Danite Sign Company, (2011)
modify his recommended remedy,2 and to adopt the recommended Order as modified and set forth in full below.3
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.
DaNite Holdings, Ltd. d/b/a DaNite Sign Company and Sheet Metal Workers International Association Local Union No. 24 and International Brotherhood of Electrical Workers Local Union No. 683. Cases 92013CA201345500, 92013CA201345501, 92013 CA201345508, 92013CA201345526, and 92013CA201345565
March 31, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES
On August 9, 2010, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. Additionally, the General Counsel filed limited exceptions and a supporting brief, and the Respondent 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 briefs and has decided to affirm the judge2019s rulings, findings,1 and conclusions, to
1 Having adopted the judge2019s finding that the Respondent violated Sec. 8(a)(1) by promulgating a rule that prohibited employees from discussing their compensation, we find it unnecessary to pass on the General Counsel2019s exception regarding an alleged additional incident of unlawfully prohibiting employees from discussing their terms and conditions of employment not addressed by the judge. Such a violation would be cumulative and would not materially affect the remedy.
We adopt the judge2019s finding that the Respondent violated Sec. 8(a)(2) and (1) by forming and operating the moving forward team (MFT). The essential facts are these: The Respondent, immediately following its unlawful withdrawal of recognition from the Union, formed the MFT to consult with the Respondent on various issues, including terms and conditions of employment. The initial employee members of the MFT were selected by the Respondent because they were 201clooked up to around the shop.201d The Respondent sought the MFT2019s input on merit wage increases, health insurance, and a survey to elicit employee sentiment regarding compensation. The Respondent met with the MFT on three occasions and, as indicated by its initial announcement, contemplated ongoing meetings. Given those facts, we find that the judge reasonably inferred that the Respondent intended to consider consensus employee sentiment, as expressed by the MFT, and to decide whether to accept or reject it. See Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 8122013813 (3d Cir. 1986), cert. denied 481 U.S. 1069 (1987) (the Board is entitled to draw 201clegitimate inferences from proven facts201d). Because the MFT met only three times, the record does not establish actual back-and-forth dealings between it and the Respondent. Nevertheless, we find that the MFT was unlawful because it was established, at least in part, for that purpose. See Music Express East, Inc., 340 NLRB 1063, 107720131078 (2003) (finding a 201cchauffeurs committee201d unlawful where, even though the committee met only once and
there was no direct testimony about that meeting, the record as a whole established that 201cthe committee was set up to 2018deal2019 with the [employer]201d). For that reason, as well, we find that the MFT is more analogous to the employee committees found unlawful in EFCO Corp., 327 NLRB 372, 375 (1998), enfd. 215 F.3d 1318 (4th Cir. 2000), than to the employee-suggestion committee found lawful in that case.
Member Hayes disagrees with his colleagues and the judge that the Respondent violated Sec. 8(a)(2) in operating the Moving forward team (MFT). A prerequisite to finding such a violation is that the entity involved is a labor organization as defined in Sec. 2(5) of the Act. E. I. du Pont de Nemours & Co., 311 NLRB 893, 894 (1993). An employee committee is a labor organization where it exists for the purpose of 201cdealing with201d employers concerning conditions of work. Id. The Board has held that 201cdealing with201d ordinarily involves 201ca pattern or practice in which a group of employees, over time, makes proposals to management, management responds to these proposals by acceptance or rejection by work or deed, and compromise is not required.201d Id. Here, there is no evidence that the Respondent 201cdealt with201d the MFT because the MFT team members did not make any proposals to management. At most, the record shows that the employee team members may have edited some questions for an employee work survey that the Respondent2019s president never completed. See EFCO Corp., 327 NLRB at 375 (the employee suggestion screening committee was not a labor organization because it did not formulate proposals or present them to management). The majority nevertheless finds it reasonable to infer that the Respondent intended that the purpose of the MFT would be to deal with the Respondent over statutory terms and conditions of employment. The Board, however, has found that a committee2019s purpose is shown by examining its actual function. In Polaroid Corp., 329 NLRB 424 (1999), the Board, in explaining the concept of 201cdealing with,201d stated, 201cThe issue is what the committee actually does.201d Similarly, in E. I. du Pont, 311 NLRB at 894, the Board, in defining the limits of 201cdealing with201d emphasized that 201cIf there are only isolated instances in which the group makes ad hoc proposals to management . .
. the element of dealing is missing.201d) Member Hayes would therefore dismiss the 8(a)(2) allegation.
In adopting the judge2019s finding that the Respondent violated Sec. 8(a)(5) by withdrawing recognition from the Unions, Member Hayes does not express any view as to whether Levitz Furniture Co., 333 NLRB 717 (2001), was correctly decided. He finds that, even under the Board2019s pre-Levitz standard, as elucidated by the Supreme Court in Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), the Respondent was not justified in withdrawing recognition from the Unions, because it has not established that it had a good-faith reasonable doubt (i.e., reasonable uncertainty) as to the Unions2019 majority support.
Member Hayes finds it unnecessary to pass on the judge2019s finding that the Respondent violated Sec. 8(a)(5) by directly dealing with employee Kim Smith, inasmuch as he believes that such a finding would be cumulative, and would not materially affect the remedy. Finally, in agreeing with his colleagues that the Respondent failed to cure its unlawful promulgation of a rule that prohibited employees from discussing their compensation, Member Hayes finds it unnecessary to rely on Passavant Memorial Area Hospital, 237 NLRB 138 (1978). In his view, the Respondent2019s rescission of the rule, without more, was insufficient to cure the violation.
2 Backpay owing shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons for the Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Append the following to the judge2019s Conclusions of Law.
201cRespondent violated Section 8(a)(1) by promulgating a rule that prohibited employees from discussing their compensation.201d
The National Labor Relations Board orders that the Respondent, DaNite Holdings, Ltd. d/b/a DaNite Sign Company, Columbus, Ohio, its officers, agents, successors, and assigns, shall take the following action
Cease and desist from
(a) Withdrawing recognition from, and failing and refusing to bargain with, Sheet Metal Workers International Association Local Union No. 24 and International Brotherhood of Electrical Workers Local Union No. 683 (the Unions), as the exclusive representative of the Respondent2019s production employees.
(b) Changing the terms and conditions of employment of any bargaining unit employee without providing the Unions notice and an opportunity to bargain.
(c) Bypassing the Unions and dealing directly with any unit employee or group of unit employees concerning their terms and conditions of employment.
(d) Forming, recognizing, and operating the Moving Forward Team, or any other dominated successor thereof, for the purpose of dealing with the Respondent over employees2019 wages, hours, or other terms and conditions of employment.
(e) Promulgating or maintaining any rule that prohibits employees from discussing wages, hours, or other terms and conditions of employment.
tarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
In addition, having adopted the judge2019s finding that the Respondent unlawfully failed to remit contributions to the IBEW pension fund, the Respondent2019s make-whole obligations shall include making all such delinquent fund contributions on employees2019 behalf, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). The Respondent2019s remedial obligation shall also include reimbursing unit employees for any contributions they themselves may have made for the maintenance of that pension fund, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts, with interest, to be computed in the manner set forth in the paragraph above.
3 We shall modify the judge2019s conclusions of law and substitute a new Order and notice to conform to the violations found. Our Order shall also modify the judge2019s...
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