NOTICE:  This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions.  Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C.  20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Champion Home Builders Co. a subsidiary of Champion Enterprises, Inc. and Carpenters Union Local No. 1109, a/w United Brotherhood of Carpenters and Joiners of America.[1]  Case 32–CA–17185

July 23, 2007

SUPPLEMENTAL DECISION AND ORDER

By Members Schaumber, Kirsanow,
and Walsh

On November 19, 2004, the National Labor Relations Board issued a Decision and Order in this proceeding, in which it found, among other things, that the Respondent, Champion Home Builders Co., did not violate Section 8(a)(1) by failing and refusing to stay or seek the dissolution of a restraining order issued against Ramon Rivas by a California State court.[2]  Subsequently, the Union petitioned the United States Court of Appeals for the Ninth Circuit for review of the Board's Order.[3] By unpublished memorandum dated December 4, 2006, as amended on January 22, 2007, the Ninth Circuit granted the Union’s petition for review in part and remanded the case to the Board “for further proceedings consistent with this disposition.”[4]

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

We accept the court's remand as the law of the case. In doing so, we find that additional briefing is not warranted. The court's decision holds that, “to the extent the state court’s restraining order prohibited Rivas from contacting or sending any messages to Champion employees, it encompassed protected activity under the [Act] and was preempted as of the date the [Board] complaint against Champion issued.” Consistent with the court’s decision, we now find that the Respondent violated Section 8(a)(1) of the Act by failing and refusing to stay or seek the dissolution of the restraining order issued against Rivas by the California State court once the Board issued the complaint in this proceeding alleging that Rivas’ discharge violated the Act. Our reasoning follows.  

FACTS AND PRIOR DISPOSITIONS

The Respondent discharged Rivas on or about December 18, 1998.[5] On December 23, the Respondent initiated legal proceedings in state court to seek a temporary restraining order (TRO) against Rivas. The next day, Rivas was served with a TRO issued by the State court. The TRO included a prohibition against coming within 100 yards of the Respondent's facility or contacting Plant Manager Jim Stewart or any of the Respondent's employees. Following the hearing to show cause, the State court issued a restraining order on January 7, 1999, prohibiting Rivas from coming within 50 yards of the Respondent's facility and contacting the Respondent's employees during working hours. On March 30, 1999, the General Counsel issued a complaint alleging that the Respondent had unlawfully discharged Rivas.

In a letter dated September 1, 1999, the Regional Director demanded that the Respondent request the State court to withdraw the restraining order. The Respondent refused to do so. On September 3, 1999, the General Counsel issued an amended complaint containing an additional allegation that the Respondent violated Section 8(a)(1) by failing and refusing to stay or seek dissolution of the TRO.

In its initial decision, the Board found, consistent with the administrative law judge, that the Respondent unlawfully discharged Rivas. Contrary to the administrative law judge, however, the Board dismissed the allegation that the Respondent violated the Act by failing to stay or seek dissolution of its restraining order. The Board reasoned that the State court lawsuit was directed at Rivas’ unprotected activity—specifically, threats of violence—but not at his protected concerted activity. Thus, the Board found that the State court lawsuit was not preempted upon issuance of the complaint. Rather, the Board concluded that “the better approach is to allow the restraining order to coexist with the unfair labor practice complaint, and to find preemption only at the point the Board issues an order containing a remedy that conflicts with the State court lawsuit.”[6] Under that approach, the Board found that its reinstatement remedy conflicted “with the part of the restraining order prohibiting Rivas from entering the Respondent’s property and contacting employees during working hours,” and ordered the Respondent to petition the State court to withdraw those portions of the restraining order.

Upon review, the Ninth Circuit disagreed with this aspect of the Board’s decision. It concluded that “[a]lthough the state court had discretionary power to enjoin Rivas from engaging in violent behavior, to the extent the state court’s restraining order prohibited Rivas from contacting or sending any messages to Champion employees, it encompassed protected activity under the NLRA, and was preempted as of the date the NLRB Complaint against Champion issued.”

ANALYSIS

It is not disputed that the states “must yield to the Board’s primary jurisdiction over conduct clearly protected or prohibited by Sections 7 or 8 of the Act.”[7] The only issue here concerns that date on which the relevant portions of the State court lawsuit were preempted. The court found that, to the extent the State court order prohibited protected concerted activity under the Act, it was preempted as of the date the Board complaint issued.  We accept the court’s decision as the law of the case and therefore find that the portion of the Respondent's restraining order that “prohibited Rivas from contacting or sending any messages to Champion’s employees” was preempted as of the date the Board’s complaint on Rivas’ discharge issued, rather than the date the Board issued its Order. Therefore, by failing to withdraw those portions of its lawsuit after the Board complaint issued, the Respondent violated Section 8(a)(1) of the Act. 

Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing, upon issuance of the Board’s complaint on Rivas’ discharge, to stay or seek the dissolution of the portion of its restraining order prohibiting Rivas from contacting or sending any messages to the Respondent’s employees, the Respondent violated Section 8(a)(1) of the Act.

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

Remedy

Consistent with the Ninth Circuit’s decision, we shall direct the Respondent to cease and desist from maintaining the preempted portions of its restraining order.[8] In its prior Decision and Order in this case, the Board directed the Respondent to petition the State court to withdraw the portion of its lawsuit prohibiting Rivas “from entering the Respondent’s property and contacting its employees during working hours.”[9] Inasmuch as the court has already enforced this provision of our original Order, we shall not repeat it here.[10]

ORDER

The National Labor Relations Board orders that the Respondent, Champion Home Builders Co., Lindsay California, its officers, agents, successors, and assigns, shall

1.  Cease and desist from

(a) Failing and refusing to stay or seek the dissolution of the portions of its restraining order that prohibit Ramon Rivas from contacting or sending any messages to the Respondent’s employees.

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

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

 (a)  Within 14 days after service by the Region, post at its Lindsay, California facility copies of the attached notice marked “Appendix.”[11]  Copies of the notice, on forms provided by the Regional Director for Region 32, 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 employees and former employees employed by the Respondent at any time since December 18, 1998.

(b) 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.,   July 23, 2007

 

 


Peter C. Schaumber,                 Member

 

Peter N. Kirsanow,                                   Member

 

Dennis P. Walsh,                                     Member

 

(seal)          National Labor Relations Board

 

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 Federal labor law and has ordered us to post and obey this notice.

 

FEDERAL LAW GIVES YOU THE RIGHT TO

 

Form, join or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

 

We will not fail and refuse to stay or seek the dissolution of the portions of our restraining order that prohibit Ramon Rivas from contacting or sending any messages to our employees.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

 

Champion Home Builders Co.

 


[1] We have amended the caption to reflect the disaffiliation of the United Brotherhood of Carpenters and Joiners of America from the AFL–CIO effective March 29, 2001.

[2] 343 NLRB 671.  Member Walsh, dissenting in part, would have found that the Respondent violated Sec. 8(a)(1) by failing to stay or seek dissolution of the restraining order against Rivas following issuance of the unfair labor practice complaint.  Member Kirsanow did not participate in the Board’s prior decision.  

[3] The Board also filed an application for enforcement of its Order, and the Respondent filed a petition for review.

[4] In addition to the finding at issue here, the court granted the Board’s application for enforcement regarding its finding that the Respondent discharged Rivas in violation of Sec. 8(a)(1) of the Act.  Carpenters Union Local 109 v NLRB, 219 Fed.Appx. 654 (9th Cir. Jan. 22, 2007), amending 209 Fed.Appx. 692 (9th Cir. Dec. 4, 2006). 

On February 8, 2007, the Charging Party filed a letter with the Board, stating that the court’s remand “should allow the parties to submit position statements.”  However, as discussed below, given the specific terms of the court’s remand, we find that additional briefing is not warranted. 

[5] Dates are in 1998 unless otherwise noted.

[6] 343 NLRB at 673.

[7] Loehmann's Plaza (Loehmann's Plaza I), 305 NLRB 663, 669 (1991) (relying on San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 (1959)), revd. on other grounds, Loehmann's Plaza (Loehmann's Plaza II), 316 NLRB 109 (1995), rev. denied sub nom. Commercial Workers, Local 880 v. NLRB, 74 F.3d 292 (D.C. Cir. 1996), cert. denied sub nom. Teamsters Local 243 v. NLRB, 519 U.S. 809 (1996).

[8] The record indicates that the restraining order was set to expire by its own terms in January 2002.

[9] Champion Home Builders, supra at 674.

[10] See, e.g., West Penn Power Co., 346 NLRB No. 42, slip op. at 5 fn. 10 (2006).

In its letter, the Charging Party requests that the Board consider ordering intranet posting of the notice.  Assuming arguendo that this request is properly before us (see fn. 4, supra), we find that intranet posting of the notice is not necessary to remedy the violation found.  

[11] 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.”