Cadence Innovation, LLC, 703 (2008)

Docket Number:09-CA-43672
 
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Cadence Innovation, LLC and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO. Cases 9–CA–43672, 9–CA–43673, and 9–CA–43674

January 16, 2009

DECISION AND ORDER

By Chairman Schaumber and Member Liebman

On September 17, 2008, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent filed exceptions and the General Counsel filed an answering brief and limited cross exceptions.

The National Labor Relations 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,1 and conclusions2 and to adopt the recommended Order.3

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Cadence Innovation, LLC, Troy, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Naima R. Clarke, Esq., for the General Counsel.

Craig M. Stanley, Esq. (Butzel Long, P.C.), of Detroit, Michigan, for the Respondent.

Ava Barbour, Esq., of Detroit, Michigan, for the Charging Party.

DECISION

Statement of the Case

Paul Bogas, Administrative Law Judge. I heard these consolidated cases in Detroit, Michigan, on March 25, 26, 27, and 28, 2008. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL–CIO (the Union) filed the initial charge on March 16, 2007, the second charge on April 27, 2007, and the third charge on May 4, 2007. The Union filed amended charges in all three cases on May 25, 2007.1 The Regional Director for Region 9 of the National Labor Relations Board (the Board) issued the order consolidating cases and the consolidated complaint on November 21, 2007. The complaint alleges that Cadence Innovation, LLC (the Respondent) discriminated in violation of Section 8(a)(3) and (1) of the Act by discharging employee Tawana Merriewether and disciplining, suspending, and discharging employee Shonttaye Thomas because of their union support and protected activities. The complaint also alleges that the Respondent violated Section 8(a)(1) by threatening to discharge employees because of their union activities. The Respondent filed a timely answer in which it denied committing any of the violations alleged.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Union, and the Respondent, I make the following

findings of fact

i. jurisdiction

The Respondent, a corporation, with its headquarters in Troy, Michigan, and offices and places of business throughout the State of Michigan, manufactures and sells automotive parts. In conducting these operations during the 12-month period preceding issuance of the complaint, the Respondent purchased and received at its Michigan facilities goods valued in excess of $50,000 directly from points outside the State of Michigan. 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

A. Background

The Respondent manufactures automotive parts at facilities in Michigan, including one known as the Masonic plant and another known as the Groesbeck plant.2 In early 2007, the Union initiated an effort to become the collective-bargaining representative of employees at a number of the Respondent’s facilities, including the Masonic and Groesbeck plants. The discharges of Merriewether and Thomas took place at the Masonic facility and the Respondent’s alleged threat is purported to have been made at the Groesbeck facility.

The Masonic plant has between 300 and 600 hourly employees.3 Those employees are organized into approximately six departments, including the IP line (where dashboards and door panels are assembled) and molding (where components are made for use by the IP line). Merriewether worked as a production operator on the IP line and Thomas as a hi-lo driver4 in the molding department.

Jennifer Mort, the plant manager for the Masonic facility, testified that the Respondent opposed the union effort. Shortly after the Union began its campaign, the Respondent retained a labor consulting firm—Russ Brown and Associates—to help the company defeat the Union. In February 2007, Loren Clyburn, an employee of Russ Brown and Associates, began to campaign against the Union at the Masonic plant. He was present at the Masonic plant 5 days a week and would walk around the facility’s work areas talking to employees. He also held a series of group meetings during which he showed videotapes to employees. His objective was to disseminate negative information about unionization.

B. Merriewether

1. Employment and union activities

Merriewether began working as a production operator at the Masonic plant’s IP line on May 3, 2006, and was terminated 10 months later on March 15, 2007. She started as a temporary employee and during her period of temporary employment received a 45-day review rating of “above average,” and a 90-day review rating that fell between “above average” and the highest possible rating of “excellent.” In early November, the Respondent offered Merriewether the production operator position on a permanent basis, something it did for temporary employees who had performed well. Merriewether accepted and became a permanent employee on November 6, 2006. At the time the Respondent made her employment permanent, the Respondent said nothing to Merriewether indicating that, despite having already worked at the Masonic facility for 6 months, Merriewether would be considered a probationary employee. Merriewether was informed that she would receive a pay raise upon the successful completion of 90 days as a permanent employee. On February 5, 2007—90-calendar days after her employment became permanent—Merriewether received the raise.

Merriewether did not work every day between the time she became a permanent employee and the time she received the 90-day pay raise. During one period the Respondent suspended operations at the Masonic facility and temporarily laid off all the employees there, including Merriewether. Merriewether’s layoff lasted from January 8 to 26, 2007. During her first 90 days of permanent employment, Merriewether was also out sick for 2 days, absent for personal reasons for 1 day, and late for work four times. The Respondent’s attendance records also indicate that Merriewether was not scheduled to work on weekends. Subsequent to receiving the 90-day raise, Merriewether was laid off for an additional 5 days, out sick for 2 days, and absent for personal reasons for 1 day. During that period she arrived late or left early on six occasions.

At about the same time that she received her 90-day raise, Merriewether found out about the Union’s organizational campaign at Cadence and became an active and open union supporter. Merriewether collected union authorization cards from employees, distributed union buttons, and spoke to coworkers about the Union during breaks and outside of work. She also showed her union support by openly wearing a large number of prounion buttons—as many as 20 at a time—at work each day. Although many Masonic employees wore prounion buttons during the campaign, only a few IP line workers wore as many as Merriewether. Cindy Hollis, one of Merriewether’s supervisors, was present when Merriewether engaged in some of her activity in support of the Union, including wearing buttons, distributing buttons, and talking about the Union in the break room. After Hollis saw Merriewether engaged in these activities, her behavior towards Merriewether changed dramatically. Previously, Hollis had never stopped to watch Merriewether work. After becoming aware of Merriewether’s union activities, Hollis began to stand and watch Merriewether for lengthy periods of time. At trial, the Respondent stipulated that it knew about Merriewether’s union activities. (Tr. 205–206.)

Merriewether was subpoenaed by the Union to appear as a witness at a Board hearing regarding the representation petition. Merriewether was concerned that compliance with the subpoena would prevent her from arriving on time for her work shift, which started at 3:30 p.m. Therefore, she provided the subpoena to Hollis prior to the hearing. Merriewether attended the hearing on March 6 and 7. Ann Lipsitz, the human resources manager at the Masonic facility, also attended the hearing and observed that Merriewether was present and appeared ill during the session on March 6. After the March 6 session adjourned at 5:16 p.m, Merriewether continued to feel unwell, but came to the Masonic plant anyway. Upon arriving, Merriewether talked to Hollis and another supervisor about obtaining medical attention at the clinic the Respondent made available to employees. The supervisors told Merriewether to go home for the day and said nothing about charging her with an attendance “occurrence” for doing so. The next morning, March 7, Merriewether obtained treatment, and then continued to the Board hearing where she remained until she was released from her subpoena at about 5:05 p.m. Then, Merriewether drove a coworker home, continued to her own home to change into work clothes, and drove both herself and the coworker to the Masonic plant. Timecard records show that Merriewether reported for work that day at 7:31 pm.

2. Merriewether discharged

When she arrived at the Masonic facility following the March 7 hearing, Merriewether gave her supervisor documentation regarding the treatment she had obtained that morning.

Later the same day, Hollis...

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