Petition for Writ of Certiorari — USA Polymer Corp. v. National Labor Relations Board
Supreme Court brief2002
Ask Donna
What actually matters in this document.
Text
ipreme Coun, U.S,
-
011392 mar | 82002
No. _ OFFICE OF THE CLERK
In the
Supreme Court of the United States
U.S.A. PoLyMER Corp.,
Petitioner,
V.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
On PetiT:0Nn For Writ OF CERTIORARI
To Tue Unitep States Court OF APPEALS
For Tue Firta Circuit
PETITION FOR WRIT OF CERTIORARI
V. Scott KNEESE
Counsel of Record
BRACEWELL & PATTERSON, L.L.P.
SOUTH TOWER PENNZOIL PLACE
711 LouIsIANA STREET
SurTE 2900
Houston, TX 77002-2781
TELEPHONE: (713) 223-2900
FAcsiMu.E: (713) 221-1212
Counsel for Petitioner
BECKER GALLAGHER LEGAL PUBLISHING, INC.,
CINCINNATI, OHIO 800-890-5001 - 2p?
QUESTIONS PRESENTED FOR REVIEW
Whether the significant passage of time and
other evidence of changed circumstances, such
as employee turnover and a change in
workplace conditions, are sufficient grounds
for the National Labor Relations Board or a
court to decline the issuance of or deny the
enforcement of a Gissel bargaining order and
direct an election be held.
Whether evidence of the passage of time and
changed conditions should be presented after
the National Labor Relations Board's decision
or order and if not, when such evidence should
be presented for the National Labor Relations
Board or a court's review.
Whether the National Labor Relations Board
may issue a Gisse/ bargaining order in favor of
a new union, separate and distinct from the
union selected by company employees,
potentially defeating the contemporary
interests of affected employees.
PARTIES TO THE PROCEEDINGS
Petitioner
1. The Petitioner in this case is U.S.A. Polymer
Corporation. Petitioner is net related to any other publicly
held or publicly-traded companies.
Respondent
y Respondent is the National Labor Relations Board.
li
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ......... i
PARTIES TO THE PROCEEDINGS ............ il
- )) ) iil
oy Fhe Nip) 8 94). rere Vil
CE CEEDU, ..,ccrccctecssvescvsenes l
EI og 6 ape gh 666 0660 ec eae keeads l
STATEMENT OF THE CASE .........:-2.-: l
A. STATEMENT OF FACTS ......... 3
B. PROCEEDINGS BELOW .......... 5
REASONS FOR GRANTING THE WRIT ......... 8
I. THE PASSAGE OF TIME AND CURRENT
CONDITIONS ARE FACTORS THAT
SHOULD BE CONSIDERED WHEN
DETERMINING WHETHER TO ISSUE A
GISSEL BARGAINING ORDER ___.......... . . . 10
A. Many Circuit Courts Consider the
Passage of Time Sufficient to Deny
Enforcement of a Gissel Bargaining
re ee re ee a 10
iil
B. The National Labor Relations Board
Occasionally Considers the Passage of Time
Sufficient to Deny the Issuance of a Gissel
ae ree ee eee 12
i. Other Circuit Courts Have Required
the Board to Consider the Effects of
the Passage of Time and Changed
Circumstances on the Appropriateness
of a Gissel Bargaining Order ........ 14
II. THERE IS NO CLEAR STANDARD .
REGARDING HOW EVIDENCE OF
PASSAGE OF TIME AND CURRENT
CONDITIONS SHOULD BE PRESENTED
TO THE NATIONAL LABOR RELATIONS
DE os wo wk aoe Wee aes eee 16
A. The Board and Fifth Circuit's
Interpretation of the National Labor
Relations Board's Rules’ and
Regulations Is Flawed ............. 16
= B. The National Labor Relations Board
and Circuit Courts' Treatment of
Motions to Reopen Is Inconsistent ..... 19
i The National Labor Relations Board's
Decision to Deny Polymer's Motion to
Reopen Was Erroneous ............ 21
Ill. A GISSEL BARGAINING ORDER SHOULD
NOT BE ENFORCED IN FAVOR OF A
NEW AND DIFFERENT UNION. ......... 24
1V
IV. THE QUESTIONS PRESENTED ARE
IMSPORTANT 6. ccc cctesaesawtansanns 26
COA ic ke ee tan eens Sewanee 27
APPENDIX
Appendix A
Petition for Review of an Order of the
National Labor Relations Board, 1/8/2002 .... la
- Appendix B
Petition for Enforcement of the Order of the
National Labor Relations Board,
SSS =. 5 kha ee ee 3a
Appendix C
National Labor Relations Board Decision and
Order
ORITEIIOED wg ks cs 6h eee eee 17a
Appendix D
USA Polymer Corporation's Motion for
Reconsideration, for Reopening the Record
and for Rehearing,
WIUISF ei 6 Ree 159a
Appendix E
Fifth Circuit Docket
CIEE ok sk 5 ee ee eee 178a
Appendix F :
Letter from Richard D. Hardick to V. Scott
Kneese, W.M. Head, Liane Janovsky
SITES gn 6 6a eh eee ee ees 189a
Appendix G
Letter from V. Scott Kneese to Richard D.
Hardick
10/8/1999 192a
8 & 8. @:2 O66. 6 O.8 84 ee Se Se. |e
vi
TABLE OF AUTHORITIES
Cases
Audubon Reg'l Med. Ctr.,
331 NLRB No. 42(2000) jw... ee ee eee 9, 12, 13
Avecor, Inc. v. NLRB,
931 F.2d 924 (D.C. Cir. 1991) .........5505-- 25
Camvac Int'l, Inc. v. NLRB,
877 F.2d 62 (6th Cir. 1989)............. 14, 19, 20
Charlotte Amphitheater Corp. v. NLRB,
82 F.3d 1074 (D.C. Cir. 1996) ............. 14, 19
Comcast Cablevision of Philadelphia, L.P.,
328 NLRB 487 (1999) .........---22eeeeee: 12, 13
Cooper Hand Tools, A Div. of Cooper Indus., Inc..,
328 NLRB No. 21 (1999) .........-.+5:: 9, 12, 13
Flamingo Hilton-Laughlin v. NLRB,
148 F.3d 1166 (D.C. Cir. 1998) ...........-. 10, 19
Impact Indus., Inc. v. NLRB,
847 F.2d 379 (7th Cir. 1988) .... 2... - 20 eee reese 15
International Longshoreman's Assoc. and Coastal Cargo
Co., Inc.,
323 NLRB 570 (1997) ........22 eee eee ences 23
J.L.M., Inc. v. NLRB,
31 F.3d 79 (2d Cir. 1994) .........22 cece eee: 14
Kessler Inst. for Rehab. v. NLRB,
er ae BGs WUD 6c ci cic ew ne ecasaws 22
Montgomery Ward & Co., Inc. v. NLRB,
904 F.2d 1156 (7th Cir. 1990) ......... 10, 19, 20, 25
NLRB v. American Cable,
roee fo Fu Le Oe | ar 9, 14
NLRB v. Cell Agric. Mfg. Co.,
be Ff le errr er ere ee 14, 15
NLRB v. Dadco Fashions, Inc..,
— € Ff, to A eer areen )
NLRB v. Gissel,
en, on a ahaa ew oo ee kw passim
NLRB v. Jamaica Towing Co.,
b&b fe le || re rr 11
NLRB v. Knogo Corp..,
vii & & Tr Lé& AB, |) re 10, 19, 20
NLRB v. Pace Oldsmobile, Inc..,
739 F.2d 108 (2d Cir. 1984) ............... 19, 20
Overnite Transp. Co. v. NLRB,
2002 U.S. App. LEXIS 2214, No. 99-2494 and
No. 00-1065, (4th Cir. Feb. 11, 2002) ..... 14, 15, 26
Regal Recycling, Inc.,
SaD Wea WOO: SO CISSID ow cc eees 12, 13
Vill
SIA OMEN Con eat eh a SE ORI
Texas Petrochemicals Corp. v. NLRB,
923 F.2d 398 (Sth Cir. 1991) ........ 9, 10, 11, 20, 23
Wallace Int'l de Puerto Rico, Inc.,
28 NLRB No. 3 (1999) ........-- eee eens 12, 13
STATUTES
, Tie Vo G+. |) ere ee ea 1
, 2k Tae 2” rarer eee eee l
eek S&S errr were rrr ee ee aa
\ , et oe Serer 6, 17, 20, 21, 22
29 C.F.R. § 102.48(d)(1) 2. ee eee 17, 18
POC.PR. 6 IGRI) 2c ce wnes 17, 18
, toe @ 2 Sh). rrr ere er ee 22
MISCELLANEOUS
General Counsel Guideline Memorandum 99-8
(November 10, 1999) ........-. 0s eee ee eee: 20
1X
Defendant-Appellant U.S.A. Polymer Corp.
("Polymer") respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for
the Fifth Circuit in this case.
DECISIONS BELOW
The opinion of the Court of Appeals is reported at 272
F.3d 289 (Sth Cir. 2001), and is reproduced in Appendix B.
The decision and order of the National Labor Relations Board
(the "Board") is reported at 328 NLRB 1242 (1999), and 1S
reproduced in Appendix C. The Court of Appeals’ order
denying the petition for panel rehearing is unreported and is
reproduced in Appendix A.
JURISDICTION
The jurisdiction of the United States Court of Appeals
for the Fifth Circuit was invoked under 29 U.S.C. § 160(e)
and the judgment was entered on November 6, 2001. The
Court of Appeals denied Petitioner’s timely petition for panel
rehearing on January 8, 2002. The jurisdiction of this Court
is invoked under 28 U.S.C. § 1254(1).
STATEMENT OF THE CASE
The Board's issuance and the Fifth Circuit's
enforcement of a Gissel bargaining order in this case is wholly
inappropriate.’ A Gissel bargaining order is an extreme
remedy that should only be used when traditional remedies,
such as an election, are insufficient. The propriety of issuing
| The Polymer decision issued a Gissel bargaining order,
as described in NLRB v. Gissel, 395 U.S. 575 (1969).
l
a Gissel bargaining order must be evaluated by the Board in
light of the circumstances that exist at the time the bargaining
order is issued. In the present case, the Board improperly
issued a Gissel bargaining order based on a stale set of facts
that reflected Polymer's workplace in 1995, more than four
years prior to the Board's entry of a bargaining order.
Subsequent to the Board's entry of the Gissel bargaining
order, Polymer filed a Motion for Reconsideration and to
Reopen the Record or for Rehearing with the Board (the
"Motion to Reopen"). App. at 161a-177a.” Polymer filed the
Motion in order to demonstrate that because of the significant
time that passed while the case was before the Board, and the
change in conditions that took place during that time, any
remaining affects of the alleged unfair labor practices had
dissipated, and a fair election could be held. The Board
refused to consider this evidence, and denied the Motion to
Reopen as untimely. App. at 6a. Upon the Board's
application for enforcement of the bargaining order, Polymer
submitted the evidence of passage of time and changed
circumstances to the Fifth Circuit. However, the Fifth Circuit
also refused to consider such evidence, and enforced the
bargaining order against Polymer. The Fifth Circuit also
declined to accept Polymer's argument that the bargaining
order should not be enforced on behalf of a new and different
union, distinct from the union selected by Polymer's
employees.’ App. at 3a-17a.
> Appendix citations appear in the form "App. at X" with
"X" referring to the page number of the Appendix.
> ~ After the Polymer employees signed the authorization
cards, International Ladies' Garment Workers Union ("ILGWU")
began the process of merging with the Amalgamated Clothing and
Textile Workers ("ACTWU") to form the Union of Needle Trades,
Industrial and Textile Employees ("UNITE"). UNITE was created
2
A. Statement of Facts
Polymer began operation in November 1992, as a
small, one-facility recycling business in Houston, Texas.
App. at 4a, 41a. The Company engaged in the business of
recycling used plastic containers into plastic pellets that could,
in turn, be used to produce new consumer products. App. at
4a. At its inception, Polymer employed 64 people, reaching
a peak workforce of 92 in February 1994. App. at 4a-Sa,
41a. When the union filed unfair labor practice charges in
1995, the Company employed approximately 68 non-
supervisory employees. App. at 5a.
Since opening its doors Polymer has been unprofitable.
App. at 44a. From January 1994 through June 1995, Polymer
lost $646, 677. App. at 82a. Numerous problems in the
marketplace plagued Polymer's efforts, as well as those of its
competitors, in the post-consumer recycling industry. App. at
89a-92a. Changes in the regulations governing the post-
consumer recycling industry resulted in increased prices and
a shortage of raw materials needed to produce the recycled
product. App. at 90a-9 1a.
By mid-January 1995, the continued high price and
limited availability of raw materials prevented Polymer from
operating profitably. App. at 83a-88a. Because of these
economic pressures, Polymer carried out a reduction in force.
on July 1, 1995. In the initial action, Case No. 16-CA-17189,
ILGWU was the Charging Party. On August 28, 1995, the
Regional Director issued a second complaint, Case No. 16-CA-
17455, which listed UNITE as the Charging Party. The Board
consolidated the two cases on September 15, 1995. App. at 4a,
40a.
Id. In the initial reduction in force, 29 employees were
released. App. at 5a, 44a. In July 1995, Polymer's
mounting losses required that an additional 10 employees be
released. App. at 5a, 125a. In response to the layoffs in
January 1995, the ILGWU brought charges against Polymer
with the Board, a complaint was issued, and the current
dispute ensued. App. at 5a, 45a. Although the
Administrative Law Judge found that Polymer's reduction in
force in January 1995 was unlawful as motivated by union
animus, the Administrative Law Judge held that the July 1995
layoff was driven by legitimate business needs and not by
union animus. App. at 108a, 131a.
During the more than four and one-half year delay
between the actions leading to the unfair labor practices
allegations in 1995 and the August 24, 1999 bargaining order,
the actors and the workplace at Polymer dramatically
changed. App. at 163a-65a, 172a, 175a-76a. For example,
Polymer increased the level of automation in its production
process, which caused a reduction of its workforce by 30
people. App. at 175a. Positions such as "material handlers"
were no longer necessary because the new automated systems
transferred materials between the grinding and washing phases
of production on its own. App. at 175a-76a. In addition,
Polymer decided to largely discontinue its unprofitable plastic
recycling business, and began manufacturing an entirely new
and distinct product, plastic slip sheets. App. at 176a.
Polymer also experienced a change in ownership and a
corporate reorganization and experienced more than 650%
employee turnover since the organizing campaign of late 1994
and early 1995. App. at 172a, 175a-76a.
Despite the many changes at Polymer and the
extensive passage of time during the case's pendency before
the Board, the Board issued the Gisse/ bargaining order. The
4
Board's decision forces the current Polymer employees to be
represented by a union not in existence at the time the former
Polymer employees signed their authorization cards, a union
that likely does not reflect the desires of Polymer's present
workforce. Indeed, even if the passage of time and changed
circumstances evidence had been properly considered by the
Board, the Board's 1999 bargaining order remains improper
because the union listed on the authorization cards signed by
the employees in 1999 (the ILGWU) no longer exists. The
Board issued the Gissel bargaining order despite the almost
uniform holdings of the Circuit courts (including an earlier
Fifth Circuit decision), which state that the passage of time
and changed circumstances are directly relevant when
determining whether a bargaining order is the appropriate
remedy.
B. Proceedings Below
The Board's General Counsel, acting on charges filed
by the Texas-Oklahoma-Arkansas District Counsel of the
ILGWU, issued a complaint against Polymer on March 21,
1995. App. at 5a. Administrative Law Judge Wallace Nations
in Houston, Texas heard the complaint from June 5, 1995
through June 21, 1995. Id. A second hearing was held
October 17 through October 18, 1995. Jd.
On March 25, 1996, Administrative Law Judge
Nations issued a decision finding that Polymer had violated
Sections 8(a)(1), (3) and (4) of the National Labor Relations
Act ("NLRA"). App. at 5a, 18a. Polymer timely filed
exceptions to that decision on May 10, 1996. App. at Sa. On
August 24, 1999, more than four years after the initial hearing
in this case, and three years after the Administrative Law
Judge's decision, the Board issued a Decision and Order. Id.
Among the holdings of the Board, Polymer was ordered to
5
bargain with UNITE as the duly designated representative of
the employees pursuant to NLRB v. Gissel, 395 U.S. 575
(1969).* App. at 6a.
Following the Board order, on September 24, 1999,
Polymer filed its Motion to Reopen. App. at 161la.° In that
motion, Polymer provided the Board with new evidence of
events occurring during the four years this case languished at
the Board. App. at 161la-77a. Such evidence establishes that
a bargaining order is an improper remedy.
On October 5, 1999, Polymer received a letter from
Richard D. Hardick, Associate Executive Secretary to the
Board, informing Polymer that the Motion to Reopen was
being considered untimely and would not be "forwarded to the
Board for consideration."° App. at 190a-9la. On October 8,
1999, Polymer sent a letter to Associate Secretary Hardick
and simultaneously filed a Supplemental Motion to Reopen,
contesting the validity of Associate Secretary Hardick's
decision not to forward the original Motion to Reopen to the
* In Gissel, the Supreme Court recognized that an
employer may, under limited circumstances, be ordered to bargain
with a union if unfair labor practices preclude the holding of a fair
election, where the union has shown convincing support by
possession of cards signed by a majority of the employees
authorizing the union to represent them. See Gissel, 395 U.S. at
597.
. In accordance with the language of 29 C.F.R.
§ 102.48 (2000), Polymer moved to reopen the record “after the
Board decision or order."
° As discussed below, Polymer contends that the Motion
to Reopen was properly before the Board.
6
Board for proper consideration. App. at 192a-98a. On
November 23, 1999, after both parties submitted their
arguments in support of their positions, a divided Board, with
Member (now Chairman) Hurtgen dissenting, ordered that
Polymer's Motion to Reopen would not be considered. App.
at 6a.
On March 6, 2000, the Board filed an application for
enforcement with the Fifth Circuit seeking enforcement of its
August 24, 1999 Order. App. at 6a-17a. In the opinion
issued on November 6, 2001, the Fifth Circuit granted the
Board's application for enforcement. App. at 3a-17a. On
December 20, 2001, Polymer filed its Petition for Panel
Rehearing. App. at 186a. Polymer urged the following
arguments: (1) the Fifth Circuit failed to adequately consider
the long and unjustified delay of the Polymer case before the
Board; (2) a bargaining order should not be enforced on
behalf of a separate and distinct union; and (3) there is no
clear standard regarding how evidence of passage of time and
changed circumstances should be presented to the Board. On
January 8, 2002, the Fifth Circuit denied Polymer's Petition
for Panel Rehearing, and issued its mandate on January 16,
2002. App. at 186a-87a. On February 14, 2002, Polymer
filed a Motion for Partial Recall and Stay of Mandate. App.
at 187a. Polymer seeks review from this Court on the
appropriateness of the issuance of the Gissel bargaining order.
REASONS FOR GRANTING THE WRIT
As the Fifth Circuit acknowledged in its Polymer
decision, "[t]he Federal Circuit courts are almost unanimous
in holding that the Board must take current conditions into
account when it determines whether to issue a bargaining
order under NLRB v. Gissel Packing Co. 395 U.S. 575
(1969)." App. at 7a. The Fifth Circuit went on to note that
all Circuits except the Ninth take current conditions into
account when deciding whether to enforce Gissel bargaining
orders. App. at 7a. Before the Polymer decision, there was
a split between the Ninth Circuit and all other Circuit courts
that have addressed the issue regarding whether current
conditions should be considered. The District of Columbia,
Second, Fourth, Fifth, Sixth, Seventh and Eighth Circuits
have all held that the passage of time and changed
circumstances are directly relevant when determining whether
to issue a bargaining order. By refusing to consider the effect
of the passage of time and changed circumstances in this case,
the Fifth Circuit appeared to now align itself with the Ninth
Circuit. At the very least, the Fifth Circuit refused to
consider the fact that the significant passage of time may
defeat all contemporary interests. Moreover, the passage of
time is a fact that the Board or the Court may take notice -of
on their own--the party arguing for denial of a bargaining
order need not argue it because the fact that a significant
amount of time has passed speaks for itself.
In issuing its enforcement of the Gissel bargaining
order, the Fifth Circuit also acknowledged that "despite the
weight of the law in other Circuits, the law on this point in
the Fifth Circuit is somewhat confused." App. at 9a. Over
the past few decades, the Fifth Circuit has been inconsistent
in its treatment of bargaining orders issued after a significant
passage of time and changed circumstances. In 1970, the
8
Fifth Circuit held that the Board must consider current
circumstances when determining whether to issue a bargaining
order. See NLRB v. American Cable, 427 F.2d 446 (Sth Cir.
1970). In 1980, the Fifth Circuit stated that the Court should
evaluate the appropriateness of a bargaining order as of the
date of the unfair labor practice proceedings. See NLRB v.
Dadco Fashions, Inc., 632 F.2d 493, 497 n.7 (Sth Cir. 1980).
In 1991, the Fifth Circuit reversed direction and remanded a
case to the Board where it failed to consider the passage of
time. See Texas Petrochemicals Corp. v. NLRB, 923 F.2d
398, 401 (Sth Cir. 1991). With Polymer, the Fifth Circuit
reversed itself again by declining to consider the effects of the
passage of time. App. at 3a-17a.
In recent years, the Board has also repeatedly issued
conflicting decisions. In some cases, the Board has declined
to issue bargaining orders after a significant passage of time.
See, e.g., Audubon Reg'l Med. Ctr., 331 NLRB No. 42
(2000); Cooper Hand Tools, A Div. of Cooper Indus., Inc.,
328 NLRB No. 21 (1999). However, in Polymer, the Board
issued a bargaining order, despite the four years that passed
while the case was before the Board. App. at 18a-19a.
Because of the uncertainty regarding these issues at the Board
and Circuit court level and the split among the Circuits, the
need for guidance from the Court is crucial. This case is a
rare and timely opportunity to provide this guidance, or the
Board and Circuit courts will continue to confuse an already
complicated issue. Moreover, the Court's opinion is needed
to explain when companies should present evidence of the
passage of time and changed conditions to the Board. In
addition, the Court should grant this Petition because clarity
is needed as to whether the Board may issue a bargaining
order on behalf of a new union, a union different from the one
selected by employees.
I. The Passage of Time and Current
Conditions are Factors that Should be
Considered when Determining Whether to
Issue a Gissel Bargaining Order
A. Many Circuit Courts Consider the
Passage of Time Sufficient to Deny
Enforcement of a Gissel Bargaining
Order
During the course of the Polymer proceedings, the
Board and the Fifth Circuit failed to give adequate
consideration to the significant amount of time that passed
between the allegations of unfair labor practices against
Polymer in 1995 and the Board's decision in 1999. There
have been a number of recent cases before the Board and
Circuit courts where bargaining orders were either not issued
or not enforced because of the passage of a significant amount
of time between the unfair labor practices and the issuance of
a bargaining order.
A number of Circuit courts have held that the Board
must consider the effects of the passage of time when deciding
whether to issue a bargaining order. The Second, Fifth,
Seventh, and District of Columbia Circuit courts have all
denied enforcement of bargaining orders and remanded cases
to the Board so that the effects of the passage of time could be
considered. See Flamingo Hilton-Laughlin v. NLRB, 148 F.3d
1166(D.C. Cir. 1998); Texas Petrochemicals Corp. v. NLRB,
923 F.2d 398 (Sth Cir. 1991); Montgomery Ward & Co., Inc.
v. NLRB, 904 F.2d 1156 (7th Cir. 1990); NLRB v. Knogo
Corp., 127 F.2d 55 (2d Cir. 1984). These courts hold that
the passage of time is directly relevant to the adequacy of
traditional remedies, such as an election, and therefore should
be considered when determining the appropriate remedy for
10
—————o-—-—-—--—=237272373:~]C]})si<iSe
allegations of unfair labor practices. See id. Passage of time
is relevant because the negative effect of unfair labor practices
may have dissipated during the considerable lapse of time
between the occurrence of alleged unfair labor practices and
the issuance of a bargaining order. NLRB v. Jamaica Towing
Co., 632 F.2d 208 (2d Cir. 1980). Moreover, a union may
no longer retain majority status if a significant amount of time
has passed. See id. The Fifth Circuit also remanded a case
where the Board refused to ascertain the employees’ current
desires after fours years passed between the Administrative
Law Judge's decision and the Board's decision. Texas
Petrochemicals Corp., 923 F.2d at 401. In Texas
Petrochemicals Corp., the Court remanded the case to the
Board because of the Board's “unprovoked and inordinate
delay in deciding the case..." Id.
More than four and a half years passed between the
time the unfair labor practices allegations were brought
against Polymer and the time of the Board's decision. This
unexplained delay was not due to any delay on Polymer's
part; the Board was entirely responsible for the lapse of time.
Any remaining effects of the alleged unfair labor practices
dissipated in the period of time that the decision languished
before the Board. The Fifth Circuit ignored the delay in the
Polymer decision, the different climate presently at Polymer
compared with the climate in 1995, and the weight of other
Circuit courts, (including its own precedent) by enforcing the
Gissel bargaining order against Polymer. The Fifth Circuit's
inconsistent opinions, coupled with the decisions of other
Circuits, make this issue ripe for consideration by this Court.
11
B. The National Labor Relations Board
Occasionally Considers the Passage of
Time Sufficient to Deny the Issuance
of a Gissel Bargaining Order
Some recent Board decisions have also held that the
passage of time is sufficient to deny a Gissel bargaining order.
Five Board decisions were issued in 1999 and 2000, all of
which addressed allegations of unfair labor practices similar
to those at Polymer. The Board issued all five of these
decisions shortly before or shortly after its decision in
Polymer. In all five cases, the Board declined to issue a
bargaining order, stating that it was unlikely a court would
enforce the orders because of the long delay at the Board. In
Audubon Reg'l Med. Ctr., 331 NLRB No. 42 (2000), more
than four years had passed since the union initially petitioned
the company for recognition. The Board declined to issue a
bargaining order because such an order would likely be
unenforceable in the courts due to the long delay at the Board.
In Cooper Hand Tools, A Div. of Cooper Indus., Inc., 328
NLRB No. 2! (1999), the Board again declined to issue a
bargaining order, holding that such an order would likely be
unenforceable because of the more than three year delay at the
Board. In Comcast Cablevision of Philadelphia, L.P., 328
NLRB 487 (1999), the Board held that the bargaining order
was unenforceable because of a three and a half year Board
delay. In Regal Recycling, Inc., 329 NLRB No. 38 (1999),
the Board again recognized that courts will not enforce a
bargaining order where there has been a significant passage of
time (four and one half years) between the alleged unfair labor
practices and the issuance of the bargaining order. The Board
found that the employees’ interests were best served by an
election. In Wallace Int'l de Puerto Rico, Inc., 328 NLRB
No. 3 (1999), the Board again declined to issue a bargaining
12
order because of the long and unjustified delay before the
Board.’
The Board decisions in Comcast, Cooper Hand Tools,
and Wallace International were issued in 1999, shortly before
the Board's decision in Polymer. Like the Polymer decision,
these decisions all involved three to four year delays at the
Board. In all three decisions, the Board declined to issue a
bargaining order because of the Board's "long and unjustified
delay in processing the case," which would likely render a
bargaining order unenforceable. See id. The Board stated
that "rather than engender further litigation and delay over the
propriety of a bargaining order, we believe that employee
rights would be better served by proceeding directly to a
second election." See id.
In September 1999, the Board issued its decision in
Regal Recycling, approximately five years after the
Administrative Law Judge's decision. In 2000, the Board
issued its Audubon Reg'l Med. Ctr. decision, approximately
three years after the Administrative Law Judge's decision.
Both of these decisions, issued shortly after the Polymer
decision, involved allegations of unfair labor practices similar
to Polymer. However, despite the finding of hallmark unfair
labor practices, the Board declined to issue a bargaining order
because of the lengthy and unexplained delay at the Board,
and stated that an election would better serve the employees.
7 Perhaps most importantly, there is no mention of a
Motion to Reopen in the Regal Recycling and Wallace International
decisions. At least on occasion, the Board in recent years has
considered the passage of time on its own, without the company
filing a Motion to Reopen.
13
Despite the temporal proximity of these Board
decisions, the Board has never explained why it reached a
different result in Polymer. Nor did the Fifth Circuit seek an
explanation as to why similar facts produced schizophrenic
outcomes. The Fifth Circuit also ignored other Circuits, that
have held that the passage of time must be considered when
deciding whether to enforce a bargaining order, to ensure that
employees’ contemporary interests are protected. This Court
should grant Polymer's petition to resolve these conflicts at
the Board and Circuit court levels, and correct the Fifth
Circuit's error.
c. Other Circuit Courts Have Required
the Board to Consider the Effects of
the Passage of Time and Changed
Circumstances on the Appropriateness
of a Gissel Bargaining Order
When a significant passage of time between the unfair
labor practices and the Board's issuance of a Gisse/ bargaining
order is coupled with a change in circumstances at the
workplace, there is significant case law in favor of elections
instead of a Gissel bargaining order. Many Circuit courts
have refused to enforce Gissel bargaining orders where
extensive changes have taken place at the workplace while the
cases were stalled at the Board. See Overnite Transp. Co. v.
NLRB, No. 99-2494 and No. 00-1065, 2002 U.S. App. LEXIS
2214 (4th Cir. Feb. 11, 2002); Charlotte Amphitheater Corp.
v. NLRB, 82 F.3d 1074, 1078 (D.C. Cir. 1996); J.L.M., Inc.
v. NLRB, 31 F.3d 79 (2d Cir. 1994); NLRB v. Cell Agric.
Mfg. Co., 41 F.3d 389 (8th Cir. 1994); Camvac Int’l, Inc. v.
NLRB, 877 F.2d 62 (6th Cir. 1989). As stated earlier, the
Board is to determine the appropriateness of a Gissel
bargaining order in light of circumstances at the workplace at
the time the bargaining order is issued. See American Cable
14
Sys., 427 F.2d at 448-49 (holding that "no bargaining order
should be issued unless at the time the Board issues such
- order it finds the electoral atmosphere unlikely to produce a
fair election"). In deciding whether to issue a Gissel
bargaining order, the Board therefore must consider
circumstances that may have changed during the pendency of
the matter before the Board. See Cell Agric. Mfg. Co., 41
F.3d at 398. The Board should consider such critical factors
as turnover in the workforce and change if management, as
well as the passage of time. See Impact Indus., Inc. v. NLRB,
847 F.2d 379 (7th Cir. 1988) (enforcement denied after more
than seven year delay and 87 percent workforce turnover and
change in management).
Recently, in Overnite Transportation Co., the Fourth
Circuit overturned the Board's issuance of a Gissel bargaining
order, and ordered new elections at four Overnite service
centers. See Overnite Transp. Co., 2002 U.S. App. LEXIS
2214. Although the Court agreed with the Board that there
were numerous unfair labor practices, the Court held that the
requirements for a Gissel bargaining order were not met
because the passage of time (and employee turnover) were
"improperly ignored by the Board as irrelevant." See id. at
*51. The majority further stated:
by so limiting its consideration of the events
following the unfair labor practices, the Board
cannot make the necessary and detailed
findings about the possibility of conducting a
fair election years after the unfair labor
practices occurred...Moreover, and perhaps
more importantly, in taking this position, the
Board refuses to follow the clear and
established precedent of this Circuit that both
the passage of time and employee turnover are
15
highly relevant matters to be considered.
See id. at *51-52.
During the four years the Board delayed in issuing its
case in Polymer, Polymer experienced a tremendous amount
of employee turnover, a complete change in management, and
also introduced a new product which utilized different
machinery and processes altogether. The current conditions
at Polymer are drastically different now than they were seven
years ago at the time of the unfair labor charges. However,
the Fifth Circuit failed to consider these changed current
circumstances. Thus, this Court should grant Polymer's
petition to resolve the split in the Circuits and to emphasizé
the importance of considering a change in workplace
conditions over the passage of time to ensure that the
extraordinary remedy of a Gissel bargaining order is issued
only in those circumstances where a fair election remains
impossible.
II. There is No Clear Standard Regarding How
Evidence of Passage of Time and Current
Conditions should be Presented to the |
National Labor Relations Board
A. The Board and Fifth Circuit's
Interpretation of the National Labor
Relations Board's Rules and
Regulations is Flawed
In its opinion, the Fifth Circuit upheld the Board's
decision to deny Polymer's Motion to Reopen as untimely.
The Fifth Circuit further stated that it was “not the Board's
responsibility to continually update the factual picture that the
parties have provided," and that "the party that seeks to
16
benefit from demonstrating a change of circumstances bears
the burden of timely providing the Board with evidence of
those changes." App. at 14a. The Fifth Circuit went on to
assert that "the Board is entitled to assume, in the face of the
parties’ silence, that the facts as initially presented continue to
adequately describe the employer's workforce." See id.
These statements by the Fifth Circuit, as well as the Board's
actions, suggest that an employer is under a continuous
obligation to supplement the factual record while a case is
pending before the Board. This suggestion is unsupported by
authority and directly contradicts the plain language of
Section 102.48(d)(1)-(2) of the Board's Rules and
Regulations. 29 C.F.R. § 102.48 (2000).
Section 102.48(d)(1) states that "[a] party to a
proceeding before the Board may, because of extraordinary
circumstances, move for reconsideration, rehearing, or
reopening of the record after the Board decision or order."
Section 102.48(d)(1) also requires that "[a] motion to reopen
the record shall state...why [the evidence sought to be
introduced] would require a different result." The Board
asserted that Polymer should have filed its Motion to Reopen
sometime between the time the charge was brought in 1995
and the time the Board issued its decision in August 1999.
App. at 14a-15a. In its opinion, the Fifth Circuit affirmed
this assertion. Jd. However, the Board's assertion and the
Fifth Circuit's affirmation contradict what the Board's own
Rules and Regulations require.
iii Ai ili tian i etic A AMIGA PG anh nt 0 “
In upholding the Board's refusal to reopen the record,
the Fifth Circuit stated that Section 102.48(d)(2) obligated
Polymer to continually update the factual record during the
pendency of the case before the Board. App. at 14a. In
relevant part, the regulation states that "[a]ny motion pursuant
to [Section 102.48] shall be filed within 28 days, or such
17
further period as the Board may allow, after the service of the
Board's decision or order, except that a motion for leave to
adduce additional evidence shall be filed promptly on
discovery of such evidence." However, the Board's
interpretation of Section 102.48(d)(2) is flawed. Namely, the
Board's reading completely eviscerates the language of
Section 102.48(d)(1) which states that a motion to reopen the
record should not be filed until "after the Board decision or —
order." 29C.F.R. § 102.48(d)(1). The Board's interpretation
of Section 102.48(d)(2), which the Fifth Circuit upheld,
would only serve to encourage delay, because each party
would be forced to continually update the factual record
during the long years the case was before the Board. In
addition, although the Fifth Circuit stated that the Board
should take "current" conditions into account when
determining whether to issue a bargaining order, the Fifth
Circuit does not explain the term "current." App. at 16a.
The Fifth Circuit does not connect "current" to any particular
point in time--does "current" refer to conditions after the
Administrative Law Judge's decision, sometime during the
Board's proceedings, or the present? Logically, it seems that
"current" would mean the "present." Indeed, under the
Board's reading of Section 102.48, an employer will always
be unsuccessful in its attempt to introduce new evidence to the
Board: if the employer abides by Section 102.48(d)(1), and
waits until after the Board's decision or order to file its
motion to reopen, the evidence contained in the motion would
likely be precluded by the Board's interpretation of Section
102.48(d)(2), which is that the motion should have been filed
at some earlier time. At the very least, the Board and Fifth
Circuit's reasons for refusing to consider the evidence in
Polymer's Motion to Reopen ignore the passage of time, a
fact that stands on its own and need not be asserted in a
Motion to Reopen. Moreover, the reasoning overlooks the
injustice that could result by enforcing a bargaining order
18
Panes. cliyy
where an election would produce a fair result and would
provide greater protection to contemporary interests.
B. The National Labor Relations Board
and Circuit Courts' Treatment of
Motions to Reopen is Inconsistent
In addition to the confusion resulting from the Board's
interpretation of its own Rules and Regulations in the Polymer
case, additional Board and other Circuit court decisions only
further cloud the issue. A review of other Board and Circuit
court decisions indicates that there is no clear identifiable time
when evidence of the passage of time and changed
circumstances should be presented to the Board. In some
situations, evidence was presented before the Board issued its
decision. See Flamingo Hilton-Laughlin, 148 F.3d 1166;
Charlotte Amphitheater Corp., 82 F.3d 1074. However, even
where the company presented evidence of passage of time and
changed circumstances during the Board proceedings, this
evidence was disregarded by the Board. In the two cases
above, the D.C. Circuit remanded to the Board so that the
passage of time and evidence of changed circumstances could
be more thoroughly evaluated. See id. Upon remand, the
Board withdrew the bargaining orders, holding that because
of the passage of time and changed circumstances, a
bargaining order would likely be unenforceable.
In other similar Board proceedings, companies
requested a motion to reopen the record after the Board issued
its decision (in accordance with the Board's Rules and
Regulations), in order to introduce evidence of the passage of
time and changed circumstances. As in Polymer, the Board
denied all these motions and ignored the relevant evidence.
See Montgomery Ward & Co., 904 F.2d 1156; Camvac Int'l,
Inc., 877 F.2d 62; Knogo Corp., 127 F.2d 55; NLRB v. Pace
19
Oldsmobile, Inc., 739 F.2d 108 (2d Cir. 1984). The Courts
in Montgomery Ward, Camvac, Knogo and Pace Oldsmobile
all remanded the cases to the Board, stating that evidence of
passage of time and changed circumstances should have been
considered. These cases were remanded even where the
motions to reopen were filed beyond the 28 days provided in
29 C.F.R. 102.48. In Knogo, the Board issued the bargaining
order on July 27, 1982 and Knogo did not file its Motion to
Reopen until November 10, 1982 (three and a half months
later). Although the Board denied the Motion, the Court
ultimately remanded to the Board so that evidence regarding
the passage of time and changed circumstances could be
considered. See Knogo Corp., 127 F.2d 55. In Pace
Oldsmobile, the Board issued its decision on December 16,
1982. Pace Oldsmobile filed a Motion to Reopen nine months
later, on August 18, 1983, which was denied. Upon the
Board's application for enforcement, however, the Court
declined to enforce the bargaining order because the Board
failed to consider evidence of changed circumstances and
passage of time. See Pace Oldsmobile, Inc., 739 F.2d 108.
Most importantly, in the Texas Petrochemicals decision, the
Fifth Circuit, despite the untimeliness of the Motion to
Reopen, remanded to the Board with instructions to consider
the current conditions at the company in order to determine if
a bargaining order was appropriate. See Texas Petrochemicals
Corp., 923 F.2d 398.
In addition, the General Counsel of the Board outlined
criteria in a recent Memorandum that the Board considers
relevant when "determining whether to impose a Gissel
bargaining order remedy." General Couns. Mem. 99-8, at 2
(November 10, 1999). The General Counsel listed the
"change in circumstances after the violations" as a relevant
factor. See id. The General Counsel conceded that "the
courts are almost unanimous in requiring that the Board
~
20
consider the relevance of changed circumstances. The Ninth
Circuit is the only circuit which does not require the Board to
consider post-hearing changed circumstances." See id. at
n.48. However, the General Counsel also acknowledged that
"the Board generally denies respondent's motions to reopen
the record to consider such evidence." See id.
By refusing to consider the evidence of the passage of
time and changed circumstances at the Polymer facility, the
Board disregarded its own precedent, as well as its General
Counsel's guidelines. Recently, the Board has recognized (in
decisions issued around the same time as Polymer) _ that
bargaining orders issued after a long delay at the Board level
will not be enforced by a reviewing court, especially in cases
where the passage of time is coupled with a change in current
conditions. The same reasoning should apply here. A fair
election is now possible at Polymer because any negative
effects of the alleged unfair labor practices have long since
dissipated. Therefore, the Court should grant certiorari to
provide guidance to the Board and Courts on motions to
reopen, and to determine the appropriate situations for courts
to remand cases to the Board so that evidence of passage of
time and changed circumstances may be considered.
c. The National Labor Relations Board's
Decision to Deny Polymer's Motion to
Reopen was Erroneous
The Board denied Polymer's Motion to Reopen as
untimely. Polymer filed its Motion to Reopen a month after
the Board issued its decision, three days beyond the 28 day
guideline specified in 29 C.F.R. § 102.48 (2000). Polymer's
delay in filing the Motion to Reopen was partially caused by
the fact that Polymer did not receive a copy of the Board's
decision and order until August 30, 1999, although the Board
21
rendered its decision and order on August 24, 1999. App. at
193a. Although the Motion to Reopen was timely filed
according to the Federal Rules of Civil Procedure (as well at
the Board's former rules), the Board's current rules calculate
the 28 day guideline from the date the Board issues its
decision.* See FED. R. Civ. P. 6(e); Kessler Inst. for Rehab.
v. NLRB, 669 F.2d 138, 139-40 (3d Cir. 1982) (illustrating
the Board's earlier adherence to the "three day" rule, which
adds three days to a filing period when items are served by
mail).
In addition, according to the language clearly stated in
Section 102.48, the Board has the discretion to consider
motions filed beyond the 28 days. Specifically, Section
102.48 states that the motion to reopen should be filed within
28 days, "or such further period as the Board may allow." 29
C.F.R. § 102.48. Despite this discretionary language, and
the Board's own delays in issuing the decision in this case, the
Board strictly enforced Section 102.48 against Polymer, and
declined to grant the Motion. The Board denied the Motion
as untimely, despite the fact that the Board deliberated for
four years. In addition, Section 102.111(c) of the Board's
Rules and Regulations permits late-filed documents in unfair
labor practices cases. 29 C.F.R. § 102.111(c) (2000). The
8 Specifically, Rule 6(e) of the Federal Rules of Civil
Procedure explicitly requires that an additional three days be added
to a filing period when items are served on a party by mail. The
wisdom and equity of this "three day" rule is clearly exhibited by
the facts of this case. Even as calculated from the date of the
Board's decision, rather than the date Polymer received notice of
that decision, the "three day" rule would establish that the Motion
to Reopen was timely filed within the 28-day period. The “three
day" rule prevents precisely this kind of unfair prejudice from
occurring.
22
Board decides whether to accept cases under this section by
determining whether any prejudice would result and whether
the neglectful conduct was excusable. See, e.g., International
Longshoreman's Assoc. and Coastal Cargo Co., Inc., 323
NLRB 570, 573 n.1 (1997) (granting motion under
Section 102.111(c) based on employer's showing "that its
noncompliance was inadvertent" and no prejudice would
result from one day delay in filing). The Board's denial
seems especially harsh considering the Board was aware, as
Member (now Chairman) Hurtgen observed, that Polymer
was in the process of transferring the case from the retiring
attorney who previously handled the matter to Polymer's
present attorney. App. at 14a-15a. For a new attorney to
become acquainted with the facts of the case in the middle of
a proceeding is challenging, and the Board's refusal to
consider the Motion because of a three day delay is
particularly unfair. However, even after denying the Motion
because it was three days late, the Board waited five months
before applying to the Fifth Circuit for enforcement of the
bargaining order. In light of the Board's delay, it is unseemly
for the Board to have denied Polymer's Motion to Reopen
because of the Board's interpretation of barely missed time
limits. It was within the Board's discretion to consider the
new evidence to ensure that it provided Polymer employees
with the appropriate remedy. The Fifth Circuit also had the
authority to remand the case to the Board for consideration of
new evidence, as it has in the past. Texas Petrochemicals
Corp., 923 F.2d at 401. Therefore, this Court should grant
certiorari to provide guidance regarding when the Board
‘should grant Motions to Reopen, even when those motions are
untimely, so that the evidence and effects of the passage of
time may be considered.
23
Ill. A Gissel Bargaining Order Should Not be
Enforced in Favor of a New and Different
Union
A Gissel bargaining order should not be issued for a
union that is separate and distinct from the union selected by
the employees; a point not adequately considered by the Board
and totally ignored by the Fifth Circuit. In Gissel, the
Supreme Court recognized that an employer may, under
limited circumstances, be ordered to bargain with a union
where the union proves majority status through possession of
cards signed by a majority of the employees, authorizing the
union to represent them. See Gissel, 395 U.S. at 597.
However, the Polymer employees did not sign cards
authorizing UNITE to bargain on their behalf. The Polymer
employees signed cards indicating they wished the ILGWU to
be their bargaining representative. Some six months after the
Polymer employees signed the ILGWU authorization cards,
the ILGWU ceased to exist because it was replaced by
UNITE. The Polymer employees only knew about the
ILGWU, and it was the only union listed on the Polymer
employees’ authorization cards. Once the ILGWU
disappeared, the Polymer employees that were ILGWU
Signatories were to be moved to the newly formed UNITE,
without being provided any notice or having the opportunity
to vote. In fact, there is no evidence or findings to indicate
that the Polymer employees were even aware that they were
being moved to UNITE. Moreover, there is no evidence to
support any assertion that the Polymer employees would want
to be part of UNITE. Research has not revealed any case
where a Gissel bargaining order was granted on behalf of a
totally different union from the one named on the
authorization cards bearing the employee signatures. By
enforcing a bargaining order on behalf of a new and different
24
—
union, the Fifth Circuit has exceeded the scope of the Gissel
decision.
Moreover, enforcing a bargaining order on behalf of
a union that was not selected by the employees risks thwarting
the preferences of current Polymer employees. See
Montgomery Ward & Co., 904 F.2d at 1161. This risk is
increased by the fact that approximately seven years have
passed since the Polymer employees first signed the ILGWU
authorization cards. The Montgomery Ward decision stated:
the people who work at the Pharr store in 1990
might want Local 455 of the Food Workers
Union to represent them, we don’t know this.
They might want some other union, or no
union. Local 455 might not want them (a
possibility suggested by its failure to intervene
in support of the Board's order or file an
amicus brief). A bargaining order today based
on events a decade ago may defeat all
contemporary interests.
See id.’ To protect these contemporary interests, the Board
should issue bargaining orders only in extraordinary
circumstances: "a bargaining order is not a snake-oil cure for
whatever ails the workplace; it is an ‘extreme remedy,’ that
must be applied with commensurate care." Avecor, Inc. Vv.
NLRB, 931 F.2d 924, 938-39 (D.C. Cir. 1991). Therefore,
the Fifth Circuit erred in enforcing the bargaining order in
* During the course of the Polymer proceedings, UNITE
has not intervened in support of the Board's order or filed an
amicus brief with the Fifth Circuit seeking enforcement of the
order.
25
favor of UNITE, because such enforcement fails to consider
the preferences of the current Polymer employees. This
Court should grant certiorari to correct this error and to
establish clear precedent on this issue.
IV. The Questions Presented are Important
_ In the recent Overnite decision, Judge Paul V.
Niemeyer wrote for the majority: "by declining to follow our
long-standing precedents for the application of Gissel, the
Board improperly bypassed the employees' will on the
question of representation, frustrating the fundamental policy
of employee democracy established by Congress in the labor
laws." See Overnite Transp. Co., 2002 U.S. App. LEXIS 2214
at *5. The Fifth Circuit's decision in Polymer disregards this
fundamental policy of employee democracy, overlooking a
lengthy passage of time at the Board and a significant change
in circumstances. In doing so, the Fifth Circuit has defeated
the contemporary interests at Polymer. Charges of unfair
labor practices continue to languish before the Board, and the
Board lacks a clear standard regarding whether the passage of
time and the changes that occur at the workplace during this
amount of time are a sufficient grounds to decline the issuance
of a bargaining order. The Circuit courts also lack a clear
standard for these issues. The majority of Circuit courts have
held that the passage of time and a change in current
workplace conditions are significant grounds for denying
enforcement of or overturning a bargaining order, and should
be considered regardless of when evidence of these factors is
presented. These courts, including the Fifth Circuit, have
held that current conditions are directly relevant and must be
taken into account when deciding whether to issue a
bargaining order. The Fifth Circuit's decision in Polymer
contradicts the majority of Circuit courts and further confuses
the issue by failing to consider the passage of time and
26
NET ee ee
changed circumstances. So long as this standard remains
confused, the Board will continue to issue Gissel bargaining
orders inconsistently, which after further delay, will be denied
by most Circuit courts. A decision by this Court would
relieve the burden on the Board and the Circuit courts that
continue to grapple with this issue. Most importantly, issuing
a bargaining order years after the employees select the union
risks trampling on the employees' rights to select an
appropriate bargaining representative. This risk is only
exacerbated by the fact that, as in Polymer, employees at a
company may be represented by a union new and different
from the one they actually selected as their bargaining
representative. Elections are the preferred method for
determining a bargaining representative. After seven years,
a fair election could be held at Polymer. The extraordinary
remedy of a Gissel bargaining order should be reserved for
cases where an election is not possible.
CONCLUSION
The petition for a writ of certiorari should be granted
because: (1) the Board and Fifth Circuit's refusal to consider
the passage of time and other evidence of changed
circumstances raises important issues in the context of Gissel
bargaining orders, and the Circuit courts are divided on this
issue; (2) evidence of passage of time and changed conditions
is important, and the Board needs guidance regarding the
appropriate time to consider such evidence; and (3) the
Board's issuance of a Gissel bargaining order in favor of a
new and distinct union other than the one selected by
employees raises an important issue regarding the scope and
purpose of the Board's remedial authority.
27
Respectfully submitted,
V. Scott Kneese
TBA 11591000
Bracewell & Patterson, L.L.P.
South Tower Pennzoil Place
711 Louisiana St., Suite 2900
Houston, Texas 77002-2781
Telephone: (713) 223-29000
Facsimile: (713) 221-1212
ATTORNEY FOR PETITIONER
U.S.A. POLYMER CORP.
28
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60173
[Dated January 8, 2002]
NATIONAL LABOR RELATIONS BOARD
Petitioner
V.
USA POLYMER CORP
Respondent
Nee eee eae eel
Petition for Review of an Order of the
National Labor Relations Board
ON PETITION FOR REHEARING
BEFORE GARWOOD, PARKER, and DENNIS,
Circuit Judges.
AR Ae a capes AMIS RAMEN Saale eae RR RRL BE
PER CURIAM:
IT IS ORDERED that the petition for rehearing is
DENIED.
la
ENTERED FOR THE COURT:
/s/
United States Circuit Judge
2a
hte Ue reney Oy Sete, Cer one
oP a ale o a he Perce v
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60173
[Filed November 6, 2001]
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
USA POLYMER CORP,
)
)
)
V. )
)
)
Respondent. )
)
On Appeal From
National Labor Relations Board
Cases 16-CA-17189 and 16-CA-17455
August 24, 1999
JUDGES:
Before GARWOOD, PARKER, and DENNIS,
Circuit Judges.
3a
Fifth Circuit Petition for Enforcement - 11/06/01
Petition for Enforcement of the Order of the National
Labor Relations Board
GARWOOD, Circuit Judge:
Acting on charges filed by the International Ladies
Garment Workers' Union (ILGWU), the General Counsel of
the National Labor Relations Board (the NLRB or the Board)
issued a complaint against U.S.A. Polymer Corp. (Polymer)
on March 21, 1995. The complaint alleged violations of 29
U.S.C. §158(a)(1) and (3), and eventually was consolidated
with a subsequent complaint alleging violations of section
158(a)(4), (3), and (1). An administrative law judge (ALJ)
issued a decision on March 25, 1996, finding merit in most of
the allegations. Polymer filed timely exceptions. The NLRB
issued a decision affirming the ALJ's conclusions on August
24, 1999. Polymer filed a motion for reconsideration, to
reopen the record, and for rehearing dated September 24,
1999, which was received by NLRB on September 29. On
October 5, the Associate Executive Secretary of the NLRB
denied the motion as untimely. On October 8, Polymer filed
a supplemental motion for reconsideration, reopening, and
rehearing, which the Board denied on November 23. In
March 2000 the Board filed with this court its application for
enforcement of its August 24, 1999 order. 29 U.S.C.
§160(e). ”
Facts and Proceedings Below
Polymer operates a plastics recycling facility in
Houston, Texas. Its business is to recycle used plastic
containers into plastic pellets that are then sold as raw
material to manufacturers. Polymer employed sixty-four
4a
Paice 8 WRN)
AEG PEAR AR AGRON MRE OB RED GATAT TL te ich yah
Ni biatch:
Fifth Circuit Petition for Enforcement - 11/06/01
people at its inception, and reached a peak workforce of
ninety-two in February 1994. At the time of the events that
were the subject of the instant complaint, Polymer employed
sixty-eight non-supervisory employees, but since then the
work force has dwindled to thirty-six.
In the fall of 1994, some of Polymer's employees
contacted the ILGWU. In early October, the ILGWU began
a campaign to unionize Polymer's workers. In January 1995,
Polymer laid off twenty-nine employees, and then another ten
in July. Since 1995, the workforce of Polymer has remained
at around thirty-five employees.
The ILGWU filed a charge with the NLRB, alleging
various unfair labor practices, including charges that the
layoffs were motivated by a desire to quash the unionization
campaign. The General Counsel of the NLRB issued a
complaint against Polymer on March 21, 1995. The complaint
was heard before an ALJ from June 5, 1995 through June 21,
1995, followed by a second two-day hearing in October. The
ALJ issued his decision on March 25, 1996, and found that
Polymer had committed numerous violations of the NRLA.
The ALJ recommended the imposition of a bargaining order
under NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct.
1918, 23 L. Ed. 2d 547 (1969). Polymer timely appealed the
ALJ's decision to the Board.
For some unexplained reason, the NLRB did not issue
its decision and order until August 24, 1999, more than three
years after the ALJ's decision. The Board affirmed the ALJ's
findings that, inter alia, [Polymer] unlawfully threatened
employees with more onerous working conditions, physical
harm, layoff, discharge and other unspecified reprisals for
Sa
Fifth Circuit Petition for Enforcement - 11/06/01
engaging in union and protected concerted activity." The
Board also affirmed the ALJ's findings that Polymer made
good on its threats by means of the January and July 1995
layoffs. Jd. The ALJ found, and the Board affirmed, that
Polymer had violated several sections of the National Labor
Relations Act (NLRA). See 29 U.S.C. §158(a)(1), (3), and
(4). The Board agreed with the ALJ that the severity of
Polymer's conduct required the imposition of a bargaining
order under Gissel. Under the bargaining order, Polymer was
directed to bargain with ILGWU's successor union, the
United Needle Trades, Industrial and Textile Employees
(UNITE).
When the Board's order issued, Polymer's original
counsel on this matter had retired, and Polymer was
apparently in the process of finding replacement counsel.
Polymer's new counsel filed a Motion for Reconsideration
and to Reopen the Record with the Board. The motion is
dated September 24, 1999, and was received by the Board on
September 29, 1999. In that motion, Polymer argued that
circumstances had changed since the ALJ's decision,
including the restructuring of its business, a high turnover rate
(only five employees who were working at the time of the
complaint still worked for Polymer), and the passage of four
and one half years. Polymer asked for reconsideration of the
bargaining order in light of these changed conditions. On
October 5, 1999, Polymer received a letter from the NLRB
informing Polymer that the motion for rehearing was
untimely. That same day, Polymer filed a motion contesting
the untimeliness of its original motion. On November 23,
1999, the Board ordered that Polymer's motion for
reconsideration would not be considered, and that the order
would stand. The Board filed its application for enforcement
eS ee ee ee ee
6a
——————c ttt
Fifth Circuit Petition for Enforcement - 11/06/01
of its August 24, 1999 order with this court in March 2000.
Polymer now contests the enforcement of the order.
Discussion
The Federal Circuit Courts are almost unanimous in
holding that the NLRB must take current conditions into
account when it determines whether to issue a bargaining
order under NLRB v. Gissel Packing Co., 395 U.S. 575, 89
S. Ct. 1918, 23 L. Ed. 2d 547 (1969).' See, e.g., Charlotte
Amphitheater Corp. v. NLRB, 317 U.S. App. D.C. 270, 82
F.3d 1074, 1078 (D.C. Cir. 1996) (noting that all Circuits
except the Ninth require the NLRB to consider changed
circumstances when issuing Gissel bargaining orders); NLRB
v. Cell Agriculture Manuf. Co., 41 F.3d 389, 398-99 (8th
Cir. 1994). Relevant changed circumstances include passage
' Of course, the order may still be appropriate despite the
changed conditions, as illustrated by Chromalloy v. NLRB, 620
F.2d 1120 (Sth Cir. 1980). See also Bandag, Inc. v. NLRB, 583
F.2d 765 (Sth Cir. 1978). The NLRB relies on Chromalloy for the
proposition that a Gissel case should never be remanded to the
Board for reconsideration in light of changed circumstances. This
is an incorrect oversimplification. We held in Chromalloy that while
the existence of subsequent events is relevant, the Board may still
decide that a bargaining order is required, and that the Board need
not determine that the actual sentiment of the majority of the work
force favors the union before issuing a bargaining order.
Chromalloy, 620 F.2d at 1131-32. In Chromalloy, we held that the
Board was not required in all cases to reopen the record for
consideration of events occurring between the ALJ's decision and
the Board's order. However, the Board's decision in Chromalloy
was issued five months after the ALJ's decision; there was no issue
of lengthy delay as in the instant case. /d. at 1123, 1132.
7a
Fifth Circuit Petition for Enforcement - 11/06/01
of time and turnover in the workforce. Charlotte, 82 F.3d at
1078. The Board should at least consider significant turnover
and passage of time when determining whether a bargaining
order was appropriate.’
2 Apparently this lesson has been a difficult one to learn
for the NLRB. The D.C. Circuit recently expressed some
frustration with the Board's repeated refusals to consider current
circumstances when issuing bargaining orders:
We have repeatedly called the Board to task for its
intransigent refusal to accept and act upon our
instructions that the appropriateness of a bargaining
order must be assessed as of the time it is issued.
Nor have we been alone.
Given the changes in its own membership, it may
well be that the Board is devoid of an institutional
mémory; but this court is not. Perhaps it believes
it can wear us down; after more than twenty years,
it should have learned that it cannot. As a
consequence of its stubborn refusal to accept the
holdings of virtually every circuit that has
considered the matter, it has squandered a vast
amount of our time as well as its own and has
caused delays in the ultimate resolution of cases
that cannot be laid at the feet of recalcitrant
employers. If the Board continues to disagree with
us, it is of course free to seek Supreme Court
review.
Charlotte, 82 F.3d at 1079 (citations omitted).
8a
Ea TT
Fifth Circuit Petition for Enforcement - 11/06/01
However, despite the weight of the law in other
Circuits, the law on this point in the Fifth Circuit is somewhat
confused. In NLRB v. American Cable, 427 F.2d 446 (5" Cir.
1970), this court held that the Board must consider the current
circumstances when determining whether to issue a bargaining
order. Jd. at 448-49. While American Cable was never
overruled, in a subsequent opinion we stated that "in a case
not involving a remand to the Board," the Court should
evaluate the appropriateness of the bargaining order "as of the
date of the unfair labor practice proceedings, not as of the
date when the matter comes before the court." See NLRB v.
Dadco Fashions, Inc. , 632 F.2d 493, 497 n.7 (Sth Cir. 1980).
This line of cases is based on J.P. Stevens & Co. v. NLRB,
441 F.2d 514, 525 n.16 (Sth Cir. 1971), which did not, in
fact, hold that the time for consideration of current conditions
was the time of the unfair labor practice proceedings. Instead,
in J.P. Stevens we held that the proper time for evaluation of
"current circumstances" was the time at which the Board
issued its bargaining order. /d. This holding was read in
NLRB vy. Gibson Prod. Co., 494 F.2d 762, 766 n.4 (Sth Cir.
1974) to mean that this Court should not remand to update the
record to take into account events subsequent to the Board's
(not the ALJ's) action. Jd. We went one step further in
Dadco, and held that in a case not involving a remand to the
Board, the Court should evaluate the appropriateness of the
bargaining order as of the date of the unfair labor practice
proceedings, not as of the date when the matter came before
the Court. Dadco, 632 F.2d at 497 n. 7. Despite our
admittedly confusing line of cases, American Cable has never
been overruled, and, in fact, now represents the
overwhelming majority position among the Circuits on this
issue.
9a
Fifth Circuit Petition for Enforcement - 11/06/01
Under American Cable the Board must consider
evidence of changed circumstances when it evaluates the
appropriateness of a Gissel bargaining order. If the Board had
before it evidence that circumstances at Polymer's plant were
in relevant respects significantly different from those at the
time of the ALJ's decision recommending a bargaining order
the Board erred when it refused to take the changes into
account in determining whether a bargaining order should
issue. We should not, however, take into account changes in
circumstance that have occurred since the time of the Board's
decision.
The Board's procedural rules permit an employer to
submit a motion to reopen the record after the ALJ's decision
but before the Board has ruled. After the filing of timely
exceptions and briefs, the Board “may decide the matter
forthwith upon the record, or after oral argument, or may
reopen the record and receive further evidence before a
member of the Board or other Board agent or agency, or may
make other disposition of the case." 29 C.F.R. §102.48(b).
Section 102.48(b) grants the NLRB wide discretion in the
manner in which it deals with appeals from decisions of the
ALJ and permits the Board to entertain motions to reopen the
record in order to receive evidence of changed circumstances.
At oral argument, both Polymer and the NLRB agreed that
the Board's procedural rules would have permitted Polymer
to file a motion to reopen or update the record prior to the
Board's decision.’ Although there is no clear procedural
> Employers in other cases have moved to reopen the
record in the time between the ALJ's order and the decision of the
Board. See, e.g., Texas Petrochemicals Corp. v. NLRB, 923 F.2d
10a
eC
Fifth Circuit Petition for Enforcement - 11/06/01
vehicle for such a motion, we agree with the parties’
interpretation of the Board's regulations. Polymer could have
submitted a motion to update the record at any time before the
Board's decision, but made no such motion until a month after
that decision.
The NLRB denied Polymer's motion for
reconsideration and reopening because, according to its order,
it had no discretion to allow filings after the twenty-eight day
time limit imposed by 29 C.F.R. §102.48. Polymer argues
that the NLRB had discretion under 29 C.F.R. §102.48(d)(2)
to consider the late motion.‘ The Board now takes the
398, 401 (Sth Cir. 1991).
* §102.48(d) reads in pertinent part:
(1) A party to a proceeding before the Board may,
because of extraordinary circumstances, move for
reconsideration, rehearing, or reopening of the
record after the Board decision or order. A motion
for reconsideration shall state with particularity the
material error claimed and with respect to any
finding of material fact shall specify the page of the
record relied on. A motion for rehearing shall
specify the error alleged to require a hearing de
novo and the prejudice to the movant alleged to
result from such error. A motion to reopen the
record shall state briefly the additional evidence
sought to be adduced, why it was not presented
previously, and that, if adduced and credited, it
would require a different result. Only newly
discovered evidence, evidence which has become
available only since the close of the hearing, or
evidence which the Board believes should have
lla
Fifth Circuit Petition for Enforcement - 11/06/01
position, as it stated in its order, that the provision allowing
late filings refers only to the Board's ability to allow for
extensions of time when requests for such extensions are
timely filed.
In Camvac v. NLRB, 877 F.2d 62 (6th Cir. 1989)
(unpublished), the Sixth Circuit faced a case with an almost
identical procedural history. As in the present case, in
Camvac there was a long delay between the ALJ's original
order and the Board's decision, and Camvac filed its motion
for reconsideration three weeks after the twenty-eight day
period allowed by section 102.48. The Sixth Circuit held that
section 102.48 specifically allowed the Board to accept
motions beyond the twenty-eight day period, and that the
Board's failure to accept the "untimely" motion was an abuse
of discretion.
been taken at the hearing will be taken at any
further hearing.
(2) Any motion pursuant to this section shall be
filed within 28 days, or such further period as the
Board may allow, after the service of the Board's
decision or order, except that a motion for leave to
adduce additional evidence shall be filed promptly
on discovery of such evidence. Copies of any
request for an extension of time shall be served
promptly on the other parties.
29 C.F.R. §102.48(d).
12a
Fifth Circuit Petition for Enforcement - 11/06/01
Although Camvac was an unpublished opinion, we
agree with the Sixth Circuit that section 102.48 grants the
NLRB discretion to entertain motions for rehearing after the
twenty-eight day period has expired. The NLRB argues that
section 102.48 simply allows the Board to extend the time for
filing motions upon receipt of a timely motion for an
extension. However, this argument is undercut by the fact that
section 102.48 it hes provides that evidence that has
become available "since the close of the hearing" can be
accepted if it is filed promptly upon discovery. 29 C.F.R.
§102.48(d)(1). Still, section 102.48 certainly does not
command the Board to accept late filings-the treatment of
those filings is within the discretion of the Board.
Polymer also argues that the Board had discretion to
accept its filing under 29 C.F.R. §102.111(c). After initially
stating that it had no discretion, the Board (in its order
denying the motions for reconsideration) thereafter goes on to
hold that section 102.111(c) governs acceptance of late
filings, and that section 102.111(c) allows the Board to
consider late filings "upon good cause shown based on
excusable neglect and when no undue prejudice would result"
and makes specific provision for acceptance of late filings.
29 C.F.R. §102.111(c). The Board found that Polymer's
having to hire a new lawyer in the time between the order and
the due date did not constitute excusable neglect and that
therefore the requests for rehearing and reopening were
denied. Although the amount of discretion that the Board has
to accept late filings is somewhat unclear, it is clear that the
Board does possess at least some discretion under both section
13a
Fifth Circuit Petition for Enforcement - 11/06/01
102.48(d)° and section 102.111(c). The Board's action in
finding lack of good cause based on excusable neglect is
reviewed for abuse of discretion. See, e.g., Hospital Del
Maestro v. N.L.R.B., 263 F.3d 173, 175 (1st Cir. 2001).
Under either provision we cannot say that the Board's
decision to deny Polymer's untimely motion for
reconsideration was an abuse of discretion, even thought the
Board had taken an extraordinary amount of time to issue its
merits decision in this case. It is not the Board's responsibility
to continually update the factual picture that the parties have
provided. While the Board must consider properly presented
or tendered evidence of materially changed relevant
circumstances in bargaining order cases, we can see no reason
why the Board itself should be required to gather evidence.
The party that seeks to benefit from. demonstrating a change
of circumstances bears the burden of timely providing the
Board with evidence of those changes. The Board is entitled
to assume, in the face of the parties’ silence, that the facts as
initially presented continue to adequately describe the
employer's workforce.
The Board's delay does not excuse Polymer's failure
to timely provide the evidence it seeks to introduce. Even
though Polymer was in the process of hiring a new lawyer at
the time of the Board's decision, this does not require the
Board to excuse Polymer's failure to file even a request for an
extension of time within the twenty-eight day period. And,
> We see no reason that a party that files an untimely
motion under §102.48(d) would not also have to demonstrate
excusable neglect.
14a
Fifth Circuit Petition for Enforcement - 11/06/01
Polymer's acquisition of an attorney after the decision does
not require the Board to excuse its failure to move to reopen
the record prior to the Board's decision. There is no
indication that any of the changes in circumstance that
Polymer claims invalidate the bargaining order occurred
immediately prior to the Board's decision. Instead, those
changes are alleged to have occurred gradually, over a period
of years. A party must be given a reasonable amount of time
to file a motion to reopen the record after the events that
change the party's circumstances. Had a sudden change in
Polymer's business or workforce occurred only a few months
before the Board's decision, perhaps their failure to update
the Board before the decision would be excusable. However,
there is no indication that this is the case. Polymer appears to
have made a conscious decision to wait until after the Board's
decision to inform the Board of the significant changes that
had taken place in its workforce. The Board's refusal to
accept Polymer's untimely motion was not an abuse of
discretion.
Polymer also challenges the substance of the Board's
decision approving the Gissel bargaining order. Polymer
claims that the Board's decision is unsupported by the record.
The Board should have evaluated the propriety of the Gissel
order using the most current set of facts properly before it.
Since Polymer's evidence of changed circumstances was not
properly before the Board, the most current set of facts was
the evidence presented to the ALJ. The NLRB's findings of
fact, if not influenced by an erroneous view of the law, are
conclusive if supported by substantial evidence on the record
considered in its entirety. Texas Petrochemicals v. NLRB,
923 F.2d 398 (Sth Cir. 1991). A reviewing court should not
re-evaluate the credibility of witnesses, re-weigh the evidence,
: 15a
Fifth Circuit Petition for Enforcement - 11/06/01
or reject reasonable Board inferences simply because other
inferences might also have reasonably been drawn. NLRB v.
Adco Electric, Inc., 6 F.3d 1110, 1115 (Sth Cir. 1993).
The imposition of a bargaining order is an
extraordinary remedy, which should be issued upon a
determination "that the possibility of erasing the effects of
past practices and of ensuring a fair election ... by the use of
traditional remedies, though present, is slight and that
employee sentiment ... would, on balance, be better protected
by a bargaining order ...." Gissel, 89 S. Ct..at 1940. Upon
review of the record in this case, we find that substantial
evidence on the record as a whole supports the Board's
conclusion that Polymer threatened and laid off a sizeable
number of its workers due to union activity at its Houston
plant. On the basis of the record properly before it, the Board
did not abuse its discretion when it issued the bargaining
order proposed by the ALJ.
Conclusion
The NLRB must consider current circumstances when
issuing a Gissel bargaining order. But, the NLRB is entitled
to treat the facts as of the ALJ's decision as static until the
parties provide the NLRB with evidence that the relevant
circumstances have materially changed, and Polymer has not
timely presented or sought to present any such evidence.
Because the NLRB did not abuse its discretion in refusing to
accept Polymer's untimely motion, the NLRB's bargaining
order should be evaluated on the basis of the facts in evidence
before the ALJ. Since under those -facts the Board did not
abuse its discretion when it imposed the bargaining order, the
order must be enforced.
l6a
ee
~- Fifth Circuit Petition for Enforcement - 11/06/01
The Board's application for enforcement is
GRANTED. “3
17a
el
APPENDIX C
NATIONAL LABOR RELATIONS BOARD
Cases 16-CA-17189 and 16-CA-17455
[Filed August 24, 1999]
U.S.A. Polymer Corp. and Texas-Oklahoma-Arkansas
District Council--UNITE
DECISION AND ORDER
By John C. Truesdale, Chairman; Sarah M. Fox, Member;
Peter J. Hurtgen, Member.
On March 25, 1996, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
Respondent and the General Counsel filed exceptions and
supporting briefs, and the Charging Party filed a brief in
support of the General Counsel's exceptions and a response
in Opposition to the Respondent's exceptions.
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
_
18a
;
NLRB Decision and Order - 8/24/99
the judge's rulings, findings,’ and conclusions to the extent
discussed below, and to adopt the recommended Order, as
modified and set forth in full below.’
We agree with the judge's findings that the
Respondent committed numerous, egregious Violations of
Section 8(a)(1), (3), and (4) of the Act and that a bargaining
order should issue under the principles enunciated in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969).
' The Respondent has excepted to some of the judge's
credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
2 We shall modify the judge's recommended Order in
accordance with our decisions in /ndian Hills Care Center, 321
NLRB 144 (1996), and Excel Container, Inc., 325 NLRB No. 14
(1997).
> In its brief in support of exceptions, the Respondent
contends that there has been no determination of the appropriate
bargaining unit. The judge did, in fact, make such findings in his
decision at fn. 59, and in his conclusions of law, Item 3. The
Respondent has neither filed exceptions to these findings nor
disputed the judge's description of positions within the production
and maintenance unit. Accordingly, we adopt the judge's finding
concerning the unit appropriate for collective-bargaining within the
meaning of Sec. 9(b) of the Act as set forth in item 3 of his
conclusions of law.
19a
|
NLRB Decision and Order - 8/24/99
The Board will issue a bargaining order, absent an
election, in two categories of cases. NLRB v. Gissel Packing
Co., supra. The first category is "exceptional" cases, those
marked by unfair labor practices so "outrageous" and
"pervasive" that traditional remedies cannot erase their
coercive effects, thus rendering a fair election impossible.
The second category involves "less extraordinary cases
marked by less pervasive unfair labor practices which
nonetheless have a tendency to undermine majority strength
and impede election processes." In the latter category of
cases, the "possibility of erasing the effects of past practices
and of ensuring a fair election . . . by the use of traditional
remedies, though present, is slight and employee sentiments
once expressed by authorization cards would, on balance, be
better protected by a bargaining order." NLRB Vv. Gissel
Packing Co., supra at 613, 614-615; and Cassis Management
- Corp., 323 NLRB 456, 459 (1997).
We find that the violations at issue in the instant case
constitute category I conduct within the meaning of Gissel.
The Respondent embarked on a series of pervasive and
increasingly coercive unfair labor practices within weeks of
Similarly, the Respondent has not filed exceptions to the
judge's findings that the Union attained majority status in January
1995 or to his findings concerning the authentication of 47
authorization cards in the unit of 64 employees. The record shows
that 41 cards were signed on or before January 21, 1995, and that
the remaining 6 cards were signed on or before January 27, 1995.
Accordingly, we adopt the judge's findings concerning majority
Status.
20a
NLRB Decision and Order - 8/24/99
the advent of the employees’ union activity. The first union
contact with employees occurred in the latter part of
September 1994, and the Union began its formal organizing
campaign in the early part of October 1994. By January 27,
1995, the Union had attained majority status in the bargaining
unit.
As more fully described in the judge's decision, the
Respondent unlawfully interrogated employees about their
union activity and the union activity of their fellow
employees. The Respondent also unlawfully threatened
employees with more onerous working conditions, physical
harm, layoff, discharge and other unspecified reprisals for
engaging in union and protected concerted activity.
Employees were unlawfully subjected to surveillance and
unlawfully promised a bonus or other rewards for not
supporting the Union. The interrogations and threats were
widespread, involving 7 different supervisors and at least 20
different employees.‘
* The Respondent's defense to these allegations rested
primarily on its contention that it had no knowledge of the union
activity. Although the Respondent filed exceptions to these
violations of Sec. 8(a)(1) found by the judge, it did not address the
individual incidents in its supporting brief. We adopt the judge's
findings.
The Respondent also excepts to the finding that Carlos
Hallatt is an agent of the Respondent. We note that Hallatt's
conduct is at issue only in connection with his alleged interrogation
of Lucio Aviles in January 1995. In view of the numerous instances
of unlawful interrogations by other respondent officials, a finding
21a
NLRB Decision and Order - 8/24/99
Furthermore, the Respondent made good on its threat
of layoff or discharge by laying off 29 unit employees
between January 27 and 30, 1995. These 29 employees
represented 45 percent of the employees in the proposed
bargaining unit and included 9 of 10 members of the
employees’ organizing committee.° To compound the impact
of this unlawful conduct, the Respondent further violated the
Act by issuing employees being laid off in January 1995 a
letter requiring them to call on a daily basis, with failure to do
so on 2 consecutive days "(causing) us to consider you
unavailable for work or having resigned your position with
our company." In addition, the Respondent's supervisors told
remaining employees that those selected had been chosen
because of their support for the Union in accord with the
policy of John Bazbaz, the Respondent's president.
After the General Counsel issued a complaint
concerning the conduct summarized above, the Respondent
continued to violate the Act by penalizing employees who
testified as witnesses for the General Counsel at the ensuing
unfair labor practice hearing. Specifically, the judge found,
and we agree, that the Respondent violated Section 8(a)(4)
and (1) of the Act by interrogating witnesses for the General
on this allegation would be cumulative and would not affect the
remedy.
> In adopting the judge's finding that the layoff of these 29
employees violated Sec. 8(a)(3) and (1) of the Act, we find it
unnecessary to rely on the statistical analyses presented by the
Charging Party and apparently relied on by the judge.
22a
NLRB Decision and Order - 8/24/99
Counsel after they had testified, asking other employees if
they had received subpoenas to testify, and advising them that
they could ignore the subpoenas. In addition, the Respondent
suddenly disciplined employees who had been witnesses for
talking among themselves, although there was no rule
prohibiting that behavior. In-this regard, one employee
received an oral warning and two received written warnings.
When one of the latter refused to sign the written warning
because he believed he had done nothing wrong, Javier
Guerrero, assistant to Bazbaz, fired him.® The Respondent
also reduced employees’ regular working hours and overtime
after they had testified, while other employees who had not
testified were allowed to keep their normal hours and
overtime. Supervisor Israel Zepeda told another employee that
he had been instructed by Bazbaz and Guerrero to make
things hard on him for testifying against the Company.
In view of the foregoing, we find that the
Respondent's intimidating course of conduct places it among
those exceptional cases warranting a bargaining order under
category I of the Gissel standard, because traditional remedies
cannot erase the coercive effects of the conduct, making the
holding of a fair election impossible. See Cassis Management
Corp., supra at 459. It cannot be gainsaid that the
Respondent's discriminatory layoff of nearly one-half of the
bargaining unit, coupled with contemporaneous statements
that the reason for the layoffs was the employees’ support for
the Union and the extensive conduct violative of Section
8(a)(1) and (4) of the Act following the issuance of the first
° Bazbaz subsequently rescinded the dismissal.
23a
NLRB Decision and Order - 8/24/99
complaint, constitute unfair labor practices that are both
outrageous and pervasive. The restorative effect that Board-
ordered reinstatement may have on unit employees is severely
diminished by this pattern of conduct. Accordingly, we find
that a bargaining order is warranted under category I
standards.’
Even if we were to find, however, that the violations
were less than "outrageous." a bargaining order is warranted
under category II standards. The Board has long held that
threats of job loss are particularly coercive and likely to
undermine the possibility of holding a fair election for an
extended period. Garney Morris, Inc., 313 NLRB 101, 103
(1993), enfd. 47 F.3d 1141 (3d Cir. 1995). When such threats
are made, employees receive an unforgettable message that
any efforts they make to improve their working conditions
could instead result in the loss of their livelihood. Electro-
Voice, Inc., 320 NLRB 1094, 1095 (1996). Here, where the
employer proceeded to carry out its threats against so
substantial a number of bargaining unit members, the message
is not likely to be soon forgotten. As the Board commented in
7 Member Hurtgen finds it unnecessary to pass on whether
a bargaining order is warranted under category I standards. He
agrees with his colleagues that a bargaining order is warranted
under category II standards. Member Hurtgen finds it unnecessary
to pass on the impled (a)(1) violations found by the judge. In his
view, these alleged violations are cumulative. Member Hurtgen
finds it unnecessary to pass on the question whether employee
Montes de Oca was a guard.
24a
|
a
NLRB Decision and Order - 8/24/99
America's Best Quality Coatings Corp.,* discharge of
employees because of union activity "goes to the very heart
of the Act." The Respondent's outrageous conduct did not end
with its massive unlawful layoff of union supporters, "the
ultimate retaliation" for supporting a union.’ Those employees
who remained received a continuing message that those who
were laid off had been "rewarded" for their union support.
They also received the message that retribution for supporting
the Union or testifying as witnesses for the General Counsel
was the policy of the Respondent's highest official, John
Bazbaz. In these circumstances, the possibility that employees
would thereafter express their uncoerced desires through the
mechanism of an election is slight, if it exists at all.
Accordingly, under the circumstances here, it is clear that a
bargaining order is not merely appropriate, but necessary .'°
® 313 NLRB 470, 472 (1993), enfd. 44 F.3d 516 (7th Cir.
1995), cert. denied 515 U.S. 1158 (1995).
* Cassis Management Corp., 323 NLRB 456, 457 (1997).
10 Chairman Truesdale and Member Fox reach this
conclusion despite the passage of time of 4 years since the unfair
labor practices occurred and 3 years since the judge's decision
issued. As in Garvey Marine, Inc., 328 NLRB No. 147, slip. op.
pp. 6-7 (1999), they conclude that the passage of time does not
diminish the need for and appropriateness of a bargaining order in
this case.
Member Hurtgen does not agree with the Board's decision
in Garvey Marine, Inc., supra, slip op. at p. 9. However he notes
that, in the instant case, the Respondent does not contend that the
passage of time militates against the appropriateness of a bargaining
order.
25a
NLRB Decision and Order - 8/24/99
The Respondent has excepted to the judge's finding that it
violated Sec. 8(a)(5) by refusing to recognize and bargain with the
Union on the ground that there is no such allegation in the
complaint as amended. In the particular circumstances of this case,
we will delete the judge's finding since the General Counsel did not
request this finding, and finding this violation will not affect the
remedy here. As the Board explained in Peaker Run Coal Co. , 228
NLRB 93, 93-94 (1977), nothing in the Supreme Court's Gissel
opinion makes a finding of Sec. 8(a)(5) a prerequisite for issuing a
bargaining order if the Board has found that a union has attained
majority status and that the respondent employer has committed
violations of the Act, failing within either category I or category II
as described in Gissel, which have undermined the union's majority
status and "fatally impeded the holding of a fair election." As
further explained in Peaker Run, in the absence of an 8(a)(5)
allegation, the employer's obligation to recognize and bargain with
the union commences on "the date on which the employer embarked
on its unlawful antiunion campaign.” Id. at 93. Accord: Ellis
Electric, 315 NLRB 1187, 1188 (1994). In this case, the
Respondent's obligation commenced on January 27, 1995, when the
Union had attained majority status and the Respondent began its
unlawful antiunion campaign with the discriminatory layoffs of unit
employees.
In its exceptions, the Respondent contends that the merger
of the Charging Party in Case 16-CA-17189, Texas-Oklahoma-
Arkansas District Council. ILGWU, a/w International Ladies
Garment Workers' Union, with the Amalgamated Clothing and
Textile Workers to form the Union of Needle Trades, Industrial and
Textile Employees (UNITE) precludes the issuance of a bargaining
order because it raises a question of continuity of representation. As
described more fully in the judge's decision, there was considerable
26a
NLRB Decision and Order - 8/24/99
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 9 and renumber the
following conciusion of law accordingly.
AMENDED REMEDY
Because of the serious nature of the Respondent's
numerous violations of the Act and their impact on the entire
unit, we require the Respondent to bargain with the Charging
Party as the duly designated representative of the employees
in the appropriate unit.
testimony and documentation by the Charging Party to support its
position that the post-merger entity, UNITE, provides for
substantial continuity of representation under the four-part test set
forth in Western Commercial Transport, 288 NLRB 214 (1988).
The burden of proof is on the party seeking to prove discontinuity.
Insulfab Plastics, 274 NLRB 817, 821 (1985), enf. 739 F.2d 961
(1st Cir. 1986). Here, the Respondent has not met that burden. Its
reliance on Pye v. Sullivan Brothers Printers, Inc., 38 F.3d 58 (Ast
Cir. 1994), is misplaced, because here, unlike there, the new entity
will utilize the same leaders for contract administration and
negotiation. Moreover, the same rules, dues and infrastructure are
in place under UNITE as were present under the ILGWU. The
Respondent relies primarily on the fact that the merger will result
in an entity with a membership that is more than double the size of
the ILGWU. That, however, is a natural result of a merger that
may result in increased clout, but does not diminish the identity of
the organization. /nsulfab, supra at 823.
27a
SERS conte Pena a Oe Re
NLRB Decision and Order - 8/24/99
Because of its discriminatory discharge of the
employees named in paragraph 5(a) of the judge's conclusions
of law, the Respondent must offer those employees
reinstatement to the bargaining unit positions they held and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net interim earnings, :
as prescribed in F. W. Woolworth Co. , 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987)."
'! As noted by the judge, the Respondent discriminatorily
discharged Marco Posadas, but avoided any backpay liability by
reinstating him before he suffered any backpay liability.
With regard to the alleged discriminatory layoff of 29
employees on January 27, the judge found that the layoffs of all
those employees violated Sec. 8(a)(3) and (1). He also found,
however, that "a layoff of some level would have occurred at some
point well after January 1995 but before June 1995" (emphasis
added). He recommended leaving to compliance the question of
which employees would have been affected by such a subsequent
layoff or layoffs. We agree and note that precedent dictates that in
order to cut off the backpay of any given discriminatee or
discriminatees, the Respondent must show that he or she would
have been laid off in any event-for a nondiscriminatory reason on
the date for which a backpay cutoff is urged. See, e.g., EDP
Medical Computer Systems, 302 NLRB 54, 55 (1991), enfd. mem.
959 F.2d 1101 (D.C. Cir. 1992) (respondent must show, as an
affirmative defense, that discriminatee's job was eliminated for
nondiscriminatory reasons after his unlawful discharge, in order to
cut off backpay liability); Pacemaker Driver Service, 290 NLRB
405 (1988), affd. sub nom. Bales v. NLRB, 914 F.2d 92 (6th Cir.
1990) (employer which caused employee terminations when it
closed a terminal in violation of Sec. 8(a)(3) carried its burden of
showing that it would have closed the terminal for
nondiscriminatory reasons on a particular date nearly 3 years later
and that it would not have relocated the employees elsewhere;
28a
NLRB Decision and Order - 8/24/99
The Respondent unlawfully retaliated against
employees William Rosales, Camillo Ramirez, Jose
Melendez, and Jesus Martines by denying them scheduled
working and overtime hours. It must make them whole for
their lost earnings in the manner set out above.
The Respondent must reinstate the position of
electrician at its facility and offer Luis Aviles reinstatement to
this position in addition to the backpay set forth above.
The Respondent must rescind the written warnings it
gave William Rosales and Marco Posadas, remove any record
of those warning from their personnel files, and inform them
in writing that this has been done and that those warnings will
not be used against them in any way.
Because of the serious nature of the Respondent's
violations and because of the Respondent's egregious,
widespread misconduct that demonstrates a general disregard
for its employees' fundamental rights, we shall issue a broad
order that requires the Respondent to cease and desist from
infringing in any other manner on rights guaranteed
employees by Section 7 of the Act. Hickmott Foods, 242
NLRB 1357 (1979).
backpay ends at that point).
29a
ee
NLRB Decision and Order - 8/24/99 _
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, U.S.A. Polymer Corp., Houston, Texas, its
officers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Cease and desist from
(a) Coercively interrogating employees about their
union sympathies and activities and the sympathies and
activities of fellow employees, and demeaning the Union in
cuvercive conversation with employees.
(b) Threatening employees with more onerous working
conditions, physical harm, layoff, discharge, and other
unspecified reprisals for engaging in union or other protected
concerted activities.
(c) Creating the impression of surveillance or
subjecting employees to surveillance because of their union or
other protected concerted activities.
(d) Promising employees a bonus or other reward for
not supporting the Union or engaging in other union or
protected concerted activities.
(e) Permanently laying off employees because they
engaged in union or other protected concerted activities and
to discourage them and other employees from supporting the
Union or engaging in other protected concerted activity.
30a
NLRB Decision and Order - 8/24/99
(f) Selecting employees for permanent layoff because
they supported the Union or engaged in other protected
concerted activity.
(g) Eliminating the job classification of electrician to
avoid rehiring its discharged electrician because he supported
the Union and engaged in union or other protected concerted
activity.
(h) Verbally warning employees not to talk with other
employees or threatening employees with unspecified reprisals
because they gave testimony contrary to the interests of the
Respondent in a Board hearing.
(i) Interrogating employees about their testimony given
in a Board proceeding and advising employees to ignore
Board issued subpoenas.
(j) Reducing the working hours of employees and
withholding overtime work to employees because they gave
testimony in a Board hearing and because they supported the
Union or otherwise engaged in protected conceried activity.
(k) Imposing more onerous working conditions on
employees in order to induce them to quit their employment
because they gave testimony in a Board proceeding, supported
the Union, and engaged in other protected concerted activity.
(1) Issuing written warnings to employees and
discharging employees because they gave testimony in a
Board proceeding and supported the Union or engaged in
other protected concerted activity.
3la
NLRB Decision and Order - 8/24/99
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the
exclusive representative of the employees in the following
appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All production and maintenance employees,
including operators, helpers, forklift operators,
packers, mechanics and electricians, and
excluding all other employees, supervisors,
and guards as defined in the Act.
(b) Within 14 days, offer the employees named below
immediate and full reinstatement to their former bargaining
unit 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, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the amended remedy section of this
decision.
Miguel Alanis Mario Aparicio
Lucio Aviles Julio Hector Garcia
Hugo Benavides Jose Giron
Alejandro Blasic Oscar Godines
32a
ee ee en
NLRB Decision and Order - 8/24/99
Rudolfo Bocanegro German Joya
Edgar Gerardo Carrera Luis Martines
Luis Castro Nery Mendoza
Nicholas Chajon Pedro Molgar
Elias Escobar Miguel Molina
Miguel Angel Molina Mauro Moran
Bethuel Montes De Oca Walter Jose Orellana
Felix Jovel Palacios Noe Ramirez
Manuel Perez Nelson Rodriguez
Mario Perez Jose Rosales
Lionel Campoverde Verde
(c) Make whole William Rosales, Camillo Ramirez,
Jose Melendez, and Jesus Martines for the unlawful denial of
their scheduled working hours and overtime hours in the
manner specified in the amended remedy section of this
decision.
(d) Within 14 days rescind the written warnings given
to William Rosales and Marco Posadas and remove any
record of such warnings from their personnel files. Within 3
days thereafter inform them in writing that this has been done
and that such warnings will not be used against them in any
way.
(e) Preserve and, within 14 days of request, make
available to the Board or its agents for examination and
copying, all payroll records, timecards, personnel records and
reports, and all other records necessary to analyze the amount
of backpay under the terms of the Order.
(f) Within 14 days after service by the Region, post at
its facility in Houston, Texas copies of the attached notice in
33a
NLRB Decision and Order - 8/24/99
both English and Spanish, marked "Appendix."'* Copies of
the notice, on forms provided by the Regional Director for
Region 16, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current and former
employees employed by the Respondent at any time since
November 1, 1994. -
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated Washington, D.C. August 24, 1999
John C. Truesdale, Chairman
Sarah M. Fox, Member
Peter J. Hurtgen, Member
'2 If 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."
34a
a aaa
NLRB Decision and Order - 8/24/99
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these mghts.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively interrogate employees
about their union sympathies and activities and the union
sympathies and activities of fellow employees, and demean
the Union in coercive conversations with employees.
WE WILL NOT threaten employees with more
onerous working conditions, physical harm, layoff, discharge,
and other unspecified reprisals for engaging in union or other
protected concerted activities.
WE WILL NOT create the impression of surveillance
or subject employees to surveillance because of their union or
other protected concerted activities.
35a
SS
NLRB Decision and Order - 8/24/99
WE WILL NOT promise employees a bonus or other
reward for not supporting the Union or engaging in other
union or protected concerted activities.
WE WILL NOT permanently lay off employees
because they engaged in union or other protected concerted
activities and to discourage them and other employees from
supporting the Union or engaging in other concerted protected
activity.
WE WILL NOT select employees for permanent
layoff because they supported the Union or engaged in other
protected concerted activity.
WE WILL NOT eliminate the job classification of
electrician to avoid rehiring our discharged electrician
because he supported the Union and engaged in union or other
protected concerted activities.
WE WILL NOT verbally warn employees not to talk
with other empioyees or threaten employees with unspecified
reprisals because they gave testimony in a National Labor
Relations Board hearing.
WE WILL NOT interrogate employees about their
testimony given in a National Labor Relations Board
proceeding and advise employees to ignore Board issued
subpoenas.
WE WILL NOT reduce the working hours of
employees and withhold overtime work to employees because
they gave testimony in a National Labor Relations Board
36a
jimmtatmimmmaadatiammaiaaaaiaacsamaasa aaa ae
NLRB Decision and Order - 8/24/99
hearing and because they supported the Union or otherwise
engaged in protected concerted activity.
WE WILL NOT impose more onerous working
conditions on employees in an attempt to induce them to quit
their employment because they gave testimony in a National
Labor Relations Board proceeding, supported the Union, and
engaged in other protected concerted activity.
WE WILL NOT issue written warnings to employees
and discharge employees because they gave testimony in a
National Labor Relations Board proceeding and supported the
Union or engaged in other protected concerted activity.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the following
appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All production and maintenance employees,
including operators, helpers, forklift operators,
packers, mechanics and electricians, and
excluding all other employees, supervisors,
and guards as defined in the Act.
WE WILL, within 14 days of the date of the Board's
Order, offer the employees named below immediate and full
reinstatement to their former bargaining unit jobs or, if those
37a
NLRB Decision and Order - 8/24/99
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, plus interest.
Miguel Alanis
Lucio Aviles
Hugo Benavides
Alejandro Blasic
Rudolfo Bocanegro
Edgar Gerardo Carrera
Luis Castro
Nicholas Chajon
Elias Escobar
Miguel Angel Molina
Bethuel Montes De Oca
Felix Jovel Palacios
Manuel Perez
Mario Perez
Lionel Campoverde Verde
Mario Aparicio
Julio Hector Garcia
Jose Giron
Oscar Godines
German Joya
Luis Martines
Nery Mendoza
Pedro Molgar
Miguel Molina
Mauro Moran
Walter Jose Orellana
Noe Ramirez
Nelson Rodrequez
Jose Rosales
WE WILL make whole William Rosales, Camilio
Ramirez, Jose Melendez, and Jesus Martines for the unlawful
denial of their scheduled working hours and/or overtime
hours, with interest.
WE WILL, within 14 days from the date of the
Board's Order, rescind the written warnings given to William
Rosales and Marco Posadas, remove such warnings from their
personnel files and WE WILL, within 3 days thereafter,
inform them in writing that this has been done and that such
warnings will not be used against them in any way.
38a
ee
NLRB Decision and Order - 8/24/99
U.S.A. POLYMER CORP.
ALJ: WALLACE H. NATIONS
ALJ-DECISION
Statement of the Case
WALLACE H. NATIONS, Administrative Law Judge.
This case’ was tried in Houston Texas on June 5 - 21,
1995 and October 17 and 18, 1995.7 Based upon charges
filed by the predecessor of Texas-Oklahoma-Arkansas District
Council - UNITE (hereinafter Union), Complaint and Notice
of Hearing issued on March 21, 1995 and an Amended
Complaint issued on May 5, 1995. The Complaints allege that
USA Polymer Corp. (hereinafter Respondent or Company)
engaged in conduct in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act (hereinafter Act).
Subsequent to the closing of the record in Case 16-CA-17189
on June 21, 1995, additional charges were filed by the Union
' The Charging Party in Case 16-CA-17189 was Texas-
Oklahoma-Arkansas District Council, ILGWU, a/w International
Ladies’ Garment Workers’ Union. On July 1, 1995, this Union
merged with the Amalgamated Clothing and Textile Workers Union
to form a new union known an Union of Needle Trades, Industrial
and Textile Employees (UNITE).
2 All dates in the months of September,—October,
November and December are in 1994 unless otherwise noted. All
dates in the months of January, February, March, April, May,
June, July, and August are in 1995 unless otherwise noted.
39a
NLRB Decision and Order - 8/24/99
against Respondent and a Complaint issued in Case 16-CA-
17455 alleging that Respondent has engaged in further
conduct in violation of Section 8(a)(1) and (3) of the Act and
additionally, has violated Section 8(a)(4) of the Act. General
Counsel in these proceedings filed a Motion to Reopen the
Record in Case 16-CA-17189 and Consolidate it with Case
16-CA-17455, alleging that the matters involved in the new
case are intimately related to matters already litigated. There
was no Opposition to this Motion and it was granted. Hearing »
on the Consolidated Complaint was held October 17 and 18,
1995.
Based upon the entire record, including my
observation of the demeanor of the witnesses, and after
consideration of the briefs filed by the parties, I make the
following
Findings of Fact
I. Jurisdiction
Respondent, a corporation, engages in the recycling of
plastic material for commercial sale at its office and place of
business in Houston, Texas. It admits in its Answer to the
Complaints and I find, that at all material times it has been an
employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
II. The Involved Labor Organization
It is admitted and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
40a
NLRB Decision and Order - 8/24/99
III. The Alleged Unfair Labor Practices
A. Background and Issues for Determination
Respondent is a wholly owned subsidiary of Z. L.
Star, a holding company which owns a number of other
enterprises including a company called Polytex Fibers. In
1992, Respondent was created from a division of Polytex
Fibers and became an independent company. The officers and
supervisors of Respondent are: Isaac Bazbaz, President of Z.
L. Star, John Bazbaz, President of Respondent, Javier
Guerrero, Assistant to John Bazbaz, Luis Mendoza, Plant
Manager, and Fernando Molina, Sergio Palacios, German
Robles, Cesar Portillo, Israel Zepeda and Augustine Garcia,
plant supervisors.’ During most of the time frame, January
1994 through January 1995, it employed about 60-65 non-
supervisory employees engaged in various aspects of
recycling plastic materials. The Company recycles high-
density polyethylene and polypropylene. In its polyethylene
production, it recycles post-consumer polyethylene resin,
which is derived from, inter alia, milk jugs and detergent
bottles. The raw material for recycling is purchased in bales
then washed, blended, ground and extruded or pelletized to
make a finished product. The pelletized recycled plastic is
then sold to other companies which use the product in the
> The names of various persons involved in this proceeding
are spelled differently in various parts of the transcript and in the
pleadings and briefs. I have adopted one spelling for each person
and have stuck with the spelling throughout this decision. If the
spelling I have adopted is not the correct one, I apologize the
person whose name is misspelled.
4la
NLRB Decision and Order - 8/24/99
manufacture of new containers and other products. In its
process the Respondent uses a number of machines, including
washers, grinders and extruder/pelletizers. Its polypropylene
process utilizes raw materials obtained from commercial
sources and is not dependent upon consumer recycling.
Employees who work on the washers, blenders, grinders and
the extruder are called operators and helpers. The Company
also employs forklift operators, and a lab technician. Prior to
a layoff which occurred in late January it employed
electricians and mechanics who performed most electrical and
mechanical maintenance duties at the plant. Subsequent to the
layoff these duties have been subcontracted. In the event a
representation election were to be held, the unit would likely
include the operators, helpers, forklift drivers electricians,
and mechanics.
The Union's involvement with Respondent began in
the last part of September, when a Houston man with
connections with a number of unions, Andres Reyes Garza,
received a call from an employee of Respondent, Luis Castro,
who expressed interest among the employees of Respondent
in having union representation. Garza passed the message on
to the Union and was employed as an assistant organizer and
was given clearance to continue talking to the employees. The
Union embarked on a formal organizing campaign in the early
part of October. The Union also assigned one of its full-time
organizers, Ricardo Medrano, to work on organizing
Respondent's employees. With the help of some interested
employees, the organizers secured the names, addresses and
phone numbers of the other employees. They began a study
of Respondent's business, looking at its ownership,
management, competition and customers. They also looked
into the wage and benefit structure and at plant working
42a
NLRB Decision and Order - 8/24/99
conditions. House calls on employees were conducted and
meetings with employees held in October, November and
December. Interest in representation was high and in January
the Union established an employee organizing committee The
ten members of this committee were Lucio Aviles, Alejandro
Blasio, Rodolfo Bocanegra, Edgar Carrera, Luis Castro,
Javier Garcia, Jose Giron, Guadalupe Leal, Luis Martines,
Pedro Molgar, Nery Mendoza, Miguel Molina, Manuel
Perez, Felix Palacios, Mario Perez, Miguel Lancan Perez,
Marco Posadas, Jose A. Rosales and William Rosales.
On January 7, the Union sent to Respondent a letter by
certified mail in which it noted the names of employees on the
organizing committee. Copies of the letter were given to
everyone on the committee and perhaps other employees.
John Bazbaz testified that the Respondent did not receive this
letter, testifying that it did not get the signature card which
accompanies certified mail. I do not credit this testimony.
Instead I find that it refused to accept the letter. The envelope
in which the letter was sent shows that the Post Office made
at least two attempts to deliver it. Company mail is received
by Polytex Fibers, which sends it to USA Polymer. Bazbaz
testified that Respondent was advised by counsel on or about
February 3, 1995 not to accept certified mail from the Union
to avoid a recognition request based on a card majority. I
believe and find that assuming such counsel was given, it was
given at the time of the first certified letter from the Union,
whose name prominently is shown on the envelope. As will
be discussed in connection with various of the alleged
violations of the Act, Respondent had knowledge of the
organizing campaign prior to January.
43a 2
NLRB Decision and Order - 8/24/99
During the first three weeks of January, the Union
secured signed authorization cards from about 58 or 59 of the
64 employees of Respondent who would be in the bargaining
unit. Then, beginning January 27, the Respondent laid off
about 29 of its employees. The General Counsel contends that
the layoff was aimed at stifling the Union organizing effort
and was the culmination of a number of threats and
intimidating conversations the Respondent's supervisors had
directed at employees during the campaign. Accordingly
General Counsel argues alternatively that the layoff itself was
unlawful, or if economic justification existed for the layoff,
the selection of employees to be laid off was discriminatory
and unlawful.* Respondent contends otherwise. It asserts that
it had no knowledge of any organizing activity until after the
layoff. Several witnesses characterized the campaign as a
quiet one, but would not agree that it was a secret campaign.
The employees did not wear union buttons or other union
insignia during the campaign, having been told by organizer
Garza that they would be fired by the Employer if they wore
them. Respondent contends that the layoff was economically
motivated. John Bazbaz testified that with the exception of
two months in 1994, the Company has not been profitable
during its existence. According to Bazbaz, Respondent had to
undertake some action to cure the economic problem, and that
* All of the employees laid off were employees who had
signed Union authorization cards prior to the layoff. Only five non-
supervisory employees did not sign authorization cards. These
employees were Hugo Barrera, Manuel Medrano, Antonio Suarez,
Abraham Tobar and Jose El Cid. All of these employees with the
exception of El Cid are still employed by Respondent. These five
employees were also unaffected in the July, 1995, layoff.
44a
NLRB Decision and Order - 8/24/99
resulted in a layoff. According to the brothers Bazbaz, the
decision to make the layoff was made in the first couple of
weeks of January, 1995. Though the evidence regarding how
the number of employees to be laid off was derived is
somewhat conflicting, at least one formula suggested was that
they decided to reduce the Company's operating time by 30
percent. At the time of the layoff, the Company had about 64
non supervisory employees It laid off 29 or about 45 percent
of such employees.
After the layoff, some of the employees came to the
Union office and informed the Union that they had been laid
off. The Union then investigated to determine the reasons for
the layoff and found that the remaining employees were
fearful and would not talk to its representatives or return their
phone calls. At least three Union meetings were held after the
layoff and with the exception of a handful of current
employees of Respondent, were primarily attended by laid off
employees. The involved Union organizers were told by
present employees that the layoff had instilled fear in their
fellow workers. Since the layoff the Union has been unable to
get any additional employees to sign cards. The organizers
each testified that they had never before encountered a
campaign where almost half of the workforce was laid off
during an organizing campaign. Following the layoff, the
Union filed charges with the Board which resulted in the
issuance of the first Complaint.
The first Complaint alleges that at various times during
the campaign, certain of Respondent's supervisors committed
violations of Section 8(a)(1) and (3) of the Act, primarily in
conversations with employees. Additionally, it alleges that the
layoff of about half of the employees in January 1995 was
45a
NLRB Decision and Order - 8/24/99
discriminatorily motivated and violated Section 8(a)(3) of the
Act. Following the first hearing in this matter, held in June,
1995, a second Complaint was issued, the two Complaints
were consolidated and the new allegations were litigated at a
hearing held in October, 1995. The second Complaint alleges
that following the first hearing herein, the Respondent
committed certain Acts in violation of Section 8(a)(1), (3) and
(4) of the Act, including threatening employees, reducing
overtime to certain employees and laying off ten additional
employees in July, 1995. Respondent denies all allegations
that it committed the unfair labor practices alleged and asserts
that the second layoff was the result of a decision to cease its
polyethylene production for economic reasons. Respondent
admitted the supervisory status of Issac Bazbaz, President of
Z. L. Star, John Bazbaz, President of Respondent, Javier
Guerrero, Assistant to John Bazbaz, Luis Mendoza, Plant
Manager, and Fernando Molina, Sergio Palacios, German
Robles, Israel Zepeda, Cesar Portillo and Augustine Garcia,
plant supervisors. However it denies supervisory or agency
status of a consultant named Carlos Hallatt and asserts that
one of the alleged discriminatees, Lucio Aviles was a
supervisor and not a rank and file employee. Respondent
further contends that one employee, Montes De Oca, was a
guard and not a production employee. These issues with
respect to the status of Hallatt, Aviles and De Oca will be
resolved below before making- findings with respect to the
alleged unfair labor practices.
46a
NLRB Decision and Order - 8/24/99
B. The Supervisory Status of Lucio Aviles and Carlos
Hallatt and that of Montes De Oca as a Guard.
1. Was Lucio Aviles a Supervisor?
Lucio Aviles was one of the first employees of
Respondent, having been employed by it at its inception.
Aviles had previously been employed by Polytex Fibers and
transferred to Respondent when it was formed. He performed
electrical maintenance and electrical installation work for
Respondent and also performed similar work on occasion for
his previous employer Polytex Fibers and other of the Z.L.
Star companies. He was active in the campaign and was one
of the employee organizing committee members. He was one
of the employees laid off on January 27 and is alleged to be
a discriminatee. Respondent takes the position that he was a
supervisor with the Company because, according to John
Bazbaz, Aviles directed other electrical employees' activities.
Bazbaz also testified that Aviles also planned installations,
including deciding what materials were needed and then
having the people under him perform the work. Bazbaz was
able however to remember only one employee by name that
Aviles ever supervised, a Miguel Perez, and could remember
no specific jobs that Aviles had purportedly supervised.
Bazbaz also admitted that no one can order materials without
either his approval or that of his brother Isaac Bazbaz.
Aviles testified that he was an employee and was
supervised by Carlos Hallatt. Hallatt is employed, according
to Bazbaz, as an independent consultant to help solve critical
maintenance problems and also to build and modify
equipment. Bazbaz also admitted that Hallatt advised Aviles
on a daily basis about what needed to be done as it related to
47a
NLRB Decision and Order - 8/24/99
electrical matters. Bazbaz testified that he advised Aviles of
his supervisory status at the time he began working for
Respondent, adding that he told Aviles that he was to
supervise the people hired to work under him, to train these
workers and direct them. He contends he gave Aviles the
power to suggest that employees be fired and the authority to
request that employees be hired and approve the hiring
According to Bazbaz, Aviles could request of him that
overtime be approved and could recommend wage increases
for employees working under him. The record contains no
concrete examples of any exercise of any of these alleged
powers by Aviles.
Aviles considers Hallatt to be his supervisor because
he instructed him on a daily basis concerning what was to be
done that day. Additionally, John Bazbaz told him when
Hallatt was hired that he was his supervisor. Bazbaz did not
tell him that Hallatt was a consultant and not an employee of
Respondent. Aviles denied that any one ever told him he was
a supervisor. In this regard he related a conversation he had
with John Bazbaz and Hallatt in November. Aviles had a
meeting with the two and complained to them about a
deduction from his pay. Bazbaz told him it was a punishment
for failing to answer his beeper. Bazbaz agreed that the
deduction would cease after the pay period. Aviles salary had
been increased because he performed work for other Z. L.
Star companies. Super Bag and Polytex Fibers. Hallatt then
said that they wanted him to be a supervisor. Aviles said he
did not want that position and refused to accept it. Hallatt then
asked if he would be a lead man. Aviles said he did not want
that either, he just wanted to continue doing his job. Bazbaz
and Hallatt agreed to honor Aviles' wishes. Aviles denied he
48a
NLRB Decision and Order - 8/24/99
had any of the indicia of a statutory supervisor. Support for
this position can be found in the testimony of Luis Martines.
Luis Napoleon Martines was employed as an
electrician by Respondent in August 1994 and worked with
Aviles. He testified that his supervisor was Carlos Hailatt. He
was not told that Aviles was a supervisor. Hallatt told him
when he was hired that he would be an electrician and work
for him. Not only did Aviles not supervise his work, he
occasionally told Aviles how to perform some electrician's
duties, telling Aviles what to do and how to do it.
Further support for finding Aviles not to be a
supervisor can be found from two other sources. First,
Respondent uses accounting codes for its various departments,
assigning the 900 code series to supervisors Aviles was
assigned a 700 code, the one for the maintenance department.
Second, both Bazbaz and his assistant Javier Guerrero gave
some rather unbelievable testimony regarding Aviles.
Although Aviles was a long time employee and had been
given two raises in the Fall of 1994, both Bazbaz and
Guerrero called Aviles slow, undependable and incapable of
performing electrical tasks that needed doing. This testimony
came in defense of the decision to layoff Aviles and thereafter
permanently eliminate the position of electrician at the
Company. Respondent now contracts for electrical work that
Guerrero cannot perform himself. This wholly unnecessary
and unbelievable attack on Aviles competency belies much of
their testimony about him and his position with the Company.
Guerrero also testified in another context that no supervisor
was laid off in the January layoff. This testimony also belies
Respondent's position that Aviles was a supervisor.
49a
NLRB Decision and Order - 8/24/99
Based on the credible evidence adduced and
specifically crediting the testimony of Aviles over that of
Guerrero and Bazbaz, I find that Aviles was simply an
electrician and not a supervisor. As noted above, there is no
evidence to support supervisory status except for the
testimony of Bazbaz and Guerrero to the effect that Aviles
was a supervisor and there is clear evidence that he was not.
I do not credit the testimony that he possessed supervisory
powers as no example of the exercise of such power was
given and the evidence supplied by Luis Martines refutes such
a contention. I also credit Aviles testimony about his
conversation in November with Bazbaz and Hallatt that
clearly shows that he was not a supervisor.
2. Was Carlos Hallatt a Supervisor or Agent?
Carlos Hallatt has been employed for eightcen years
as a consultant by Instalaciones Anahuac, of Mexico City and
is assigned by that company to provide service to Respondent
pursuant to a consulting agreement. This assignment began
about January 1994 and continues to date. Respondent pays
$ 2000 per week, plus about $ 2000 a month in expenses for
Hallatt's services. Hallatt calls himself an industrial technician
and gives advice and direction for layouts and maintenance of
the entire recycling system operated by Respondent. He has
known the Bazbaz family for about 20 years and has
previously done consulting work for them at companies they
have owned in Mexico.
Hallatt did not deny the assertions made by Aviles and
Martines that they were told that he was their supervisor and
that he supervised their activity. Thus he does possess one of
the criteria for determining supervisory status, that of
50a
NLRB Decision and Order - 8/24/99
independently directing the work of other employees. The
only reason that this matter is an issue is whether a
conversation Hallatt had with Aviles on January 27 can be
attributed to the Respondent. Because Hallatt was introduced
to Aviles as his supervisor, I believe that Respondent cloaked
him with authority to speak on behalf of management and
thus, I find that Hallatt is at least an agent of Respondent
within the meaning of the Act.
3. Was Montes de Oca a Guard?
Bethuel Montes de Oca Mendoza worked for three
years for Respondent until he was laid off in January. He
testified that in the last part of 1994 and the first part of 1995,
he worked on conveyors, feeding raw material into the
grinders. An affidavit given to the Board by the witness
states: "I would say as of September 1994, I worked guarding
the door and checking on the parking lot and taking care of
the dogs only." When asked repeatedly what he did after
September 1994, Montes de Oca could not remember. He did
not carry the employee code carried by most of the other
employees who worked in the recycling process. The only
other employee I could find who had the same code as Montes
de Oca and who testified was a packer. In support of
Respondent's position on this matter is the fact that after
Montes de Oca was laid off, it employed a independent
security agency to provide a guard.
I find that the evidence adduced with respect to the
Status of Montes de Oca is inconclusive on the issue of
whether he is a guard. Clearly he was a production employee
for several years. Thus for the purposes of this decision, I
find that he was a production employee who apparently
Sla
NLRB Decision and Order - 8/24/99
performed some functions that might be classified as those of
a guard. I find that he should be treated the same as the other
production employees laid off by Respondent.
C. The Alleged Unfair Labor Practices Committed by
Supervisors Prior to the January 27 Layoff.
As noted earlier, the Complaint alleges that a number
of Respondent's admitted supervisors engaged in
conversations with employees prior to the January 27 layoff
in which the employees were interrogated about their union
activity, the union activity of fellow employees and were
threatened with a variety of reprisals for engaging in such
protected activity. The allegations, if established, also
demonstrate Respondent's knowledge of the organizing
campaign almost from its inception. Specifically the
Complaint alleges that Respondent violated the Act by:
7. Supervisor Augustine Garcia:°
(a) In mid-December, interrogating
employees concerning their union activities.
(b) About January 25, interrogating
employees concerning their union activities.
(c) About January 27, telling
employees that they had been laid off because
of their union activities.
> The paragraph numbers used in this section relate to the
paragraph numbers in the Complaint.
52a
NLRB Decision and Order - 8/24/99
(d) About January 27, telling
employees that fellow employees were laid off
because of their union activities.
(e) In early January: interrogating
employees concerning the union activities of
fellow employees
(f) In early December: interrogating
employees concerning the union activity of
fellow employees
(g) In early December, threatening
employees with discharge if they supported the
Union.
8. Supervisor Javier Guerrero.
(a) In late November, questioning
employees as to whether they were going to
continue to pass out union material.
(b) About January 27, told employees
that the time they were on layoff status would
give them the opportunity to consider their
involvement with the Union.
-_(c) About February 2, told employees
that their layoffs were because they were
involved with the Union
(d) Supervisor Javier Guerrero, about
July 7, telling employees that they had been
selected for layoff because of their — for
the Union.
53a
NLRB Decision and Order - 8/24/99
9. Supervisor Fernando Molina:
(a) About December 15, and at various —
times thereafter, interrogating employees
concerning their involvement with the Union.
(b) About December 15, threatening
employees with discharge for engaging in
activities on behalf of the Union.
10. Supervisor Sergio Palacios:
(a) About January 5, interrogated
employees concerning the involvement of
fellow employees in the Union.
(b) About January 27 advising
employees that had they identified the Union
supporters to him, they would not have been
laid off.
(c) About January 24, denying an
employee assistance because he was believed
to be a union supporter.
11. Supervisor Herman Robles:
(a) In November, interrogating
employees concerning their union activities.
(b) In November, _ threatening
employees by stating that if they were involved
with the Union, they would be fired.
54a
NLRB Decision and Order - 8/24/99
12. Supervisor Caesar Portillo:
(a) About mid-December, threatening
employees with more onerous working
conditions if they would not tell Respondent
who was active on behalf of the Union.
(b) In mid December, threatening
employees with discharge if Respondent
discovered who was supporting the Union.
(c) In mid-December; threatening
employees with physical harm if Respondent
discovered that they were distributing Union
literature.
(d) About January 7, threatening
“employees with discharge if Respondent
discovered that they were involved with the
Union.
(e) About January 7, telling employees
that if they did not like the way things were at
Respondent they should look for another job.
(f) About January 7, interrogating
employees as to their union activities.
(g) About January 13, interrogating
employees concerning their union activities.
(h) About January 13, threatening
employees that if they did not like how things
were going at Respondent, they should quit.
(i) About January 20, threatening
employees with discharge because their names
had been sent in a Union letter to the
Company.
Gj) About January 20, threatening
employees that if Respondent discovered that
55a
aeeiiiiniiaaieimes =
NLRB Decision and Order - 8/24/99
they were active on behalf of the Union, they
would be fired.
(k) About January 20 offering
employees a bonus if they would disclose the
identity of union adherents.
(1) About January 24, threatening
employees with discharge if they continued
their involvement with the Union.
(m) About January 24, creating the
impression of surveillance by _ telling
employees that Respondent knew that they had
attended Union meetings. .
(n) About January 23, interrogating
employees concerning the union activity of
fellow employees.
(o) About January 25, threatening
employees with discharge if they supported the
Union.
Hereinafter, the evidence adduced with respect to the
alleged pre-layoff violations by supervisors will be discussed
under subheadings for each involved supervisor. A number of
conversations with or interrogations and threats by
supervisors that are not specified in the Complaint were
testified about by the employee witnesses. Those
conversations or interrogations which occurred before the
January 27 layoff will be considered on their merits as
Respondent's defense to these is simply that no conversations |
about the Union between management and employees could |
have occurred before the layoff as Respondent denies any |
knowledge of the Union campaign until after the layoff.
Under these circumstances, Respondent would not be denied
due process as no investigation of these conversations is
OP eect ee Ce ee Pe ee Pee eee
56a .
NLRB Decision and Order - 8/24/99
necessary. On the other hand, with one exception,
conversations which are not alleged to be unlawful in the
Complaint occurring after January described by the employee
witnesses will not be considered on the merits as Respondent
Was not given the opportunity to investigate the circumstances
of these alleged conversations.
Supervisor Augustine Garcia
Supervisor Augustine Garcia, asked employee
Guadalupe Leal if he was in the union movement while he
was working in December. Lea said that he was. Garcia said
that he was not interested in the union.°
Hugo Benavides, began working for Respondent in
September 1994 as a grinding machine operator. About the
middle of December 1994, supervisor Augustine Garcia spoke
to him while he was working. Garcia asked him if he was in
the Union. Benavides replied that he was in the process of
getting in the Union.’
In the latter part of January, supervisor Garcia
approached employee Nelson Chajon white he and Lucio
Aviles were discussing the Union. Aviles left and Garcia-
asked him what they were saying about the Union. Chajon did
° This testimony relates to Complaint allegation 7(a),
above.
” This testimony relates to Complaint allegation 7(a),
above.
57a
NLRB Decision and Order - 8/24/99
not answer and Garcia asked why he did not want to tell him.
Garcia left at this point.’
On January 25, supervisor Garcia asked forklift
operator Manuel Perez at work, if he was attending Union
meetings and Perez answered that he was not. Perez had
attended such meetings, but feared he would be fired if he
admitted it.’
On January 27, electrical employee Luis Martines had
a conversation with supervisor Garcia. Garcia told him, "Do
you realize what happens to the suckers -- al! the stupid guys
that are involved with the union? We kicked out the first
sucker and you wait and see what is going to happen to the
others." The witness responded, "We were going to get fired
because we were fighting against injustice?" According to the
witness, Garcia said, "We kicked out -- we fired that shit,
Jose Rosales, and we are going to continue with all the
others." Garcia told him to wait, that they were going to see
what was going to happen to them.'°
Martines also testified that in about November, he
spoke with supervisor Garcia while working at his job. Garcia
approached him and said, "Aww, you know, quit this cock-
8 This testimony relates to Complaint allegation 7(b),
9 This testimony relates to Complaint allegation 7(b),
above.
0 This testimony relates to Complaint allegation 7(c) and
(d), above.
58a
PDN Sense Aha AB ite tisk SACI tA a3 Mail ia a RS eC aR
Wass Aa eat 2 MRS Dante
NLRB Decision and Order - 8/24/99
sucking maneuver or act. Quit this nonsense - stupid things.
John Bazbaz, Javier Guerrero already know that you are the
leader of this movement." The witness added that Garcia also
told him to stop his involvement with the Union, because
Bazbaz fired employees who tried to get the Union in. Garcia
added that he knew that Martines was the leader of the
movement and that Lucio Aviles was the second in command.
Garcia then asked who were the other Union supporters and
when they were going on strike. The witness did not answer.
Garcia then told him that the boss was not going to rest until
he saw they were out of a job and that the employees were
going to be sorry for organizing the Union. !!
Employee Pedro Molgar testified that around January
30, he asked supervisor Garcia why the employees had been
laid off. Garcia told him they were laid off because of the
problem they were causing the Company, identifying the
Union as the problem.”
Supervisor Javier Guerrero
On January 27, Guerrero told Castro and another
employee, Hugo Benavides they were being laid off because
‘| This testimony relates to Complaint allegations 7(a),
and or 7(f) and (g), above.
'? I believe the correct date for this conversation was
January 27, the date of the layoff. Molgar was not laid off until
January 30. It was pointed out that in his affidavit to the Board,
Molgar did not say that Garcia identified the Union as the problem
causing the layoff. This testimony relates to Complaint allegation
7(d) above.
59a
NLRB Decision and Order - 8/24/99
of a lack of material. Castro told him that the real reason for
the layoffs was the Union. Guerrero responded by saying it is
the policy or politics of John Bazbaz. Guerrero suggested that
it he wanted to talk further to call his lawyer. Castro asked
why and Guerrero told him "Because you are going to need
it." Guerrero then laughed at him. Castro said this was not a
joke and Guerrero said, "Take it as you wish."
Later that day, Castro encountered Supervisor Portillo,
who said, "It has happened." Castro asked, "What are you
talking about?" Portillo answered, "You got fired." Castro
said, "You already knew." Portillo responded, "Yes." Castro
said, "Thank you for your good help."
At a later point on the 27th, Guerrero went to Castro
at the densifier where Castro was speaking with some other
employees. He was accompanied by a security guard.
Guerrero threatened the employees, saying, "Quit talking
about that union. See what happened to (Castro). This could
happen to you, too. If you don't leave, I am going to kick you
out." Castro left.’
Employee Montes de Oca related a conversation he
had in early 1995 with supervisor Javier Guerrero. He was
waiting to give another employee some authorization cards to
distribute. Guerrero asked him. "What the fuck are you doing
' This threat is not alleged in the Complaint, but is
credited in any event for the reasons set forth later in this section.
60a
NLRB Decision and Order - 8/24/99
with those cards?" Guerrero then told him that if he continued
to distribute the cards, he would fire him."
Lucio Aviles testified that around the beginning of
January, 1995, while repairing an electrical problem with a
fellow employee, Luis Martines, supervisor Javier Guerrero
approached them angrily and put his hands on the panel that
Aviles and Martines were working on Aviles told him to calm
down. Guerrero raised his hands in an agitated way and told
Aviles to "quit the cocksucking attitude, because that is what
you are. And that is what you are doing with the union."
Electrical employee Martines also remembered this
occasion. He testified that Guerrero approached them in an
angry manner and asked, "What the fuck we were doing
there?" They were performing electrical work on a panel.
Guerrero tried to close and open the doors of the panel and
Aviles told him to be careful because they had not finished
repairing the panel. They had cut the electricity to the panel
while they were repairing it. Guerrero said to "Quit all this
shit. You (referring to Aviles) and those of the union will
suck my prick. These are just cocksucking things." According
to Martines, Guerrero was furious and he began to roll up the
Sleeves of his shirt and gestured at Aviles. The witness saw
that Guerrero was angry and told Aviles to leave. He testified
that Hallatt was observing this incident but did nothing.'°
14
This testimony is related to Complaint allegation 8(a),
above.
> This testimony was not alleged to be a violation of the
Act in the Complaint. However, for the reasons set forth later in
this section, I credit the testimony and find that Guerrero did
6la
NLRB Decision and Order - 8/24/99
Luis Martines testified that on January 27, he was told
to report to Guerrero.
Guerrero told him to sign a paper, but hid what the
paper said. The witness said he could not sign without
knowing what he was signing. According to Martines,
Guerrero said, "I want to tell you the truth. This is a policy
of John Bazbaz to fire all those from the union. This is why
we are going to give lay-off to all of them."The witness asked
why all the employees were being laid off when there was so
much work to be done. Guerrero replied, "That is the boss'
policy.'°
te i en
Alejandro Blasio learned he was being laid off on
January 27 when he arrived for work about 3:00 pm. A
supervisor, Fernando Molina told him to punch his timecard
and report to Javier Guerrero. When he did so he met with
Guerrero in the company of almost all of the employees on
his shift, including Edgar Carrera, Jose Giron, and Nery
Mendoza. In all about eight to ten employees were at this
meeting. The witness described the meeting thusly: "Javier
Guerrero was behind his desk. Everybody else was around
him. I arrived; I was one of the last ones. I went in. He gave
me an envelope, and he told me, 'We are giving you layoff
because of a lack of work.' Guerrero gave him a letter. I
opened the envelope. And Javier Guerrero told me, ‘Sign the
copy, give it to me, and keep the original.' And I said, Why
is this? He said, ‘Because there is no work, and so we are
de heli Cad: Ata Nltslag Blatt Jerteip
POOR A er OAD 66 Mi er thar, ae
threaten Aviles and Martinez in violation of the Act.
'© This testimony relates to Complaint allegation 8(c),
above.
62a
NLRB Decision and Order - 8/24/99
going to have a temporary personnel reduction.’ And then at
that time my workmate, Jose Giron, asked Javier Guerrero,
Javier, why are they laying off or letting go everyone whose
name appears on the letter of the organizing committee that
the union sent to the company?’ Javier Guerrero told him,
‘That is not true, because Nery Mendoza's name does not
appear.’ And he pointed to another person whose name I
don't recall, and he said that that person's name did not
appear, either." "I told Javier Guerrero, ‘Listen, what are we
going to do?' He said, ‘How is it possible that you are
complaining to me if you are going to get pay for not
working? Besides, you are going to have time to think about
what you are doing.' And later on he said, 'This is nothing
personal. | just take orders. But I want to give you an advice:
Look well who is guiding you.""”
On January 27, 1995, Nery Mendoza was laid off by
Guerrero in the same meeting as was Jose Giron and Luis
Martines. According to Mendoza, in this meeting Guerrero
Said they were being temporarily laid off at the direction of
those above him. Jose Giron, who was also being laid off
asked him why he was firing those employees who were on
the list of Union supporters. Javier Guerrero said, "I don't
remember what list are you talking about.” Jose Giron said,
"The list that the union sent to you." Guerrero responded, "I
don't remember. Perhaps it didn't get here; wasn't delivered
” Luis Martinez went back to the plant to pick up his final
paycheck on January 30 or 31. He got the check and went to the
parking lot with some other laid off employees. According to
Martinez, Bazbaz came out and told a security guard to get the men
out of the lot, he did not want to see them on his property.
63a
NLRB Decision and Order - 8/24/99
by the mail. I haven't seen it. Besides, Nery and Mauro are
not on the list.""*
Mario Perez was laid off on January 27 in a meeting
held by Guerrero with the witness and fellow employees
Edgar Carrera, Nery Mendoza, Mauro Moran, and Jose
Giron. Guerrero told them that they were being temporarily
laid off because of economic reasons and would be recalled if
the situation resolved itself. Giron asked if they were being
laid off because of the list of Union [supporters], and
Guerrero answered that he did not know anything about the
Union. He then commented that Nery and Mauro were not on
the list.
Jose Giron was laid off in a meeting with Guerrero
and fellow employees Mario Perez, Nery Mendoza, Edgar
Carrera, Alejandro Blasio, and Mauro Moran. Guerrero told
the employees they were being laid off because of lack of raw
materials. The witness asked Guerrero why they were letting
go only those who appeared on the list of the organizing
committee of the union. Guerrero named two employees
being laid off and noted they were not on the list. These two
employees were Nery Mendoza and Mauro Moran. Guerrero
added that he knew nothing about the Union.
Lucio Aviles went back to the plant two days after the
layoff and asked Guerrero for work. Guerrero told him that
he did not know, but that a lot of high density material had
arrived. He added that he would have to wait until Bazbaz
'8 The testimony in the preceding three paragraphs relates
to Complaint allegation 8(b) above.
64a
Che AR ate P< a an Sam set
NLRB Decision and Order - 8/24/99
arrived to see what he had planned. Aviles then started to
leave and Guerrero said, "You see what you got for being
involved with the union?"!?
Supervisor Fernando Molina
Felix Jovel Palacios was employed by Respondent
until he was laid off and was supervised by Sergio Palacios.
In the last part of 1994 and the first part of 1995, he was
asked by supervisors what was going on about the Union and
he would tell them he did not know. One of these supervisors,
Fernando Molina, around the beginning of December 1994,
asked him what was going on and the witness said he did not
know.”
Employee Leonel Campoverde worked for Respondent
for three years, until he was laid off in January 1995. His
Supervisor was Fernando Molina. Campoverde testified about
a conversation he had in the Company dining room with
Molina together with fellow employee Marco Posadas and
two others. According to Campoverde, Molina said: "if we
were going to think about the union -- belong to the union, for
us to do it well because otherwise they were -- we were going
9 This testimony related to Complaint allegation 8(c)
above.
20
above.
This testimony related to Complaint allegation 9(a),
65a
NLRB Decision and Order - 8/24/99
to fuck up.” Molina indicated in this conversation that he
knew the four employees were Union supporters.”
Supervisor Sergio Palacios
Lucio Aviles testified that on January 27, he and
fellow employee Luis Martines were approached by
supervisor Palacios who told them that he had seen a list
possessed by Javier Guerrero that contained the names of
employees who were going to be fired because of their
support for the Union.”
Supervisor German Robles
Employee Nelson Rodriquez testified that the day
before he was laid off, Robles asked him if he had signed a
paper for the Union, adding that if he had he would be fired.”
About a month after the layoffs occurred, Juan Torres,
a current employee, had a conversation with supervisor
Herman Robles. Robles told him that "[the] union was for
lazy people and that I was going to be sorry being there -- that
2! This testimony related to Complaint allegation 9(a) and
(b), above.
22 ‘There was no testimony elicited in the hearing
supporting the Complaint allegations regarding Palacios prior other
than those relating to events in June, 1995. | however credit and
rely on the testimony of Aviles set out above to establish a violation
of Section 8(a)(1).
3 This testimony related to Complaint allegations 11(a)
and (b) above, though the dates are not the same.
66a
NLRB Decision and Order - 8/24/99
I was going to regret being there, that the union was going to
take away half of my check." The witness testified that Robles
asked him if he were in the Union.”
Rudolfo Bocanegra began working for Respondent in
November 1994, and was employed in packing. His
supervisor, Herman Robles, spoke to him about the Union on
or about January 25, 1995. Robles told him that he knew that
the witness and another worker, Camilio Ramirez, were in the
union and that they were going to fire them.~
In November, Nicolas Chajon, a densifier operator,
was working at his machine when supervisor Herman Robles
came to him. Robles asked him if he belonged to a union.
Before Chajon answered, Robles said that he knew Chajon
belonged to the union. Robles continued by telling Chajon
that the Union was a waste of time and what Chajon was
going to get was fired. Chajon countered that the Union was
** There is no Complaint allegation to support this alleged
interrogation and as it allegedly occurred after Robles admittedly
gained knowiedge of the Union campaign is in a different posture
from those interrogations taking place before January 27. For this
reason and because it is cumulative of other similar interrogations,
I will not base a finding of a violation on the testimony.
*S This alleged threat is not contained in the Complaint,
but is relied upon to find a violation of Section 8(a)(1) because it
occurred prior to the January layoffs and is closely related to other
similar threats made by supervisors.
67a
NLRB Decision and Order - 8/24/99
the benefit of all employees. Robles said, "Then you belong
to the Union."”
Supervisor Cesar Portillo
Mario Perez began working for Respondent in
December of 1993 and was employed as an extruder operator.
His supervisor was Cesar Portillo. The witness was a member
of the organizing committee. In the last part of November,
1994, Perez was approached in the Company dining room by
supervisor Portillo. The witness and some fellow employees
asked Portillo why the Company had discharged another
employee. Portillo said that the employee had been absent
without calling one day and was discharged for that. The
witness then asked why the Company did not call the
employees on days they have no work for them rather than
having the employees come to work and then be sent home.
Portillo responded that he was not interested, even less
interested as he knew the employees were associated with the
Union.”’
Forklift operator Nery Mendoza testified that in mid
December, he was checking the oil in the forklift, when Cesar
Portillo arrived. Portillo told him to tell him who were the
leaders of the union. Portillo continued, "Because if you don't
26
This testimony related to Complaint Allegations 11(a) and (b)
above.
27 This threat is not alleged in the Complaint, but is
credited and a violation found based upon this testimony for reasons
set forth later in this section.
68a
NLRB Decision and Order - 8/24/99
tell me who are the leaders or the bosses, I am going to get
you down from this shitty forklift and I am going to send you
back to the densifier so you can screw yourself like before. So
you think well about it, because it is going to affect your job."
Another employee, Alejandro Blasio was in the vicinity when
this conversation took place.”
Alejandro Blasio began working for Respondent on
November 7, 1994, having been hired by Javier Guerrero. He
was a densifier machine operator and was supervised by
Cesar Portillo. He described a conversation about the Union
he had with supervisor Portilla in January. He was working
at his machine and another employee Nery Mendoza was
nearby. He described the conversation: "On that occasion, I
was outside my machine. The supervisor, Cesar Portillo,
came by, and he told me that he already knew that I was
mixed with this thing of the union. And the worst thing was
that my name was on the list of the organizing committee.
And he was not a stupid guy, that everyone whose name
would be on the list that the organizing committee sent to the
union, we would be the first ones to be kicked out or let go to
the street. After that, he told me, ‘but if you want to
cooperate with us, it could be a bonus for you.’ He told me,
"Think about it.'"??
Mendoza also noted another instance of a threat by
Portillo. About the middle of December, supervisor Portillo
28
above.
This testimony related to Complaint allegation 12(a)
9 This testimony related to Complaint allegations 12(1),
(j), (k), (I) (m) and (n), above.
69a
NLRB Decision and Order - 8/24/99
approached Mendoza and fellow worker Edward Carrera.
Portillo asked Mendoza if he "knew who in the hell was
distributing papers of the union in that company." The witness
said he did not know. Portillo then threatened both men with
discharge if he learned they were distributing papers for the
Union inside the company.*”
Jose Americo Rosales began working for Respondent
in April, 1991 and worked as a washing machine operator
until he was laid off in January 1995. During the first week
of January, he had a conversation with supervisor Cesar
Portillo at the plant at 6:45 in the morning. Another worker,
Oscar Godines was present during the conversation. Rosales
testified that Portillo asked him if he were the head or the
boss of the union movement. Rosales told him that he did not
know why he was asking him that. Portillo responded "Don't
play the fool with me. That he already knew why he was
asking me that." Rosales then said t
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.