Schwickert’s of Rochester, Inc., 1044 (2004)

SchwickertÂ’s of Rochester, Inc. and United Union of Roofers, Waterproofers and Allied Workers Local Union No. 96

Schwickert, Inc. and United Union of Roofers, Waterproofers and Allied Workers Local Union No. 96. Cases 18–CA–16899, 18–CA–16900, 18–CA–16936, 18–CA–16937, 18–CA–17029, and 18–CA–17031

December 16, 2004

DECISION AND ORDER

By Chairman Battista and Members Liebman and Walsh

On May 25, 2004, Administrative Law Judge Mark D. Rubin issued the attached decision. The Respondents filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondents filed a reply brief.1

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 judgeÂ’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3

The judge found that the Respondents violated Section 8(a)(5) of the Act by withdrawing from multiemployer bargaining, by withdrawing recognition from the Union and refusing to bargain with it, and by unilaterally implementing changes in terms and conditions of employment. The judge also found that the Respondents violated Section 8(a)(3) of the Act by constructively discharging five employees. We adopt these findings for the reasons set forth by the judge.4 Contrary to our dissenting colleague, we also adopt the judge’s finding that the Respondents violated Section 8(a)(1) of the Act by telling employees that they would no longer be represented by the Union and by providing employees with union resignation forms and envelopes in which to mail them.

As more fully set forth in the judge’s decision, the Respondents bargained with the Union as members of a multiemployer association for over 20 years, with the most recent collective-bargaining agreement effective from June 1999 to May 31, 2003.5 Multiemployer bargaining for a successor contract got underway May 14 and continued on May 21, but with little or no meaningful progress. Two participants from the employers’ side of the negotiating table testified that different contractors within the association had different objectives and positions.

Bargaining resumed May 29; all parties agreed negotiations that day were difficult. Because of the association members’ divergent positions, Union Business Manager Bob Danley testified that he felt like he “was getting hit from all sides.” Frustrated, Danley snapped: “I might as well negotiate this contract the way I do in Wisconsin.” In Wisconsin, as all present were aware, Danley bargains with employers individually. An association representative sarcastically replied, “Oh yeah, Bob, that really works well in Wisconsin.” After this exchange, multiemployer bargaining resumed, and at the end of the day Danley agreed to take the association’s offer to the union membership for a vote. Based on these facts, the judge found, and we agree, that Danley’s offhand “Wisconsin” remark was merely rhetorical or sarcastic, and was understood as such.

The union membership rejected the association’s May 29 proposal, and the parties scheduled another bargaining session for June 13. However, on June 12, the Respondents informed the Union by letter that they were withdrawing from multiemployer bargaining and accepting the Union’s “offer” to negotiate separately. On June 15 or 16, Danley phoned the Respondents’ president, Kent Schwickert, and left a voicemail asking Schwickert to call him so they could discuss the Respondents’ June 12 letter. There is no evidence that Schwickert returned Danley’s call. On June 18, the Respondents informed the Union by letter that they had repudiated the collective-bargaining agreement.6

On June 19, the Respondents convened a meeting with their employees and informed them that they had repudiated their bargaining relationship with the Union. Kent Schwickert, the Respondents’ president, told the employees that they could remain union members, but that the Union could fine the employees for continuing to work for the Respondents, and that the employees would be responsible for paying these fines. The employees were then told that the Respondents were implementing changes in their health insurance, holiday and vacation pay, and sick leave. Union resignation forms were made available to employees at the back of the room, and stamped envelopes with which to mail them were later left in their timecard slots.

The judge found that the Respondents’ conduct at the June 19 meeting violated Section 8(a)(1). He explained that inasmuch as the Respondents were bound to multiemployer bargaining at that time, the Respondents were prohibited from telling their employees that they no longer enjoyed union representation, that the Respondents would no longer deal with their Union as the employees’ representative, that the Union could fine employees for continuing to work for the Respondents, and that the Respondents were making changes in wages and benefits. The judge further explained that in light of these unlawful statements, the Respondents’ actions in preparing and placing union resignation forms at the back of the meeting room, and distributing stamped envelopes in which to mail the resignation forms, further violated Section 8(a)(1) because the employees would tend to feel peril in refraining from utilizing the forms. We agree with these findings.

Our dissenting colleague agrees that the Respondents’ withdrawal from multiemployer bargaining and repudiation of the collective-bargaining relationship was unlawful. Nevertheless, he would reverse the judge’s 8(a)(1) violation findings involving the Respondents’ conduct on June 19 because, in his view, the Respondents had a good-faith defense that their withdrawal and repudiation were lawful, and therefore the employees could not reasonably be coerced by that conduct. We disagree with our colleague for several reasons.

To begin with, our colleague has invoked a rationale the Respondents themselves not only did not argue, but also affirmatively waived. In their exceptions brief, the Respondents freely admitted that the judge “correctly concluded that each of the remaining unfair labor practice allegations”—i.e., the non-Section 8(a)(5) allegations—“depend on whether Respondents lawfully terminated their relationship with the Union.” The Respondents have waived the argument upon which our colleague relies, and therefore it is not appropriate for consideration. See, e.g., Trailmobile Trailer, LLC, 343 NLRB No. 17, slip op. at 4 (2004).7

Furthermore, Kent Schwickert could not have believed, honestly and in good faith, that Danley’s “Wisconsin” comment was a serious offer to bargain with the Respondents individually. As the facts recited above make plain, Danley’s comment was, and was understood as, nothing more than a sarcastic, off-the-cuff outburst. Moreover, Danley left Schwickert a voicemail asking Schwickert to call him about the June 12 letter purporting to accept Danley’s “offer,” and Schwickert never responded. Thus, it appears that Schwickert avoided having the very conversation with Danley that would have made the already self-evident meaning of Danley’s “Wisconsin” remark explicit. Under these circumstances, Schwickert could not have formed the honest, good-faith belief our colleague attributes to him.

Finally, even assuming Schwickert held such a good-faith belief, our colleague has not explained how that would affect the coercive tendency of the Respondents’ June 19 conduct. The applicable test is an objective one; intent and motivation are immaterial. See, e.g., KSM Industries, 336 NLRB 133, 133 (2001); Miller Electric Pump & Plumbing, 334 NLRB 824, 824 (2001). Thus, the coercive tendency of the Respondents’ June 19 conduct does not depend on Kent Schwickert’s beliefs, reasonable or otherwise.

Accordingly, we adopt the judgeÂ’s finding that the Respondents violated Section 8(a)(1) as alleged.

ORDER

The National Labor Relations Board orders that the Respondents, SchwickertÂ’s of Rochester, Inc., Rochester, Minnesota, and Schwickert, Inc., Mankato, Minnesota, their officers, agents, successors, and assigns, shall

1. Â Cease and desist from

   (a) Constructively discharging or otherwise discriminating against employees because they engage in union activities or to discourage employees from engaging in such activities.

   (b) Withdrawing or withholding recognition from the Union, unilaterally changing, or imposing new, terms and conditions of employment on their employees, refusing to participate in multiemployer bargaining with the Union, or otherwise refusing to bargain in good faith with the Union as the exclusive collective-bargaining representative of employees in the following unit:

   All full and regular part time journeymen and apprentice employees employed as roofers, and damp and waterproofing workers by Respondents at their Rochester and Mankato, Minnesota, facilities, excluding guards and supervisors as defined in the Act, and all other employees.

   (c) Informing employees that they are no longer represented by the Union, or providing employees with forms and stamped envelopes for the purpose of resigning from the Union, at a time when the Respondents are obligated to recognize the Union as the collective-bargaining representative of employees in the unit set forth above.

   (d) 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.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

   (a) Within 14 days from the date of this Order, Respondent SchwickertÂ’s of Rochester offer Ray Oman and Brad Musel, and Respondent Schwickert offer Jerry Mundt, Ryan Augustine, and Ben Pugh, full...