N.L.R.B. v. DBM, Inc.
| Decision Date | 05 March 1993 |
| Docket Number | No. 91-3729,91-3729 |
| Citation | 987 F.2d 540 |
| Parties | 142 L.R.R.M. (BNA) 2731, 124 Lab.Cas. P 10,588 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DBM, INC., Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Harry W. Zanville, Waterloo, IA, argued, for petitioner.
Vincent Falvo, Washington, DC, argued, for respondent.
Before RICHARD S. ARNOLD, Chief Judge, LAY, Senior Circuit Judge, and LOKEN, Circuit Judge.
Following a lengthy evidentiary hearing, the National Labor Relations Board concluded that respondent DBM, Inc., violated §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), when it retaliated against employees for their union organizing activities. The Board's cease and desist order directs DBM to reinstate and make whole four employees laid off or discharged because of their union activities, to revoke seven work rules adopted in reprisal for employees' unionizing activities, and to make employees whole for any losses suffered because of those work rule changes. The Board has petitioned for enforcement of its order. DBM resists enforcement of two aspects of that order--revocation of a work rule change that placed a 150% ceiling on DBM's weekly incentive pay system, and reinstatement of discharged employee Howard Howe. We enforce the Board's order in its entirety.
The Incentive Pay Ceiling.
DBM operates a machine shop in Cedar Falls, Iowa. In late 1988, more than half of DBM's revenues came from chipping and grinding services performed on a Pontiac block for John Deere and Company. In early January 1989, DBM announced to employees that it would reduce their piece rate on the Pontiac block from $1.45 to $1.15 to reflect a sixty cent price decrease imposed by John Deere. Dissatisfied employees contacted representatives of Local 838 of the United Auto Workers, and a union organizing campaign began with employee meetings on January 10 and 14. On January 16, 1989, the union sent an exclusive representation letter to DBM.
On January 17, DBM announced and implemented thirteen written work rules. Some of these rules reflected prior practices at the plant, but most were new restrictions or old rules that had not been enforced. The Board's administrative law judge found generally that, "no set of rules would have issued at this time but for the union activity." He then separately analyzed the nature and impact of each rule and found that seven, including the incentive rate ceiling at issue on this appeal, were unfair labor practices because they were "instituted or newly enforced for the sole purpose of intimidating the employees because of their union activities." The Board adopted the ALJ's opinion.
Prior to January 17, a line of DBM employees could earn more than the $5.00 per hour base rate if their line's average daily performance exceeded 100% of the base rate level (which in turn was based upon the Pontiac block piece rate). One of the January 17 work rules effectively placed a 150% ceiling on an employee's incentive rate. This rule was rescinded on March 13, three days after the union won the organizing election.
At the hearing, DBM attempted to justify the incentive rate ceiling as a safety rule, intended to reduce employee accidents and workers compensation insurance expense by removing any inducement for hasty, slipshod work. This experiment ended two months later, DBM explained, when it found that production had decreased and labor costs increased with no reduction in employee accidents. The ALJ found this explanation "incredible and totally unsupported." He credited employee testimony that the ceiling was presented to employees as a means to reduce their income in the midst of a union organizing campaign and concluded that it was discriminatorily motivated. Our review of the record persuades us that substantial evidence supports these findings and conclusion.
DBM argues on appeal that the ALJ erred in finding that the incentive rate ceiling "seriously affected the income of employees." DBM complains that the ALJ failed to understand the incentive rate system's averaging concept and ignored convincing evidence that the 150% ceiling, as implemented, had little impact on each employee's earnings.
We agree with the Board that this economic impact argument misses the mark at this stage of the proceedings. The order under review holds that the incentive rate ceiling was unlawfully implemented in retaliation for employees' protected union activities. While it orders that DBM "make whole all employees for any losses suffered," under established Board procedures the amount of "backpay" to which any employee is entitled will be determined in a further proceeding at which the Board's General Counsel must produce the adversely affected employees, see NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175-78 (2d Cir.1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966); calculate and present "the net backpay due" for each employee, see 29 C.F.R. §§ 102.55(a); 1 and afford DBM an opportunity to rebut these claims, see 29 C.F.R. § 102.54(a). See also Woodline Motor Freight, Inc. v. NLRB, 972 F.2d 222 (8th Cir.1992).
Since there was substantial evidence supporting the Board's decision that the incentive rate ceiling was discriminatorily motivated, this...
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N.L.R.B. v. MDI Commercial Services
...activity. See NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 401-03, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983); NLRB v. DBM, Inc., 987 F.2d 540, 542-43 (8th Cir.1993). The Board concluded the General Counsel met his burden of proving these employees' protected activities were a motivating fa......