of the work. In order to clarify this matter, we will modify judge's remedy, recommended Order, and notice.
AMENDED CONCLUSIONS OF LAW
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Substitute the following for the judge's Conclusion of Law 3.
''3. By changing work-assignment practices without providing Local 139 with notice and the opportunity to bargain about this change; by selling its crane without providing Local 139 with notice and the opportunity to bargain over the effects of the decision to sell it; by altering the rates of pay and level of benefits of the employees in the unit described above without providing Local 139 with notice and an opportunity to bargain concerning such actions; by direct dealing with unit employees; and by withdrawing recognition from Local 139 as the exclusive representative of the employees in that unit and refusing to meet and bargain with the Union for a new collective-bargaining agreement, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.''
AMENDED REMEDY
Having found that the Respondent has engaged in certain unfair labor practices within the meaning of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has violated Section 8(a)(5) and (1) by unilaterally changing work-assignment practices since April 8, 1993, we shall order that the Respondent shall, on request of the Union, re-
1 The Respondent has excepted only to that portion of the judge's Order that, according to the Respondent, ''requires the Respondent to notify Local 139 prior to subcontracting.'' We find no merit in the Respondent's exception. In addition, we emphasize that although the Respondent's response to the General Counsel's exceptions purports to ''reserve[] its right to appeal any final order of the Board to the 7th Circuit Court of Appeals,'' the Respondent has failed to place any other unfair labor practice finding before the Board by way of properly filed exceptions. See Sec. 10(e) of the Act; Secs. 102.46(b) and 102.48(a) of the Board's Rules and Regulations.
2 As the judge found, the General Counsel does not allege that the Respondent had an obligation to bargain over the decision to sell the crane.
store the work-assignment practices that were in effect before that date, and make whole unit employees for any losses suffered as a result of its unilateral action. We shall also order the Respondent to rescind any outstanding agreements or contracts, written or oral, to subcontract crane operations as an effect of its decision to sell its crane, to the extent that any such agreements or contracts involve the leasing of the services of crane operators to perform Operating Engineers' unit work. In addition, we shall order the Respondent to make whole unit employees by making all required fringe benefit contributions that have not been made since May 1993, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979),3 and by reimbursing the employees and individuals for any expenses incurred from its failure to make the required contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). All payments to employees are to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the Respondent, Howard Immel, Inc., Green Bay, Wisconsin, its officers, agents, successors, and assigns, shall
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Cease and desist from
(a) Changing work-assignment practices without providing International Union of Operating Engineers Local 139 with notice and the opportunity to bargain about such changes; failing to provide Local 139 with notice and the opportunity to bargain over the effects of its decision to sell its crane; unilaterally altering the rates of pay and level of benefits of unit employees without providing Local 139 with notice and an opportunity to bargain concerning such action; dealing directly with unit employees; and withdrawing recognition from Local 139 as the exclusive representative of unit employees and refusing to meet and bargain with that Union for a new collective-bargaining agreement.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
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Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with Local 139 as the exclusive representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an agreement is reached, embody the understanding in a signed agreement:
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