Vanguard Fire & Supply Co. v. National Labor Relations Board

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0431p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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VANGUARD FIRE & SUPPLY CO., INC., d/b/a

Petitioner/Cross-Respondent, -

VANGUARD FIRE & SECURITY SYSTEMS,

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Nos. 05-2497/2630

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v. >

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Respondent/Cross-Petitioner, -

NATIONAL LABOR RELATIONS BOARD,

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ROAD SPRINKLER FITTERS LOCAL UNION NO. 669,

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U.A., AFL-CIO,

Intervenor. -

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On Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board.

Nos. 7-CA-45823; 7-CA-46478; 7-CA-46727.

Argued: September 20, 2006

Decided and Filed: November 21, 2006

Before: BATCHELDER and MOORE, Circuit Judges; HOOD, Chief District Judge.*

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COUNSEL

ARGUED: Timothy J. Ryan, RYAN & LYKINS, Grand Rapids, Michigan, for Petitioner. Stacy

G. Zimmerman, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent.

Jason J. Valtos, OSBORNE LAW OFFICES, Washington, D.C., for Intervenor. ON BRIEF:

Timothy J. Ryan, RYAN & LYKINS, Grand Rapids, Michigan, for Petitioner. Stacy G.

Zimmerman, Jill Griffin, Aileen A. Armstrong, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for Respondent. Jason J. Valtos, OSBORNE LAW OFFICES, Washington, D.C.,

for Intervenor.

*

The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District of Kentucky,

sitting by designation.

1

Nos. 05-2497/2630 Vanguard Fire & Supply Co. v. NLRB Page 2

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OPINION

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HOOD, Chief District Judge. This appeal involves a petition for review of a final Decision

and Order of the National Labor Relations Board (the “Board” or “NLRB”) and a cross-petition for

enforcement of the Decision and Order. Petitioner and Cross-Respondent, Vanguard Fire and

Supply Company, Inc. (“Vanguard”), appeals the Decision and Order of the Board adopting the

decision of Administrative Law Judge Keltner Locke (“ALJ Locke”) that Vanguard violated the

National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. (the “Act”), by (i) withdrawing

its recognition of Sprinkler Fitters Local Union No. 669 (the “Union”) based upon a disaffection

petition signed by fewer than a majority of the employees in the collective-bargaining unit;

(ii) unilaterally implementing changes to its cellular telephone bill reimbursement policy without

notice to or bargaining with the Union; and (iii) refusing to bargain with the Union unless the Union

complied with Vanguard’s demand for a bargaining agenda. Although the Board found additional

unfair labor practices, those practices are not the subject of Vanguard’s appeal.1

Vanguard appeals the Board’s final Order, claiming there was not substantial evidence in the

record to support the Board’s decision that Vanguard violated the Act. The Board cross-petitions

this Court for summary enforcement of the unchallenged portions of the Decision and Order.

I. INTRODUCTION

A. Factual and Procedural Background

Vanguard “fabricates, installs, and maintains fire suppression and security products,

including sprinkler systems, fire extinguishers, kitchen hoods, and alarm systems.” Vanguard has

four facilities in Michigan that install fire security systems throughout the state. Vanguard installs

two types of systems: (1) sprinkler systems that spray liquid (i.e. water) onto the area below; and

(2) “special hazard” or chemical systems that spray a gas or powder onto an area that may be harmed

by water (i.e. computer room or paper storage areas).

In March or April of 2001, Vanguard’s installers began organizing a union. Following a

Board-conducted election in July of 2001, where the Union won 9-3, the Union was certified as the

representative of employees who were “engaged in the installation and service of fire protection

sprinkler pipe and chemical system pipe.” The certification did not include other employees.

Following unsuccessful contract negotiations, the Union filed unfair labor practice charges

with the Board which included allegations that the company unlawfully subcontracted for

bargaining work. Pursuant to a settlement agreement entered into on June 5, 2002, the parties agreed

that the modified description of the bargaining unit work would include “installation and repair of

fire sprinkler systems without geographic limitation, and restaurant systems.” The bargaining unit

work, thus, did not include “installation and repair of other chemical or gas special hazard systems”

or the testing or inspection of the systems. These charges are not part of the Order under review

by this Court, but the modifications made to the scope of the bargaining unit were effective at the

time of the company’s withdrawal of recognition. Negotiations for an initial contract continued with

the above-mentioned changes to the bargaining unit.

1

Vanguard did not challenge the Board’s findings that Vanguard violated its collective bargaining duties by

granting higher starting hourly wages, higher salary increases, and higher vacation accrual rates to certain employees.

Nos. 05-2497/2630 Vanguard Fire & Supply Co. v. NLRB Page 3

In early 2003, the Union filed the charges at issue in the instant appeal which allege

Vanguard began to charge its bargaining unit employees for cell phone overages, which the Union

contended, was a unilateral change in the terms and conditions of employment without notice to or

bargaining with the Union, as required by the Act. The Union also alleged that Vanguard committed

an unfair labor practice by demanding on July 16, 2003, that the Union provide a detailed agenda

prior to the August 19, 2003, scheduled meeting and refusing to negotiate after twice receiving

agendas.

In addition, the Union’s charges included the allegation that Vanguard illegally withdrew

recognition of the Union. Approximately two months after refusing to meet, Vanguard formally

withdrew its recognition of the Union by letter dated October 15, 2003. In the letter, Vanguard

stated that it received a petition signed by a majority of the employees in the bargaining unit which

stated that they no longer wished to be represented by the Union. The disaffection petition was

signed by eight employees. At the administrative hearing, the parties stipulated that at the time

Vanguard withdrew recognition, the bargaining unit included eleven employees. The parties did not

agree, however, as to the bargaining unit status of four of the eight employees who signed the

petition. The contested employees were Sean Wiggers, Evan Timmerman, Nate Sloan, and Austin

Aamodt.

The charges were investigated and a complaint was issued, after which a hearing before ALJ

Locke ensued in March of 2004. At the hearing, General Counsel to the Union amended the

complaint to add an alternative theory – if the ALJ found that Sean Wiggers, Evan Timmerman, and

Nate Sloan were employees in the bargaining unit, then Vanguard improperly granted discretionary

wage increases without bargaining with or notice to the Union. The record indicates that ALJ

Locke recognized this amended count was pled in the alternative. Subsequent to the amendment

at the hearing, Vanguard admitted these allegations and added the defense that these allegations

were untimely.

On September 20, 2004, ALJ Locke issued his decision and order which held that Vanguard

committed unfair labor practices by: (1) unilaterally implementing changes to the cell phone

reimbursement policy without notice or bargaining; (2) refusing to bargain unless the Union first

complied with demand for an agenda; (3) withdrawing recognition of the Union without the required

majority of bargaining unit employees’ signatures; and (4) withdrawing recognition of the Union

based on a petition that was tainted by the company’s prior unfair practices.

Vanguard filed exceptions to ALJ Locke’s decision, which was affirmed in most part by the

Board. The Board held that it was unlawful for Vanguard to withdraw recognition without the

support of a majority of bargaining unit members, and thus found it unnecessary to decide whether

the disaffection petition was tainted by prior unfair practices.

B. National Labor Relations Act

The Act makes it unlawful for an employer to interfere with the rights of employees to

organize. See 29 U.S.C. § 158. Specifically at issue in this appeal are Sections 8(a)(1) and (5) of

the Act. Section 8(a)(1) of the Act makes it unlawful for an employer “to interfere with, restrain,

or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” 29 U.S.C.

§ 158(a)(1). Section 8(a)(5) of the Act makes it unlawful for an employer to “refuse to bargain

collectively with the representatives of his employees, subject to the provisions of section 159(a)

of this title.” 29 U.S.C. § 158(a)(5).

Nos. 05-2497/2630 Vanguard Fire & Supply Co. v. NLRB Page 4

II. ANALYSIS

A. Summary Enforcement of Uncontested Findings

Vanguard failed to challenge the Board’s decision that Vanguard violated Sections 8(a)(1)

and (5) of the Act by granting wage increases, higher starting wages, and higher vacation accrual

rates to certain employees without first giving notice or an opportunity to bargain to the Union.

Vanguard also failed to contest the Board’s finding that Vanguard violated Sections 8(a)(1) and

(5) of the Act by refusing to provide the Union with requested information about jobs that had been

awarded to Vanguard but had yet to commence. As this Court has previously stated, “[a]n

employer’s ‘failure to address or take issue with the Board’s findings and conclusions with regard

to . . . violations [of the Act] effectively results in abandonment of the right to object to those

determinations.’ ” NLRB v. Talsol Corp., 155 F.3d 785, 793 (6th Cir. 1998) (quoting NLRB v.

Kentucky May Coal Co., Inc., 89 F.3d 1235, 1241 (6th Cir. 1996)).

In cases in which the employer fails to challenge a portion of the Board’s findings on appeal,

this Court may “summarily enforce the Board’s order with regard to those issues.” Talsol, 155 F.3d

at 793; see also NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 231-32 (6th Cir. 2000) (stating that

the Board’s uncontested findings of unfair labor practices are entitled to summary affirmance).

When an employer fails to challenge certain adverse findings of the Board, as did Vanguard in this

appeal, the employer effectively admits the truth of those findings and loses the right to object to

them. Kentucky May Coal Co., Inc., 89 F.3d at 1241. Accordingly, the Board is entitled to summary

enforcement as to the uncontested portions of its Decision and Order.

B. Standard of Review

This Court reviews the NLRB’s “legal conclusions de novo and its factual findings under a

substantial evidence standard.” Harborside Healthcare, Inc. v. NLRB, 230 F.3d 206, 208 (6th Cir.

2000) (quoting Ky. River Cmty. Care, Inc. v. NLRB, 193 F.3d 444, 449 (6th Cir. 1999)). Factual

findings are supported by substantial evidence if a reasonable mind might accept the evidence as

“adequate to support a conclusion.” Lee v. NLRB, 325 F.3d 749, 754 (6th Cir. 2003). Even if this

Court’s conclusion as to the substantiality of factual evidence would be different under de novo

review, it “defer[s] to the Board’s reasonable inferences and credibility determinations” as to factual

evidence. Mt. Clemens Gen. Hosp. v. NLRB, 328 F.3d 837, 844 (6th Cir. 2003). In reviewing the

NLRB’s interpretation of the Act, this Court is deferential to the Board’s interpretation. Id. So long

as the NLRB’s interpretation of the statute is “reasonably defensible,” this Court will not disturb

such interpretation. Id.

Given the standard of review, we must decide whether there is substantial evidence to

support the Board’s findings that Vanguard violated the Act by (1) withdrawing union recognition;

(2) insisting that the Union produce an agenda; and (3) enforcing the cellular telephone

reimbursement policy. For the reasons stated below, we find that there is substantial evidence to

support each of the Board’s findings.

C. Withdrawal of Union Recognition Based on Employee Petition

A letter dated October 15, 2003, from Vanguard’s attorney, Timothy Ryan, to the Union’s

attorney, James Tucker, stated that Vanguard was withdrawing its recognition of the Union based

on an employee petition signed by a majority of the employees in the bargaining unit. In order to

comply with Section 8(a)(5) of the Act, an employer may only withdraw recognition “where the

union has actually lost the support of the majority of the bargaining unit employees.” Levitz

Furniture Co. of the Pacific, Inc., 333 NLRB 717, 717 (2001). This Court noted in Pleasantview

Nursing Home, Inc. v. NLRB, 351 F.3d 747, 764 (6th Cir. 2003), that lack of majority support may

be shown by a petition signed by a majority of members of the bargaining unit. The issue in this

Nos. 05-2497/2630 Vanguard Fire & Supply Co. v. NLRB Page 5

case is whether the disaffection petition relied on by Vanguard in withdrawing its recognition of the

Union indicated that the Union no longer enjoyed the support of a majority of the bargaining unit

members.

There was substantial evidence on the record for the Board to conclude that, despite the

disaffection petition signed by eight employees2, the Union continued to enjoy the support of the

majority of the bargaining unit members. Vanguard alleged that the bargaining unit consisted of

fourteen members and that seven of them signed the disaffection petition, resulting in a loss of

majority support for the Union. The Union alleged, and the Board found, that the bargaining unit

consisted of eleven members and that only four of them signed the disaffection petition, meaning

that the Union continued to enjoy the support of seven out of eleven, a definite majority, of the

bargaining unit members. The parties stipulated that eleven employees were members of the

bargaining unit. The three employees whose bargaining unit status was uncertain included Nathan

Sloan, Evan Timmerman, and Sean Wiggers.

During the course of initial contract negotiations, the Union filed unfair labor charges

against Vanguard. On June 5, 2002, the Union and Vanguard entered into an informal settlement

agreement which modified the description of bargaining unit work to consist of:

the installation and repair of fire sprinkler systems without geographic limitation, and

restaurant systems of the type performed by Marty Shields, but shall not include the

installation and repair of any other chemical or gas special hazard systems, and shall

not include the visual inspection and related testing of any systems.

The Board found that because Sloan, Timmerman, and Wiggers were not performing bargaining unit

work when they signed the petition, their signatures on the petition were not to be counted.

Nathan Sloan testified that he began working for Vanguard in June 2002 as a shop employee

and remained in that position until he was laid off for one day on August 1, 2003. Maintenance shop

work was not included in the description of bargaining unit work. When Sloan returned to work he

was told he would be a sprinkler fitter, a position within the bargaining unit, however, the Board

found that he spent much of August continuing to work in the shop. During portions of the final

week of August and the first week of September, Sloan’s work included sprinkler installation,

however, the remainder of September was again spent working in the shop. Sloan testified that he

also spent the month of October working in the shop and the record does not support a contrary

finding. Relying on Arlington Masonry Supply, 339 NLRB 817, n3 (2003) (holding that one must,

for a sufficient amount of time, “regularly perform duties similar to those performed by unit

employees” in order to be considered a member of the bargaining unit), the Board found that, based

upon the small amount of time he spent performing bargaining unit work, Nathan Sloan was not a

member of the bargaining unit. While there was evidence that a small portion of Sloan’s time was

dedicated to bargaining unit work, this Court has held that it will not overturn factual findings of the

Board simply because the evidence could have been viewed differently. Talsol Corp., 155 F.3d at

793.

Evan Timmerman began working for Vanguard in March 2003, and was assigned to the

“special hazards” systems, which is not included in the bargaining unit. While there was some

evidence that Timmerman spent a portion of his time installing sprinkler systems, the evidence on

the record indicated that the percentage of Timmerman’s work time spent performing such

bargaining unit work was not high. The Board had substantial evidence to conclude that

2

Vanguard initially contended that employee Austin Aamodt, who signed the petition, was a bargaining unit

employee, however it later conceded that he was not, changing its contention to state that seven of fourteen unit members

signed the petition.

Nos. 05-2497/2630 Vanguard Fire & Supply Co. v. NLRB Page 6

Timmerman did not spend enough time prior to or during October 2003 (the time the disaffection

petition was presented) regularly performing duties that would have entitled him to inclusion in the

bargaining unit. As Timmerman was not a bargaining unit employee in October 2003, his signature

on the petition is of no consequence.

Sean Wiggers began working for Vanguard in late June 2002 as a sprinkler system installer,

but in December 2002 or January 2003, Wiggers was assigned to the “special hazards” systems

which is not a part of the bargaining unit. Wiggers has worked in the special hazards unit since the

time of his reassignment, thus, he was not a bargaining unit employee in October 2003 and his

signature on the petition is also inconsequential.

The record provided the Board with substantial evidence to conclude that Sloan,

Timmerman, and Wiggers were not bargaining unit employees when they signed the petition. That

determination meant that there were only eleven bargaining unit members at the time the petition

was signed. Because Aamodt, Sloan, Timmerman and Wiggers were not in the bargaining unit, only

four of the eight signatures on the petition represented bargaining unit members. The Union

continued to be supported by seven of the eleven bargaining unit members, therefore, Vanguard’s

withdrawal of Union recognition violated Section 8(a)(5) of the Act. Levitz, 333 NLRB at 717 (an

employer may only withdraw union recognition when the union actually loses the support of the

majority of bargaining unit members).

Interestingly, Vanguard does not seem to challenge the Board’s findings that Sloan,

Timmerman and Wiggers were not members of the bargaining unit. Vanguard instead makes a futile

attempt to characterize a portion of the Union’s alternatively pled complaint as an admission by the

Union that Sloan, Timmerman and Wiggers were members of the bargaining unit. The Union’s

complaint initially alleged that Vanguard violated the Act by withdrawing Union recognition while

the Union maintained the support of the majority of the bargaining unit members. In order to find

this allegation true, ALJ Locke would have needed to find that Sloan, Timmerman, and Wiggers

were not members of the bargaining unit. The Union amended the complaint to allege, in the

alternative, that if Sloan, Timmerman, and Wiggers were found to be members of the bargaining

unit, then Vanguard violated the Act by unilaterally increasing their wages without negotiating with

the Union. Vanguard attempts to argue that the Union’s alternatively pled complaint became an

admission or stipulation that the three men were in the bargaining unit once Vanguard admitted such

fact. Vanguard’s argument is without merit.

ALJ Locke concluded that Sloan, Timmerman, and Wiggers were not in the bargaining unit,

therefore, he never reached the allegations in the Union’s alternatively pled complaint. Vanguard

would have this Court believe that once a party makes an argument in the alternative and the

opposing party accepts part of the alternative argument as true, that the facts and conclusions of the

alternative argument are conclusively established. What Vanguard failed to consider is that both

the Board and this Court have permitted alternative arguments without deeming the allegations in

such arguments to be true because they were pled and not objected to by the opposing party. See

S. Freedman Elec. Inc., 256 NLRB 432, 432 (1981) (counsel alleged that employer’s withdrawal

from bargaining unit was unlawful, or in the alternative, that if the withdrawal was lawful, the

bargaining unit was employer’s single facility); see also W. Paper Prods., Inc., 313 NLRB 94,94

(1993), enf’d in relevant part sub nom, Peters v. NLRB, 153 F.3d 289 (6th Cir. 1988)(noting that as

a general rule, pleading in the alternative is permitted).

Vanguard cannot be allowed to turn the Union’s alternative argument, especially considering

that the Board did not even reach its merits, into an admission or stipulation by the Union for

Vanguard’s own benefit. Vanguard likens the allegations in the Union’s alternatively pled

complaint to a stipulation which must be accepted by the Court, however, Vanguard fails to offer

any relevant authority. There was no stipulation offered or entered into by the parties. In the case

Nos. 05-2497/2630 Vanguard Fire & Supply Co. v. NLRB Page 7

Vanguard uses to support its stipulation argument, Academy of Art College, 241 NLRB 454, 454-55

(1979), the employer actually entered into a written stipulation and later tried to deny the facts in

the stipulation. In the instant case, there was no stipulation entered into by the Union. Moreover,

both ALJ Locke and the Board found substantial evidence to believe that Sloan, Timmerman, and

Wiggers were not bargaining unit employees when they signed the petition. Contrary to Vanguard’s

argument, the Board is not required to accept stipulations where they are contrary to the evidence.

See First Healthcare Corp., 336 NLRB 646, 646 (2001) (rejecting stipulation limiting litigation to

a single issue), enf’d 344 F.3d 523 (6th Cir. 2003); Red Lion, 301 NLRB 33, 33-34 (1991)(rejecting

stipulation not supported by the facts).

Finally, Vanguard’s argument that the Court should review this issue de novo because the

Board failed to follow Board Rule 102.20 is without merit. Board Rule 102.20 states:

All allegations in the complaint, if no answer is filed, or any allegation in the

complaint not specifically denied or explained in the answer filed, unless the

respondent shall state in the answer that he is without knowledge, shall be deemed

to be admitted to be true and shall be so found by the Board, unless good cause to the

contrary is shown.

This rule explicitly applies to situations where no answer is filed by the respondent. In this case,

Vanguard filed an answer to the complaint, and even if it had not, the facts presupposed by the

Union’s alternatively pled complaint would still not be established as true because the merits of the

alternatively pled complaint were never even reached once the Board decided the three employees

in question were not members of the bargaining unit.

The Board’s findings that Sloan, Timmerman and Wiggers were not members of the

bargaining unit were supported by substantial evidence on the record. The allegations in the Union’s

alternative complaint were not admitted or stipulated to. Finally, the Board did not violate any of

its own rules in deciding that Vanguard’s withdrawal of Union recognition was not based on an

actual loss of majority support for the Union.

D. Requiring Union to Provide Agenda

Section 8(a)(5) of the Act requires parties to meet and bargain in good faith as to mandatory

subjects of bargaining such as wages, hours, and other terms and conditions of employment.

Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 210 (1964). Parties are not required to

bargain over non-mandatory subjects, however, one cannot insist upon a non-mandatory subject of

bargaining to impasse or as a precondition to bargaining on mandatory subjects. NLRB v. Wooster

Div. of Borg-Warner Corp., 356 U.S. 342, 349 (1958); Taylor Warehouse Corp. v. NLRB, 98 F.3d

892, 901(6th Cir. 1996). A party who insists upon a non-mandatory subject to impasse or as a

precondition to bargaining violates Sections 8(a)(1) and (5) of the Act. Id. A meeting agenda is not

a mandatory subject of bargaining; therefore, Vanguard’s insistence upon an agenda’s being

submitted by the Union fourteen days prior to proposed meetings between the parties resulted in

Vanguard’s violation of the Act. See Caribe Staple Co., 313 NLRB 877, 890 (1994) (concluding that

an employer’s “attempt to force capitulation by declining to agree to any future bargaining session

unless the Union acceded to this nonsubstantive, procedural demand” of providing an agenda before

meetings violated Sections 8(a)(5) and (1) of the Act).

There is substantial evidence on the record to support the Board’s finding that Vanguard

insisted upon the Union’s submitting a detailed agenda as a precondition to bargaining on

mandatory subjects, in violation of Sections 8(a)(1) and (5). In a July 16, 2003, letter to the Union’s

attorney, James E. Tucker, Vanguard’s attorney, Timothy J. Ryan, stated that Vanguard was willing

to “make one more attempt to meet.” Vanguard expressly conditioned the meeting between the

Nos. 05-2497/2630 Vanguard Fire & Supply Co. v. NLRB Page 8

parties upon its receipt of a “detailed agenda” “at least two weeks in advance” of the meeting. The

specific points Vanguard wished the Union to address in its agenda included details of the proposals

that needed to be “worked out,” specific proposals the Union intended to make, and any other issues

the Union would like to discuss.

In its August 4, 2003, letter replying to Vanguard’s request for a detailed agenda, the Union

included an agenda which specifically addressed “areas which need to be “worked out,” the Union’s

“specific proposals,” and “discussion issues.” The agenda submitted by the Union clearly satisfied

Vanguard’s request for a detailed agenda, yet in an August 12, 2003, letter from Ryan to Tucker,

Vanguard rejected the Union’s agenda and cancelled the August 19, 2003, meeting of the parties

claiming the Union’s agenda did not satisfy Vanguard’s request.

Again on August 28, 2003, the Union attempted to provide Vanguard with an acceptable

agenda. The letter from Tucker to Ryan included a detailed three-page agenda which again outlined

the very topics Vanguard requested be included in the agenda. Vanguard evidenced its refusal to

accept the second agenda by failing to respond to the letter containing the agenda and by never again

meeting with the Union.

Although Vanguard argues its insistence upon receiving an agenda from the Union fourteen

days before proposed meetings was simply an example of the type of “hard bargaining” that was met

with approval in National Medical Associates, Inc., 318 NLRB 1020, 1031 (1995), that case is

distinguishable from the instant case. Vanguard’s refusal to accept two seemingly compliant

agendas indicates its bad faith and its attempt to illegally require a nonmandatory agenda as a

precondition to bargaining.

In National Medical Associates, Inc., the Board found that a letter sent by the employer to

the union stating that there would be no further negotiations until the employer received “some

meaningful indication of a willingness to compromise” on disputed issues did not constitute an

illegal precondition to bargaining. Id. at 1025. The Board’s finding was heavily influenced by the

fact that the letter from the employer expressly stated that it was not refusing to meet with union.

Id. at 1030. The instant case is distinguishable from National Medical Associates, Inc., as Vanguard

expressly stated that it was refusing to bargain with the Union unless it received a detailed agenda

fourteen days before proposed meetings. (“[I]f we have not received a detailed agenda . . . on or

before August 5, 2003, we will cancel the August 19, 2003, meeting and we will not schedule

another meeting until we have received these items.”) Even after receiving multiple agendas,

Vanguard refused to meet with the Union. Vanguard was not using the agenda to merely put

pressure on the Union, it was using the agenda to create an illegal precondition to bargaining.

The facts described above demonstrate the substantial evidence that exists on the record to

support the Board’s finding that Vanguard simply used the agenda, a nonmandatory subject of

bargaining which cannot be insisted upon as a precondition to bargaining, as a conduit for its refusal

to bargain on mandatory subjects, thereby violating Sections 8(a)(1) and (5) of the Act.

Vanguard’s argument that its insistence upon the nonmandatory agenda to the preclusion of

bargaining on mandatory subjects was permitted because the Union failed to object to the request

is misplaced. A waiver of one’s collective bargaining rights, including the right to be free from

illegal preconditions to bargaining such as the agenda at issue here, must be shown by “clear and

unmistakable” evidence. Taylor Warehouse, 98 F.3d at 902 (6th Cir. 1996). Vanguard proposes

that the Union’s act of submitting an agenda resulted in a waiver of the Union’s collective

bargaining rights, thereby precluding Vanguard from violating the Act with respect to the agenda.

This argument is not supported by the facts or the law.

Nos. 05-2497/2630 Vanguard Fire & Supply Co. v. NLRB Page 9

The Union did object to Vanguard’s demand that it submit an agenda before meetings

between the parties were to proceed. In a letter to Vanguard’s attorney, the Union clearly stated that

the agenda requirement was contrary to the past bargaining practices of the parties. Had Vanguard

revealed that it would reject acceptable agendas, the Union may have been more adamant in its

objection to the agenda requirement. The Union’s submission of an agenda can be described as

nothing more than an attempt to encourage bargaining between the parties - far from the waiver of

its collective bargaining rights Vanguard proposes.

There is substantial evidence on the record to support the Board’s finding that Vanguard

insisted upon a nonmandatory agenda as a precondition to bargaining on mandatory subjects,

thereby violating the Union’s collective bargaining rights. There is no clear and unmistakable

evidence to support Vanguard’s argument that the Union waived its collective bargaining rights

thereby precluding Vanguard from violating the Act with respect to its agenda requirement.

E. Enforcement of Dormant Cell Phone Reimbursement Policy

An employer violates its bargaining obligations under Section 8(a)(1) and (5) of the Act if

it changes a term or condition of employment without bargaining with the employees’ bargaining

representative. Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198 (1991) (citing NLRB v. Katz,

369 U.S. 736, 743 (1962)); NLRB v. Plainville Ready Mix Concrete Co., 44 F.3d 1320, 1325-26 (6th

Cir. 1995). Employer-sponsored cellular telephone plans are a condition of employment and must

be bargained over. Goya Foods of Florida, No. 12-CA-19668, 2001 WL 1603837 (NLRB Feb. 22,

2001). Vanguard argues that because its policy of charging employees for cell phone overage

existed prior to the Union’s recognition, it did not unilaterally, and in violation of the Act, change

a condition of employment. This Court previously held that “Sections 8(a)(1) and (5) of the Act

can be violated when, on the heels of a successful union election, an employer begins to strictly

enforce previously existing rules which had not earlier been enforced.” Hyatt Corp. v. NLRB, 939

F.2d 361, 372-73 (6th Cir. 1991). There was substantial evidence on the record for the Board to

conclude that Vanguard began to strictly enforce its once lax policy of charging employees for

overage only after the employees gained Union representation.

The Union election occurred in July 2001. Vanguard states that on at least three occasions

prior to the Union election, it distributed memorandums to employees informing them of the policy

to charge employees for cell phone overage. The Board found that despite the policy and the

frequent occurrence of overage, on only one occasion prior to the Union election was an employee

charged for cell phone overage. The Board concluded that the lack of documentation that Vanguard

charged employees for overage prior to the Union election indicates that such charges did not occur.

Additionally, several Vanguard employees testified that they accrued overage but were never

charged until after Union election. Vanguard began to enforce its overage policy in December of

2002, after the Union election.

Despite Vanguard’s argument that a spreadsheet it submitted to ALJ Locke evidences its

overage charges to sixteen employees prior to Union election, the ALJ expressly discredited the

spreadsheet by stating: “I have little confidence in the accuracy of this list and do not credit it.”

The ALJ’s credibility determination was based on the facts that the list was generated by

Vanguard specifically for the hearing before the ALJ and that the circumstances surrounding the

creation of the list were also troubling. The list was compiled from Post-It notes given to Vanguard’s

accountant, Tim Callahan, by office manager Vandi Young who drafted the Post-It notes from a

verbal communication with Sharon Bishop, the administrative assistant responsible for administering

the cell phone policy. ALJ Locke’s determination that the spreadsheet was not credible evidence,

subsequently adopted by the NLRB, was, and is, entitled to great weight. See Taylor Warehouse

, 98 F.3d at 901(holding that “credibility determinations made by ... administrative law judge[s] and

Nos. 05-2497/2630 Vanguard Fire & Supply Co. v. NLRB Page 10

adopted by the [National Labor Relations Board] (NLRB) are entitled to great weight”). Absent the

discredited spreadsheet, there is no evidence that Vanguard enforced its overage policy until after

the Union election. By beginning to strictly enforce its lax policy of charging employees for overage

only after Union election, Vanguard unilaterally changed a condition of employment without

negotiating with the Union.

III. CONCLUSION

For the foregoing reasons, we hereby AFFIRM and ENFORCE the Order of the Board.