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PRODUCTION PLATED PLASTICS, INC.
vs.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW)
 
Case:
Case 7-CA-16630
 
Location:
NATIONAL LABOR RELATIONS BOARD
 
Date:
January 14, 1981
 

DECISION AND ORDER

By Howard Jenkins, Jr., Member; John A. Penello, Member; John C. Truesdale, Member

On September 22, 1980, Administrative Law Court Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board had considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, *fn1 and conclusions of the Administrative Law Court, but not to adopt his recommended Order. *fn2

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Production Plated Plastics, Inc., Richland, Michigan, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive representative of the employees in the bargaining unit below by unilaterally changing its written plant rules regarding employee tardiness; imposing upon unit employees more stringent break and lunch period policies; changing its rules concerning the number of violations of its break and lunch policies which will result in disciplinary action against its employees; and imposing disciplinary action, including written verbal warnings, written warnings, and discharge, upon unit employees for violation of these unilaterally imposed policies. The appropriate unit is:

All full-time and regular part-time production and maintenance employees, including shipping and receiving employees, quality control and truckdriver employees, employed by Respondent at its facility located at 9899 "D" Avenue East, Richland, Michigan; but excluding all office clerical employees, technical employees, professional employees, confidential employees, guards and supervisors as defined by the Act.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.

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

(a) Rescind its new written plant rules regarding employee tardiness contained in Respondent's company rules.

(b) Rescind the more stringent break and lunch period policies instituted in April and June 1979.

(c) Rescind its change of the rules concerning the number of violations of its break and lunch period policies which will result in disciplinary action against its employees.

(d) Expunge from the personnel files of employees Cathy Czuk, Ann Lucas, Joan Browne, Mary Harper, Donna Shannon, Mary Meskil, Laura Marr, Deb Ritter, and Ruth Quinn, all references to disciplinary actions which resulted from their failure to comply with Respondent's more stringent break and lunch period policies and its change in rules concerning the disciplinary action to be imposed for violation of those policies.

(e) Offer Cathy Czuk and Ann Lucas immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

(f) Make Cathy Czuk and Ann Lucas whole for any loss of earnings they may have suffered due to the unlawful discharges by paying each of them a sum equal to what she would have earned, less any net interim earnings, plus interest, as set forth in the section of this Decision entitled "The Remedy." *fn3

(g) Bargain with the Union as the exclusive representative of the employees in the above appropriate unit with respect to changes in Respondent's written plant rules regarding employee tardiness, more stringent break and lunch period policies, changes in its rules concerning the number of violations of its break and lunch period policies which will result in disciplinary action against its employees, and imposition of disciplinary action, including written verbal warnings, written warnings, and discharge, upon the unit employees for violation of the above-mentioned policies.

(h) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order.

(i) Post at its plant in Richland, Michigan, copies of the attached notice marked "Appendix." *fn4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(j) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

ALJ: LEONARD M. WAGMAN

ALJ-DECISION:

DECISION

Statement of the Case

LEONARD M. WAGMAN, Administrative Law Court: Upon a charge and an amended charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), referred to herein as the Union, the Regional Director of the Seventh Region of the National Labor Relations Board issued the complaint herein in September 5, 1979. The complaint, as amended at the hearing held at Kalamazoo, Michigan, on April 7 and 8, 1980, alleged that the Respondent, Production Plated Plastics, Inc., violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (29 U.S.C. 151 et seq.), herein called the Act by making and implementing unilateral changes in its employees' conditions of employment. Respondent, by its timely answer denied committing the alleged unfair labor practices.

Upon the entire record, from my observation of the witnesses' demeanor, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following:

Findings of Fact

I. Jurisdiction and Labor Organization

Respondent, a Michigan corporation engages in the manufacture, sale and distribution of molded and chrome plated plastic products at its Richland, Michigan, plant. During the calendar year ending December 31, 1978, a representative period, Respondent in the course and conduct of its business operation manufactured, sold and distributed from its Richland, Michigan, plant products valued in excess of $2,500,000, of which products valued in excess of $50,000 were shipped from its Richland plant directly to points located outside of Michigan. In its answer, Respondent admitted the foregoing data and conceded that at all times material it was an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act, and I so find.

The complaint alleged, Respondent in its answer conceded, and I find that the Union, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act.

II. The Alleged Unfair Labor Practices

A. Background and Issues

In Production Plated Plastics, Inc., 247 NLRB No. 76 (January 28, 1980), petition for enforcement pending (C.A. 6, Docket No. 80-1290) the Board issued an order requiring Respondent to bargain with the Union for the following unit: All full-time and regular part-time production and maintenance employees, including shipping and receiving employees, quality control and truck driver employees employed by the Respondent at its facility located at 9899 'D' Avenue East, Richland, Michigan, but excluding all office clerical employees, technical employees, professional employees, confidential employees, guards and supervisors as defined in the Act. *fn1

In that same case, the Board found that the Respondent in the instant case had violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with relevant bargaining information, by making unilateral changes in its restroom use policy, and by withholding a Christmas bonus without bargaining collectively with the Union.

The issues raised in the instant case are whether Respondent violated Section 8(a)(5) and (1) of the Act by:

1. Unilaterally changing its rules regarding employee tardiness.

2. Unilaterally imposing a more stringent break period and lunch period policy.

3. Unilaterally changing its rules concerning the number of violations of its break period and lunch period policy which will result in disciplinary action.

4. Imposing disciplinary action including written warnings, verbal warnings and discharge upon unit employees for violation of these unilaterally imposed policies.

B. The Change in Company Rules Regarding Tardiness

Prior to July 1979, Respondent's shop rules included the following regarding tardiness and absence: Code: "D" Dismissal "WR" Written Reprimand "LO" Disciplinary Lay

1st 2nd 3rd

Offense, Offense, Offense

WR* 3 day*LO D*

17. Repeated (6) times in three (3) month, month period tardiness in reporting for work *These disciplinary measures are in addition to loss of bonus

18. Absent without Supervisor's approval. Unexcused absences in any calendar year which number three shall subject employee to warning. The fourth such absence shall subject employee to written reprimand; the fifth such absence shall subject employee to one week layoff; the sixth such absence shall subject employee to discharge.

In July 1979, the Respondent issued new shop rules in which former shop rules 17 and 18 were combined into Rule 17 as follows: Code: "D" Dismissal "WR" Written Reprimand "LO" Disciplinary Lay off

1st 2nd 3rd

Offense, Offense, Offense

17. Absent or late without Supervisor's approval. Unexcused absences in any calendar year which number three shall subject employee to a verbal warning. The fourth such absence shall subject employee to written reprimand; the fifth such absence shall subject employee to one week layoff; the sixth such absence shall subject employee to discharge. For purposes of this disciplinary procedure two (2) unexcused dates shall equal one unexcused absence. These disciplinary measures are in addition to loss of bonus.

The parties stipulated and I find that the Respondent instituted the new Rule 17 without giving the Union notice or any opportunity to bargain about it. I also find upon the parties' stipulation that during the pendency of the instant case, Respondent has abstained from applying the new Rule 17 pending the outcome of the issue of whether its unilateral promulgation ran afoul of Section 8(d) and 8(a)(5) of the Act.

Section 8(a)(5) and 8(d) of the Act require an employer to bargain with the representative of his employees over subjects encompassed within the broadly defined categories of "... wages, hours and other terms and conditions of employment." They make clear that it is an unfair labor practice for an employer to make a change effecting any matter which is a mandatory subject for bargaining without first advising the bargaining representative and providing it with an opportunity to bargain concerning the change. N.L.R.B. v. Katz, 369 U.S. 736 (1962); Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964).

Applying the stated principle to the instant case, it is clear that any unilateral alteration by Respondent of mandatory conditions of employment concerning its production and maintenance employees at its Richland plant in July 1979, when the Union was the exclusive bargaining representative of those employees, would constitute a refusal to bargain in violation of Section 8(a)(5) of the Act, as well as a violation of Section 8(a)(1) of the Act. Boland Marine and Manufacturing Company, Inc., 225 NLRB 824 (1976). It is settled law that rules regarding employee conduct and the discipline to be imposed for infractions of such rules are mandatory subjects of bargaining. Boland Marine and Manufacturing Company, Inc., supra, 225 NLRB at 829.

Comparison of Rules 17 and 18 with the new Rule 17 reveals that the latter contained more stringent discipline for tardiness. As I read old Rule 17, six instances of tardiness *fn2 in a 3-month period would be punished with a written reprimand, whereas the new combined rule strongly implies that six instances of tardiness in a calendar year would subject an employee to discharge. Also implied is that any combination of absences or incidents of tardiness totaling six in one year would subject the offending employee to discharge. Under the former rule 17 six instances of tardiness spread out over a calendar year would not subject defending employee to so much as a written reprimand. I find therefore that the merger of Rules 17 and 18 resulted in a substantial change in the degree of punishment to be imposed for repeated tardiness. By making this change in its plant rules without first notifying the Union and giving it an opportunity to bargain about it, Respondent violated Section 8(a)(5) and (1) of the Act.

C. Enforcement of Break and Lunch Policies

Since the Respondent opened its Richland plant in June 1969, its management's stated policy has been to grant all employees two 10-minute breaks and a 30-minute lunch break. Since 1973, the Respondent's plating department employees, according to stated policy, enjoyed 5 more minutes of break time known as "walk time."

The plating department, supervised by LeRoy Bowser since November, 1977, plates automobile parts with plastic, copper, nickel or chrome. Since November 1977, Bowser also supervised the day shift directly.

Both men and women work in the plating department. Most of the women rack and unrack the parts to be plated, on an assembly line. The men are divided into machine operators, Box handlers and material handlers. Occasionally, male employees rack and unrack parts. However none of the male employees work primarily as rackers/unrackers.

To permit the production line to continue unabated, the 11 or so day shift plating department women, classified as "racker/ unracker," take their morning and afternoon breaks so that only 6 are away from the production line at any given time.

The record shows that prior to April 1979, the rackers/ unrackers on the first or day shift were less than careful about breaks and lunch. Mary Harper, who was employed in the plating department from February 1973 until March 1979, believed that her morning and afternoon breaks were from 15 to 20 minutes in duration but that she might take longer than 20 minutes and perhaps as long as a 25-minute break. She also believed that she was entitled to a 35-minute lunch break. However, at times she took a 40-minute lunch break and from time to time extended her lunch period to 42 or 44 minutes.

Harper's understanding of Respondent's policy towards morning and afternoon breaks and lunch was not unique. She observed that the other women on her shift took breaks and lunch periods in similar fashion. *fn3

Employee Ann Lucas, who began work in Respondent's plating department on September 20, 1976, as a racker/unracker, and who was terminated in June 1979, believed that she was entitled to breaks of 20 minutes' duration and a lunch break of 35 minutes prior to April 1979. Before April 1979, Lucas also observed that, as she did, her fellow employees took breaks of 20 to 25 minutes, and lunch periods ranging from 35 to 45 minutes, with the predominant period being 40 minutes.

I find from Lucas' testimony that on occasions when Respondent employed the plating department on 10-hour shifts, the day shift rackers/ unrackers extended their breaks. During these extended shifts, Lucas and her colleagues took breaks of 25 minutes' duration and lunch breaks of 40 to 45 minutes.

I find from Harper's undenied testimony that prior to April 1979 LeRoy Bowser, occasionally sat in the break room with Harper and other racker/unracker employees. I also find from Harper's testimony that in late 1978 or early 1979, Bowser told Harper, who at the time was a production line leader, that he was not concerned with how long the employees took on their breaks so long as the production "got out and it wasn't held up," and that Bowser instructed Harper that she and the other employees should "watch it," with regard to the length of breaks. Lucas' credited testimony reflects a similar caution from Bowser in February 1979.

I find from Harper's testimony that for 2 weeks in early 1978, Bowser required his employees to sign in and out on breaks, when "[they] got out of hand." *fn4 I also find from Harper's testimony that after Bowser cautioned the day shift rackers/unrackers, they would curtail their breaks for "maybe for a couple of days" and then "go back to the same thing they were doing." However, prior to April 1979, Bowser did not tell either Harper or Lucas to adhere strictly to Respondent's stated policy regarding breaks and lunch. *fn5

Plating Department Manager Bowser testified in substance that prior to April 1979 he repeatedly pressed his employees to comply with Respondent's stated limits on breaks and lunch periods. He also testified that he issued a number of verbal warnings to the racker/ unracker women employed on the day shift in his department. Bowser testified that he submitted such write-ups to Respondent's personnel office.

However, Personnel Manager Warenuk's testimony and Respondent's file of warning notices cast doubt upon Bowser's testimony. Under examination, in response to the General Counsel's subpoena duces tecum seeking production of those warning notices, Warenuk testified that she had explored all of Respondent's records and that General Counsel's Exhibit 4 included all of the warning notices having to do with lunch period breaks between April 1977 and June 29, 1979. Warenuk also testified that Respondent's policy is to retain all such notices permanently. Review of the available warning notices revealed that prior to April 1979, Bowser issued no warning notice to any of the women employees on the day shift for either excessive breaks or over staying lunch.

Other factors cast doubt on Bowser's testimony that he was conscientious about enforcing the 10 plus 5 minute break rule and the 30-minute lunch rule prior to April 1979. For as found above, undenied and uncontradicted testimony of former employees Harper and Lucas showed that as a matter of practice, the first shift rackers/unrackers under Bowser's immediate supervision took more than 15 minutes for their breaks and more than 30 minutes for their lunch periods, apparently without fear of disciplinary action from Bowser. While I have found that Bowser cautioned his employees to control their lunch breaks, he also expressed a liberal attitude toward the length of breaks, so long as production went forward.

In evaluating Bowser's testimony, I have also considered his demeanor while testifying before me. My confidence in Bowser's reliability was eroded by his emphatic, but unsubstantiated assertion that "I keep records of all of the times you are late." Unlike Harper, Lucas and Warenuk who seemed to be relaxed, Bowser seemed anxious, particularly on cross examination, when questioned about his efforts to enforce Respondent's stated break and lunch policies prior to April 1979. He gratuitously complained about his repeated but vain efforts to attain compliance from employees who refused to heed his warnings. He also seemed overly anxious to stress his writing up of offending employees. My impression was that Bowser was trying too hard to make his point.

In sum, I find Bowser's testimony regarding his efforts to enforce Respondent's break and lunch policies prior to April 1979 unpersuasive. I have rejected it to the extent it runs counter to, or is inconsistent with, the testimony of Harper, Lucas and Warenuk.

Laura Marr, who replaced Mary Harper as line leader of the rackers/unrackers on the plating department's first shift, first heard Bowser remind the first shift about Respondent's stated lunch and break time policies in April 1979. Thereafter, Laura Marr heard Bowser remind the rackers/unrackers of Respondent's policies regarding breaks and lunch periods at approximately 2-week intervals.

At all times material to this case, Respondent provided an incentive bonus for each hour employees were at work during the workweek. However, Respondent also has withheld the bonus if an employee took more than 30 minutes for lunch, any time during the week. On one occasion, prior to April 1979, Mary Harper took more than 30 minutes for lunch on a workday and lost her weekly bonus.

On April 11, 1979, Respondent issued a "Verbal Employee Warning" to first shift racker/unracker Cathy Czuk for an excessive lunch period. The warning stated:

You took a long lunch today -- 26 minutes is on your timecard & an additional 18 minutes before returning to your work area. This will not be tolerated. Your next long lunch will mean a written warning. The nature of the violation designated on the notice was "Lateness." LeRoy Bowser signed this notice as did Acting Plant Manager Tom Grady.

On June 11, 1979, Czuk received a written warning for taking 43 minutes for lunch that day. The nature of the violation, as designated on the warning was "Lateness." This notice was signed by Tom Grady and Plant Manager Evans

On April 11 and on June 11 Respondent issued similar warning notices to Czuk's fellow employee, Ann Lucas. When Ann Lucas received her warnings, she complained that her conduct was no different from that of her fellow employees.

On 6 workdays, from Friday June 22 through and including June 29, 1979, Plating Manager LeRoy Bowser timed the breaks of 9 *fn6 of the 11 women rackers/unrackers on the first shift. He observed all 9 and noted when they took more than 15 minutes on their breaks. His records showed that 5 employees exceeded the Respondent's stated 15-minute break rule on all six dates. Laura Marr, Deb Ritter, Maryann Meskil and Ruth Quinn took excessive breaks on June 22, 25, 26, 27 and 28. Two women employed on the day shift, in the plating department were not listed on Bowser's notes and did not receive written warnings because he forgot their names.

Bowser conceded that the timing of his employees' breaks in late June 1979 and the issuance of written warnings to nine of the rackers/unrackers in his department was a "crackdown," *fn7 and that he had never written up "the entire department for taking too long on a break."

The warnings issued to Czuk, Lucas, Browne, Harper and Shannon were designated as written warnings. Those issued to Meskil, Quinn, Ritter and Marr were called "Verbal." On each of the warnings issued on June 29, the nature of the violation was designated as "Lateness." The verbal and written warnings were issued for violation of the pre-July 1979 Rule 17.

In addition to the written warnings issued to employees Czuk and Lucas respectively on June 11 and June 29, Respondent issued a warning notice on April 18 to each of them. The stated offense in each instance was as follows: Shop Rule 20 -- Stopping work before break time without approval of supervisor. You left the floor after specifically being asked not to for production reason. This behavior will not be tolerated. Your next offense will mean a 3 day disciplinary lay off. The nature of the violation in each case was designated as "Attitude" and "Disobedience." On June 29, Respondent terminated Lucas and Czuk on the ground that they had received three written warnings in a 12-month period. *fn8

I find in agreement with the General Counsel, and contrary to Respondent, that Bowser's crack-down regarding breaks, in late June 1979, and the Respondent's earlier issuance of verbal and written warnings in April and June 1979 to employees Czuk and Lucas for taking "long" lunch periods represented a tightening up of its enforcement policy with regard to tardiness. From these incidents I find that in April and June 1979 Respondent imposed changes in the working conditions of the first shift rackers/unrackers who were supervised by Bowser, and were part of the Union's bargaining unit. However, Respondent neglected to give notice to and bargain with the Union regarding these changes in the terms and conditions of employment which under Section 8(d) of the Act, were proper subjects for collective bargaining.

It is well settled that an employer's continuing obligation to bargain about "wages, hours, and other terms and conditions of employment" under Section 8(d) of the Act, encompasses the duty to bargain about plant rules pertaining to absence and tardiness, and accompanying disciplinary regulations. N.L.R.B. v. Miller Brewing Company, 408 F. 2d 12, 14 (C.A. 9, 1969); Murphy Diesel Company, 184 NLRB 757, 762, 763 (1970), enforced 454 F. 2d 303 (1971). Respondent's failure to bargain collectively with the Union regarding such changes violated Section 8(a)(5) and (1) of the Act. Master Slack, 230 NLRB 1054, 1055 (1977). I further find that the written and verbal warnings issued to employees Cathy Czuk, Ann Lucas, Joan Browne, Mary Harper, Donna Shannon, Mary Meskil, Laura Marr, Ruth Quinn, and Deb Ritter *fn9 pursuant to Respondent's unilateral changes in its tardiness rules violated Section 8(a)(5) and (1) of the Act. The discharge of employees Czuk and Lucas which were also in furtherance of Respondent's unilateral changes in its tardiness rule also violated Section 8(a)(5) and (1) of the Act.

On June 11, 1979, Ann Lucas and Cathy Czuk received written warnings for taking excessively long lunch periods. However, for Lucas and Czuk, respectively, this was only the second violation of the pre-July 1977 Rule 17 in a 3-month period. Thus, I find that on June 11, Respondent unilaterally changed Rule 17 as it applied to employees Lucas and Czuk. Here again, Respondent neglected to bargain with the Union regarding this change and thus again violated Section 8(a)(5) and (1) of the Act. For under the pre-July 1977 rule, six instances of tardiness in 3 months were required before a written warning was to be issued.

III. Conclusions of Law

1. Respondent, Production Plated Plastics, Inc., is now and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act.

3. All full-time and regular part-time production and maintenance employees including shipping and receiving employees, quality control, and truckdriver employees employed by Respondent at its facility, located at 9899 'D' Avenue East, Richland, Michigan, but excluding all office clerical employees, confidential employees, guards and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(a) of the Act.

4. At all times material to this case, the Union has been the exclusive collective-bargaining representative of the employees described in paragraph 3 above for purposes of collective bargaining within the meaning of Section 9(a) of the Act.

5. The Respondent has violated Section 8(a)(5) and (1) of the Act by, unilaterally, without prior notice to or consultation with the Union, imposing upon the employees in the unit described in paragraph 3, above, a more stringent break and lunch period policy, changing its rule concerning the number of violations of its break period and lunch period policy which will result in written warnings and other disciplinary action against its employees, implementing its unilaterally adopted lunch period and break period policies against unit employees through the issuance of written verbal warnings and written warnings, discharging unit employees Cathy Czuk and Ann Lucas pursuant to the aforesaid unilaterally adopted rules, and, by, unilaterally and without prior notice to or consultation with the Union, changing its written plant rules regarding employee tardiness.

6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

IV. The Remedy

Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.

Having found that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally promulgating and implementing a more stringent break period and lunch period policy, by changing its rules concerning the number of violations of its break period and lunch period policy which result in disciplinary action, and by issuing verbal warnings, written warnings and discharging employees in implementing the aforesaid policies, it will be recommended that said rules and the procedures devised to enforce them shall be rescinded and withdrawn.

It will also be recommended that Respondent restore the status quo which existed at the time of its unlawful actions by rescinding all disciplinary actions resulting from implementation of Respondent's revised rules regarding lunch and breaks and the implementation of the disciplinary policies unilaterally revised which are described above. Inasmuch as Respondent discharged employees Cathy Czuk and Ann Lucas pursuant to its unilateral changes in the lunch and break rules and in the disciplinary procedures in violation of Section 8(a)(5) and (1) of the Act, I will provide as a remedy in my recommended order that Respondent offer these employees reinstatement and make them whole by reimbursing them for any loss of earnings they may have suffered, including interest, in the manner prescribed in F.W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 117 (1977). *fn10

Upon the basis of the entire record, the findings of fact, and the conclusion of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: *fn11

ORDER

The Respondent, Production Plated Plastics, Inc., its officers, agents, successors and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive representative of the employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees including shipping and receiving employees, quality control and truckdriver employees, employed by the Respondent at its facility located at 9899 'D' Avenue East, Richland, Michigan, but excluding all office clerical employees, technical employees, professional employees, confidential employees, guards and supervisors, as defined in the Act.

(b) Revising, expanding, promulgating and thereafter enforcing work governing employee tardiness, breaks and lunch periods or other terms and conditions of employment, without bargaining with the Union.

(c) Refusing on request of the Union to discuss and negotiate with it about the revision, expansion, promulgation, and enforcement of work rules and discipline effecting violations of such work rules as they concern employees in the appropriate unit.

(d) In any like or related manner interfering with, restraining or coercing employees in the exercise of their bargaining rights.

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

(a) Cancel and withdraw the current Rule 17 contained in Respondent's company rules.

(b) Issue a revocation of the more stringent policy regarding break and lunch periods as implemented in April and June 1979.

(c) Cancel and withdraw from the personnel files of employees Cathy Czuk, Ann Lucas, Joan Browne, Mary Harper, Donna Shannon, Mary Meskil, Laura Marr, Deb Ritter and Ruth Quinn, all disciplinary actions which resulted from their failure to comply with Respondent's more stringent break and lunch period policies and its change in rules concerning the disciplinary action to be imposed for violation of those policies.

(d) Offer employees Cathy Czuk and Ann Lucas reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of wages they suffered as a result of the unilaterally imposed rules, in the manner set forth in the remedy section of this Decision.

(e) Upon request, bargain with the Union about the promulgation, content and enforcement of plant rules governing tardiness, break periods, or lunch periods, and effecting employees in the bargaining unit and if agreement is reached, embody it in a signed collective-bargaining agreement.

(f) Preserve and upon request make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports and all of the records necessary to analyze the amount of backpay due and to assist in determining compliance with the recommended recision of all disciplinary action.

(g) Post at its plant in Richland, Michigan, copies of the attached notice marked "Appendix." *fn12 Copies of said notice on forms provided by the Regional Director for Region 7, after being duly signed by an authorized representative, shall be posted by Respondent upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(h) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.

Dated, Washington, D.C. September 22, 1980

APPENDIX NOTICE TO EMPLOYEES

Posted by Order of the National Labor Relations Board An Agency of the United States Government

WE WILL NOT refuse to bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive representative of the employees in the bargaining unit below by unilaterally changing our written plant rules regarding employee tardiness; imposing upon unit employees more stringent break and lunch period policies; changing our rules concerning the number of violations of our break and lunch period policies which will result in disciplinary action against our employees; and imposing disciplinary action, including written verbal warnings, written warnings, and discharge, upon unit employees for violation of these unilaterally imposed policies. The appropriate unit is:

All full-time and regular part-time production and maintenance employees, including shipping and receiving employees, quality control and truckdriver employees, employed by the Employer at its facility located at 9899 "D" Avenue East, Richland, Michigan, but excluding all office clerical employees, technical employees, professional employees, confidential employees, guards and supervisors as defined in the Act.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended.

WE WILL rescind our new written plant rules regarding employee tardiness in our company rules.

WE WILL rescind the more stringent break and lunch period policies we instituted in April and June 1979.

WE WILL rescind our change of the rules concerning the number of violations of our break and lunch period policies which will result in disciplinary action against our employees.

WE WILL expunge from the personnel files of employees Cathy Czuk, Ann Lucas, Joan Browne, Mary Harper, Donna Shannon, Mary Meskil, Laura Marr, Deb Ritter, and Ruth Quinn all references to disciplinary actions which resulted from their failure to comply with our more stringent break and lunch period policies and our change in rules concerning disciplinary action to be imposed for violation of these policies.

WE WILL offer Cathy Czuk and Ann Lucas immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

WE WILL make Cathy Czuk and Ann Lucas whole for any loss of earnings they may have suffered due to the discrimination practiced against them by paying each of them a sum equal to what she would have earned, less any net interim earnings, plus interest.

WE WILL bargain with the Union as the exclusive representative of our employees in the above appropriate unit with respect to changes in our written plant rules regarding employee tardiness, more stringent break and lunch period policies, changes in our rules concerning the number of violations of our break and lunch period policies which will result in disciplinary action against our employees, and imposition of disciplinary action, including written verbal warnings, written warnings, and discharge, upon our employees for violation of the above-mentioned policies.

PRODUCTION PLATED PLASTICS, INC.

(Employer)

Dated

(Representative) (Title)

This is an official notice and must not be defaced by anyone.

This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Patrick V. McNamara Federal Building, 477 Michigan Avenue, Room 300, Detroit, Michigan 48226, Telephone 313--226--3244.

 
Notes:

*fn1 In the last sentence of the final paragraph of the section of his Decision entitled "Enforcement of Break and Lunch Policies," the Administrative Law Court inadvertently referred to the "pre-July 1977" employee tardiness rule, instead of the "pre-July 1979 rule." We hereby correct this error.

Further, we agree with the Administrative Law Court's conclusion that Respondent violated SEC. 8(a)(5) and (1) of Act by changing its written plant rule regarding the degree of punishment to be imposed for repeated tardiness without first notifying and bargaining with the Union. However, we do not concur with his interpretation of that changed rule. The new rule reads as follows:

Absent or late without Supervisor's approval. Unexcused absences in any calendar year which number three shall subject employee to a verbal warning. The fourth such absence shall subject employee to written reprimand; the fifth such absence shall subject employee to one week layoff; the sixth such absence shall subject employee to discharge. For purposes of this disciplinary procedure two (2) unexcused dates [sic] shall equal one unexcused absence. These disciplinary measures are in addition to loss of bonus." The proper reading of the rule is "two unexcused lates" instead of "dates." The Administrative Law Court apparently referred to a misprint of the rules in incorrectly stating the language. We hereby correct this error. The rule also provides for first, second, and third offenses.

The Administrative Law Court erred in overlooking that section of Rule 17 which provides that "two (2) unexcused lates shall equal one unexcused absence." Therefore, his finding that sic instances of tardiness in a calendar year would subject an employee to discharge is incorrect. There is no doubt, however, that the new rule is different from that which preceded it, and the changes involved could not be made unilaterally without violating the Act. Thus, the Administrative Law Court's ultimate conclusion is affirmed.

*fn2 Certain inadvertent errors appear in the Administrative Law Court's recommended Order. Accordingly, we will issue an Order in lieu of that of the Administrative Law Court.

*fn3 Member Jenkins would award interest on backpay due based on the formula set forth in his partial dissent in Olympic Medical Corporation, 250 NLRB No. 11 (1980).

*fn4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."

------------------------------STATEMENT OF CASE NOTES-------------------

*fn1 The Board found that the Union achieved majority status on September 15, 1977, in a Board held representation election.

*fn2 "Tardy" and "late" are synonymous as used by Respondent's management in their testimony and in the Respondent's employee warning notices received in evidence.

*fn3 Harper's straightforward testimony regarding her practices and observations was uncontradicted.

*fn4 For reasons given later in this Decision, Harper impressed me as a more reliable witness than Bowser. Therefore, I have credited her rather than Bowser regarding his attempts to control breaks.

*fn5 This finding is based upon Harper's and Lucas' testimony. Bowser testified that he told employees Czuk, Lucas and Harper of Respondent's 10 plus 5 minute break policy and of the 30-minute lunch policy. However, his testimony does not reveal when he so advised them.

*fn6 Cathy Czuk, Ruth Quinn, Ann Lucas, Maryann Meskill, Mary Harper, Laura Marr, Donna Shannon, Deb Ritter and Joan Browne.

*fn7 Bowser testified that since November 1977, he kept records showing how much time each of the employees in the plating department took on breaks. However, he also testified that he only kept such records for a year running from January to January and that in February 1980, he discarded all of the notes on breaks for the year 1979. However, as found above, Respondent's records did not contain written warnings to the rackers/unrackers employed on Bowser's day shift prior to April 1979.

*fn8 Rule 30 of Respondent's rules states:

(Employees) receiving three (3) warning notices in a 12 month period are subject to immediate dismissal.

*fn9 At the hearing, I granted the General Counsel's motion to amend the complaint to alleged that the written verbal warnings issued to Marr and Ritter violated the Act.

*fn10 See generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).

*fn11 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.

*fn12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."