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,
Post Tension of Nevada, Inc. and District Council of Iron Workers of the State of California and Vicinity. Case-28–CA–21579
August 29, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On April 18, 2008, Administrative Law Judge Lana H. Parke
issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General Counsel and the
Charging Party filed cross-exceptions and supporting briefs. The General Counsel and the Respondent filed
answering briefs and reply briefs.
The National Labor
Relations Board has considered the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the
recommended Order as modified and set forth in full below.2
Amended Remedy
Having found that
the Respondent unlawfully failed and refused to reinstate 15 unfair labor practice
strikers on September 26, 2007, we shall order the Respondent to offer those
employees immediate and full reinstatement to their former positions (to the
extent it has not already done so), or, if the positions no longer exist, to
substantially equivalent positions, without prejudice to their seniority or
other rights or privileges, discharging, if necessary, any replacements hired
after the start of the strike. Any
employee for whom employment is not immediately available shall be placed on a
preferential hiring list for employment as positions become available, and
before other persons are hired for such work, with placement on the list
determined by seniority or some other nondiscriminatory standard. RGC (
ORDER
The
National Labor Relations Board orders that the Respondent, Post Tension of
Nevada, Inc.,
1. Cease and desist from
(a) Refusing to
reinstate unfair labor practice striking employees who made unconditional
offers to return to their former or substantially equivalent positions of employment.
(b) Promulgating and maintaining overly broad and
discriminatory work rules designed to prohibit employees from meeting with
union representatives and from assembling for such purposes at local retail
establishments.
(c) Threatening employees with discharge if they
engage in a strike.
(d) Informing employees it will not issue paychecks
on Friday mornings in order to interfere with employees’ protected union
activity of meeting with a union representative.
(e) Refusing to give any person an employment
application because of the person’s union affiliation.
(f) In any like or related matter 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 from the date of this Order, insofar as it has not already done so, offer the employees named below, immediate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights or privileges.
Agustin
Cuevas Ayala Crecensio Montoya
Ramirez
Leobardo
Delgado Jesus
Prudenciado-Orenday
Alfonso Arca Salazar Aureliano Zazueta-Rivera
David Amaya Ruiz Eduardo Velasco Hernandez
Gregorio
Quiroz Sanchez Leonidas Ruiz-Quiroz
Teodoro
Flores Sanchez Damion Garcia
Salvador
Quiroz Merino Felix Quiros
Jesús Martinez
(b) Make the employees described in paragraph 2(a) above whole for any loss of earnings and other benefits suffered as a result of the unlawful discrimination against them in the manner set forth in the amended remedy section of the Board’s decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to reinstate the employe 3 days thereafter notify them in writing that this has been done and that the refusal to reinstate them will not be used against them in any way.
(d) Rescind its prohibition against its employees meeting at a nearby Chevron station on their way to their worksite, and notify its employees in writing that it has done so.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of back pay due under the terms of this Order.
(f) Within 14 days after service
by the Region, post at its office in
(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 Respondent has taken to comply.
Dated,
_______________________________________
Peter C. Schaumber, Chairman
_______________________________________
Wilma B. Liebman, Member
(Seal) National Labor Relations Board
Notice To Employees
Posted by Order of
the
National Labor
Relations Board
An Agency of the
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 refuse to reinstate employees who engage in an unfair labor practice strike and who make unconditional offers to return to their former or substantially equivalent positions of employment.
We will not make and announce work rules in order
to prohibit employees from meeting with the District Council of Iron Workers of
the State of
We will not threaten employees with discharge if they engage in a strike.
We will not tell employees we will not issue paychecks
on Friday mornings in order to interfere with employees meeting with representatives
of the
We will not refuse to give any person an employment application because of the person’s union affiliation.
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights listed above.
We will offer the employees named below, immediate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed:
Agustin
Cuevas Ayala Crecensio Montoya Ramirez
Leobardo Delgado Jesus Prudenciado-Orenday
Alfonso
Arca Salazar Aureliano Zazueta-Rivera
David Amaya Ruiz Eduardo Velasco Hernandez
Gregorio
Quiroz Sanchez Leonidas Ruiz-Quiroz
Teodoro
Flores Sanchez Damion Garcia
Salvador
Quiroz Merino Felix Quiros
Jesús
Martinez
We will make the employees named above whole for any loss of earnings and other benefits suffered as a result of our unlawful discrimination against them, with interest.
We will remove from our files any reference to the unlawful refusals to reinstate the employees named above and we will, within 3 days thereafter, notify them in writing that this has been done and that the refusals to reinstate will not be used against them in any way.
We will rescind our prohibition against our employees meeting at a nearby Chevron station on their way to their worksite, and we will notify our employees in writing that we have done so.
Post Tension of Nevada, Inc.
Chris J. Doyle,Esq., for the General Counsel.
James T. Winkler (Littler Mendelson, PC), of
Brady Bratcher (District Council of Iron Workers
of the State of
DECISION
i. statement
of the case
Lana H. Parke, Administrative Law Judge. This matter was tried in Phoenix, Arizona on February 12 through 14 and 27, 20081 upon complaint and notice of hearing (the complaint) issued November 30, 2007 by the Regional Director of Region 28 of the National Labor Relations Board (the Board) based upon charges filed by District Council of Iron Workers of the State of California and Vicinity (the Union). The complaint alleges Post Tension of Nevada, Inc. (the Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act).2 Respondent essentially denied all allegations of unlawful conduct.
ii. issues
1. Did the Respondent engage in the following violations of Section 8(a)(1) of the Act: engage in surveillance of employees engaged in union and other concerted activities; orally promulgate and maintain overly broad and discriminatory rules that prohibit employees from talking to Union representatives, that prohibit employees from assembling at a facility where they engage in concerted activities, and that prohibit employees from cashing checks at a facility close to the Respondent’s facility; threaten employees with discharge if they engage in a strike.
2. Did the Respondent violate Section 8(a)(3) and (1) of the Act in the first week of September by imposing more onerous terms and conditions of employment by prohibiting its employees from cashing checks at a facility close to the Respondent’s facility.
3. Did unfair labor practices committed by the Respondent cause or prolong the strike engaged in by certain employees of the Respondent on September 20?
4. Did the Respondent violate Section 8(a)(3) and (1) of the Act on September 20 by discharging employees David Amaya-Ruiz, Alfonzo Arce-Salazar, Agustin Cuevas-Ayala, Leobardo Delgado, Teodoro Flores-Sanchez, Damian Garcia, Jesus Martinez, Crecencio Montoya-Ramirez, Jesus Prudenciano-Orenday, Felix Quiros, Salvador Quiroz-Merino, Gregorio Quiroz-Sanchez, Leonides Ruiz-Quiroz, Eduardo Velasco-Hernandez, and Aureliano Zazueta-Rivera.
5. Has the Respondent, since September 26, violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate the employees named in paragraph 4 above to their former or substantially equivalent positions of employment following their unconditional offers to return to those positions.
6. Did the Respondent violate Section 8(a)(3) and (1) of the Act by refusing to consider applicant Brady Bratcher for employment.
iii.
jurisdiction
At all relevant times, the Respondent, a Nevada corporation,
has been engaged in the business of installing stress cables used in the
construction industry with an office and place of business in Phoenix, Arizona
(the Respondent’s Phoenix facility). During
the 12-month period ending September 20, the Respondent purchased and received
at its facility goods valued in excess of $50,000, directly from points located
outside the state of
iv. findings
of fact
A. The Respondent’s Business
The Respondent operates its construction-industry business
out of facilities located in
John Hohman (Hohman) Vice-President
Matt Pickens (Pickens) Superintendent
Javier Loya Bando (Loya) Assistant Superintendent
Ken Saffin (Saffin) Manager
In 2007, the following seven employees, stipulated supervisors within the meaning of Section 211 of the Act, served as the Respondent’s field foreman:
Roberto Arce-Salazar (Foreman Salazar)
Jesus Guerrerro (Foreman
Guerrerro)
Ezequiel Ordonez (Foreman Ordonez)
Juan Quintero (Foreman
Quintero)
Juan Delgado (Foreman
Delgado)
Rosalio Gastelum (Foreman Gastelum)
Jaime Fernandez (Foreman Fernandez)
At all relevant times, the Respondent’s construction
projects in
The Respondent paid its field employees an hourly rate plus a production bonus, normally issuing paychecks to the field employees each Friday morning.3 Having established check-cashing privileges at the Chevron station, many crew members cashed paychecks there on payday mornings.
B. Union Organizational Activity among the Respondent’s Field Employees
In 2005 Brady Bratcher (Bratcher), organizer for the
In early 2007 with the intention of organizing the Respondent’s employees, Bratcher began visiting the Chevron station where he knew many employees gathered before dispersing in crews to individual worksites. A number of employees expressed to Bratcher dissatisfaction with the Respondent’s failure to implement its 2005 poststrike promises, and Bratcher increased his meetings with them during mid-summer.4 The Respondent knew Bratcher visited with employees at the Chevron station. On one occasion, as Bratcher met with employees there, he gave Loya, whom he knew from the 2005 strike, a business card, asking him to help the workers if he could.
In early August, Bratcher approached Mr. Saffin at the Respondent’s
C. The Respondent’s August 24 Meeting with Field Foremen
On August 24, Pickens held a meeting with the Respondent’s seven field foremen at which Loya and Juan Carlos-Acosta translated.5 At the meeting, Pickens distributed and discussed written instructions entitled “Tips for Management” setting forth rules for management conduct during union organizing campaigns. The handout categorized prohibited conduct by the acronym TIPS: Threats, Intimidation, Promises, and Spying.
Foreman Salazar testified that Pickens told the foremen they were not talk to Bratcher or to take employees to talk to him.6 Foreman Salazar quoted Pickens, as saying:
I don’t want you guys to go to the Chevron at all there, and to bring the laborers. In fact, I just don’t want you to go to that Chevron gas station at all. Instead of going and gassing up in the morning, I would want you to go and gas up in the afternoon, so that in the morning, you don’t have to go to the gas station at all. Just go straight away and go to work.
Foreman Ordonez essentially corroborated Foreman Salazar’s testimony and further recalled that Pickens said the Respondent would no longer distribute paychecks in the morning in order to discourage crews from going to the Chevron station because Bratcher was there.
Pickens denied telling the foremen that they were not to go to Chevron station or threatening to impede their check-cashing there, and he denied telling the foremen to tell their crews they could not talk to Bratcher or go to the Chevron station or cash their checks there. According to Pickens, he told the foremen not to have any contact with union representatives, as they were members of company management, and not to threaten, intimidate, promise, or spy on their laborers. By Pickens’ account, when the foremen said it was difficult to avoid Bratcher, as he was regularly at the Chevron station, Pickens suggested they not go there.
Loya testified Pickens told the foremen at the August 24 meeting that while they were not to have any contact with union representatives, it did not matter if the laborers did.
Following the meeting, Foremen Salazar and Ordonez told their crews Pickens had forbade them to take the laborers to the Chevron station because he did not want them talking to Bratcher. The workers complained about Pickens’ interdiction, as it interfered with their ability to buy food and drink for the work day and, according to laborer Damion Garcia, they did not like being prohibited from speaking to whomever they wished. The employees discussed the possibility of striking.
Having considered all testimony regarding the August 24 meeting, I credit Foremen Salazar and Ordonez’s accounts of the meeting and the laborers’ accounts of what their foremen told them of it.7 The foremen and laborer witnesses essentially corroborated each other and were otherwise believable.8 On the other hand, I cannot find Loya to have reliably corroborated Pickens’ version of the meeting. Loya’s testimony was incongruously abbreviated, and he was so uneasy and muted in testifying as to prevent dependence on his account.
Thereafter, Foreman Salazar continued to take his crew to the Chevron station as before,9 but Foreman Ordonez only occasionally stopped there enroute to his crew’s work sites. On one or two occasions after the August 24 meeting, the Respondent handed out paychecks on Friday afternoons rather than mornings. According to Foreman Ordonez, on those occasions, Pickens said he was delaying the checks because he did not want to see the crews at the Chevron.
D. Alleged Surveillance at the Chevron Station
Early in the morning of August 29, Bratcher spoke with Foreman Guerrerro and his crew at the Chevron station while Guerrerro fueled his vehicle. As they talked, Pickens appeared at the Chevron station and told Guerrero that he needed to get to work.10
On August 31, Bratcher again went to the Chevron station, finding Foremen Salazar, Ordonez, Guerrerro, and Gastelum and their crews there. While Bratcher visited with Foreman Guerrerro and his crew, Pickens appeared. Three witnesses testified they saw what they believed to be Pickens taking a photograph of Bratcher as he talked to Foreman Guerrerro and his crew: (1) Bratcher testified that as he talked to the Guerrerro crew, he saw Pickens in front of or on the passenger side of his truck point a little camera toward them, and he saw a photographic flash; (2) Agustin Cuevas Ayala (employee Cuevas Ayala), a laborer on Foreman Salazar’s crew, testified he saw Pickens, in a photograph-taking posture, point his cell phone at Foreman Guerrerro who was talking with Bratcher but saw no flash; (3) Damion Garcia testified he saw Pickens seated behind his steering wheel pointing a cell phone toward Bratcher, as Bratcher talked with Foreman Guerrero and surrounding laborers. Pickens denied ever taking a picture of any employees at the Chevron station and posited that he may have been seen text messaging while there. I credit Pickens’ denial. Testimony regarding Pickens’ alleged photographing of employees was inconsistent, and there is no clear evidence Pickens’ action on which the testimony was based was not cell phone use unrelated to employees’ union activity.11
E.
The September 20 Strike and September 26
Unconditional Offer to Return to Work
Upon reporting to work the morning of Thursday, September 20, Foreman Salazar told some of the laborers that Loya had announced they would not receive their paychecks until Friday afternoon because the Respondent did not want them to go to the Chevron to cash them and see Bratcher. The employees asked for a meeting with Pickens. Pickens refused to meet with the laborers, but with Loya translating, Pickens met in his office with five of the field foremen, Salazar, Ordonez, Delgado, Guerrero, and Fernandez, for about an hour and a half. During the meeting, the foremen requested a written explanation of the company’s pay system for field employees, which Pickens said he could not immediately supply. They also asked the company to provide water and ice machines and reimburse them for their hand tools. Pickens said he would discuss their requests with the company owners. Agreeing to meet with them again after work, Pickens prevailed upon them to leave for their job sites in order to meet deadlines for scheduled construction inspections.
The five foremen left Pickens’ office, but only Foreman Guerrero went to work with his crew. The remaining foremen met with their crews, and Foreman Salazar told the laborers that Pickens had said he would not turn over the checks until Friday afternoon so that the workers would not “hook up” with Bratcher at the Chevron station.12 While the laborers were still talking with their foremen, Pickens came outside. Foremen Salazar, Ordonez, Delgado, and Fernandez informed Pickens that they were not going to work. With. Loya translating,. Pickens spoke to the foremen and their crews outside his office.13 The employees told Pickens they were unhappy about the lack of equipment, and the failure of the Respondent to furnish an ice machine and water.14 Pickens said he was not so stupid as to buy an ice machine. Employees asked if they “were allowed to go to the Chevron in order to cash [their] checks.” Pickens told them he would not give out their paychecks until Friday afternoon because he did not want them going to the Chevron station.15 The employees said they wanted to receive their paychecks in the morning, and if they did not, they would unload their tools. The laborers began unloading their tools from their foremen’s pickups, and Pickens told them that if they did, he would assume they were quitting or giving up their jobs, which the employees denied.16 The workers completed their unloading and left the Respondent’s facility, going directly to the Chevron station.
The foremen and laborers who had refused to work regrouped at the Chevron station and telephoned Bratcher, who arrived an hour or so later. Foremen Salazar and Ordonez told Bratcher the company had refused their demands for equipment, water, and ice, had declined to explain how their pay was calculated, had forbidden them to go to the Chevron to cash their checks, had changed Friday morning paycheck distribution to the afternoon, and had told them they would be quitting if they refused to work. The employees told Bratcher they wanted to strike. Bratcher told them that as the Respondent had violated federal law by telling them they couldn’t speak to him or go to the Chevron station and other possible unfair labor practices, they could convert the strike to an unfair labor practice strike.17 He helped the employees draw up a strike notice, which all signed, as follows:
WE HEREBY
NOTIFY POST TENSION OF
UNTIL FURTHER NOTICE
Agustin
Cuevas Ayala Crecensio Montoya Ramirez
Leobardo
Delgado Jesús Prudenciado
Alfonso
Arca Salazar Aureliano Zazueta
David
Amaya Ruiz Eduardo Velasco Hernandez
Gregorio
Quinoz Sanchez Juan Quiroz
Teodoro
Flores S Roberto Arce Salazar
Salvador
Quiroz Medina Jaime Fernández
Jesús Martine Juan Delgado
Damion
Garcia Brady Bratcher
Gerónimo Quiroz Ezequiel Ordonez
The group returned to the Respondent’s facility, and the workers presented the strike notice to Saffin.
After presenting the strike notice to the Respondent, the striking employees gathered at the BTOP offices and made picket signs reading “POST TENSION OF NEVADA UNFAIR.” The following day, on the morning of September 21, the striking employees appeared at the Respondent’s facility at about 5 a.m. and picketed the company with the above-described picket signs for approximately 3 hours and each workday thereafter through the morning of September 26.
During the period September 21 to September 26, the Respondent hired eight field employees, each of whom signed a form acknowledging employment as a permanent replacement for a striking employee. The Respondent hired one of the eight as a foreman with two of the new hires assigned to his crew. The other five new hires were dispersed between two existing crews.18
During the morning of September 26, the strikers, having agreed to end the strike, suspended picketing at Respondent’s facility and presented to Mr. Saffin and Hohman an unconditional offer to return to work with the following signatures:
We the striking workers of Post Tension of Nevada listed below
hereby agree to end our Unfair Labor Practice strike unconditionally this 26th
day of September, 2007 and to return to work immediately.
Arce-Salazar Roberto Prucenciano-Orenday Jesus
Arce-Salazar Alfonzo Quiros
Felix
Cuevas-Ayala
Agustin Quiroz-Merino Salvador
Delgado Juan
Quiroz-Sanchez Gregorio
Delgado Leobardo Ruiz-Quiroz
Leonides
Fernandez Jaime Velasco-Hernandez Eduardo
Flores-Sanchez Teodoro Zazueta-Rivera Aureliano
Garcia Damian Montoya-Ramirez Crecencio
Ordonez Ezequiel
Upon receiving the unconditional offer to return to work, Hohman told the workers they had been permanently replaced. On that or the next day, each employee signed a document entitled “Preferred Hire List” as follows:
Delgado Leobardo Crecencio Montoya Ramirez
Ezequiel
Ordonez G Gregorio Quiroz Sanchez
Damian
Garcia Salvador Quiroz Merino
Roberto
Arce Salazar Leonides Ruiz Quiroz
Jaime
Fernandez Eduardo Velasco Hernandez
Agustin
Cuevas Ayala Juan Delgado
Teodoro
Flores Sanchez Felix Quiroz
Alfonso
Arce Salazar Jesus Prucenciano Orenday
David
Amaya Ruis Jose O Sequera
Aureliano
Zazueta Rivera Jerónimo Quiroz
Following the Regional Office’s decision to issue complaint in this matter, the Respondent on December 11, mailed or hand delivered offers of reinstatement to certain of the employees named in complaint paragraph 5(f), stating in part: “Pursuant to your offer to return to work, Post Tension of Nevada is prepared to put you back to work in your position immediately.” Pursuant to the letters, the Respondent laid off all but one of the permanent replacements19 and returned the following strikers to work on the dates indicated:
Salvador
(Geronimo) Quiroz-Merino Date unknown
Eduardo
Velasco-Hernández December 12
Jesus
Martinez December 12
Teodoro
Flores-Sanchez December 13
Crecencio
Montoya-Ramirez December 17
As of the date of the hearing, the Respondent had not returned the following strikers to work:
David
Amaya-Ruiz Jesus Prudenciano-Orenday
Alfonzo
Arce-Salazar Felix Quiros
Agustin
Cuevas-Ayala Gregorio Quiroz-Sanchez
Leobardo
Delgado Aureliano Zazueta-Rivera
Damian
Garcia
F. Brady
Bratcher’s Application for Employment
with the Respondent
Although the Respondent hands out employment applications
to individuals who request them at the
On September 7, Bratcher went to the Respondent’s
discussion
A. Positions of the Parties
The General Counsel contends that when the Respondent’s field employees refused to work on September 20, they were engaged in an unfair labor practice strike protesting, in part, the Respondent’s unfair labor practices and that the Respondent terminated them for striking. When, on September 26, the striking employees made an unconditional offer to return to work, the Respondent unlawfully treated them as economic strikers. The General Counsel further contends that the Respondent unlawfully engaged in surveillance, refused to consider union organizer, Bratcher, for employment, and imposed more onerous terms and conditions of employment by prohibiting its employees from cashing checks at a facility close to the Respondent’s facility.
The Respondent argues that any management directions regarding
union activity were lawfully directed solely at its field foremen who are
statutory supervisors. The September 20
work stoppage was, in the Respondent’s view, a purely economic strike. Although the Respondent’s superintendent informed
the strikers that by refusing to work, he assumed they were quitting, that
statement, too, was directed only at field foremen, and he was justified in the
assumption. When the Respondent realized
the employees were striking, the company
lawfully responded to the strike by hiring permanent replacements and placing
the strikers’ names on a preferential hiring list. Although a downturn in business limited job
availability, the Respondent intended to reinstate strikers as openings occurred
in keeping with Board rules regarding economic strikers. Upon issuance of the Complaint on November
30, the Respondent, without admitting guilt and for the purpose of limiting
potential backpay, terminated the permanent replacements still employed and
offered reinstatement to six strikers, four of whom accepted. As for refusing to consider Bratcher for employment,
the Respondent contends that, given its hiring procedures, it would not have hired or considered
Bratcher for hire even in the absence of his union affiliation.
B. Alleged Independent Violations of 8(a)(1)
1. Surveillance
The complaint alleges that on August 29 and 31, Pickens engaged
in surveillance of employees’ union activities at the Chevron station. In the early morning of August 29, a number
of the Respondent’s field employees along with Foreman Guererro were engaged in
the protected activity of speaking with union representative, Bratcher, about
employment concerns. As they talked, Pickens
appeared and told Foreman Guerrero that he needed to get to work. I have credited Pickens’ testimony that he
regularly purchased food items at the Chevron station, and there is no evidence
that his appearance in that public place at that time was for the purpose of
observing the field employees’ interaction with Bratcher. Mere supervisory observation of “open, public
union activity on or near [an employer’s] property does not constitute unlawful
surveillance.” Town & Country Supermarkets, 340 NLRB 1410 (2004); Fred Wallace & Son, 331 NLRB 914 (2000); see also Consolidated Biscuit Co., 346 NLRB 1175,
1176 (2006). In these circumstances, Pickens’
presence at the Chevron station cannot be deemed surveillance even if he
observed union activity while there.
The same analysis applies to Pickens’ August 31 visit to the Chevron station. I have found the evidence does not establish that Pickens went to the Chevron station on that date for the purpose of observing employees engaged in protected activity or that he photographed any of his employees while there. In the absence of such evidence, his mere observation of employees’ open, public union activity does not constitute unlawful surveillance.
2. Promulgation and maintenance of overly broad
and discriminatory rules
The complaint alleges that during early September the Respondent orally promulgated and maintained overly broad and discriminatory rules by prohibiting employees from talking to any union representative and/or assembling or cashing their paychecks at a facility (the Chevron station) where they also engaged in protected, concerted activities.
I have credited testimony that Pickens told the field
foremen not to take the laborers to the Chevron station where they were likely
to meet Bratcher and that he told them the Respondent would no longer distribute
paychecks on Friday mornings to further discourage employees’ interaction with
the
The evidence establishes that the Respondent’s foremen had
a longstanding, company-accepted practice of transporting the company’s field
employees to the local Chevron station where they purchased food and beverages
before proceeding to the worksites.23 Company acceptance of the practice changed
only after Bratcher began meeting employees there to garner support for the
In pertinent application of Section 7 of the Act, the Respondent’s field employees had the statutory right to meet with a union organizer in the course of their regular stops at the Chevron station.24 Section 8(a)(1) of the Act provides: “It shall be an unfair labor practice for an employer (1) to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7.”
The Respondent argues that even assuming Pickens issued a
directive not to go to the Chevron station that included or impacted laborers
as well as supervisors, his intention was only to lawfully curtail supervisory
involvement with the
The Respondent further argues that even assuming Pickens
told the field foremen not to take the laborers to a location where they could
meet up with union representatives, such an instruction was lawful. The
Respondent asserts that to do otherwise would violate Section 8(a)(2) of the
Act by contributing support to a labor organization. It is true the situation presented a dilemma
for the Respondent. An unquestionable
conflict existed between the Respondent’s right and even obligation to curtail
its supervisors’ involvement with or encouragement of the
The Respondent’s longstanding practice was for its field foremen to take their crews of laborers to the Chevron station nearly every working morning. In the summer of 2007, both foremen and laborers began meeting a union representative there. Although the foremen’s interaction with the union representative was unprotected, the laborers’ interaction was protected. When the Respondent ordered the foremen to discontinue the morning Chevron-station stops, their compliance with the order would necessarily have interfered with and restrained the laborers in their protected activity of meeting with a union representative. While the Respondent’s prohibition of foremen union activity was lawful, its chosen effectuation of the prohibition—banning the customary morning Chevron-station stops—was oversweeping and inescapably interfered with employee protected activity, regardless of the Respondent’s motive.26 The Respondent’s conduct meets the Board’s objective 8(a)(1) test of tending to interfere with its employees’ free exercise of Section 7 rights.
The Respondent makes a tacit de minimis argument, contending
that Pickens’ alleged prohibition against employees congregating at the Chevron
station “was not much of a directive” since it was generally disregarded. However, the ineffectiveness of Pickens’ prohibition is irrelevant to the
objective standard the Board applies to 8(a)(1) allegations. See Fieldcrest
Cannon, Inc., 318 NLRB 470, 490 (1995).
The foremen’s communication
of the prohibition had an objectively reasonable tendency to intimidate and
thus interfered with, restrained, or coerced the
field employees in the exercise of rights guaranteed in Section 7. It thereby violated Section 8(a)(1) of the
Act.
3. Pickens’ September 20 threat of discharge
There is no evidence the field employees’ cessation of
work on September 20 was other than a work stoppage for “mutual aid or
protection” protected by Section 7 of the Act.
An employer violates Section 8(a)(1) of the Act by discharging employees
who engage in a protected work stoppage or strike or threaten to do so. NLRB v.
Washington Aluminum Co., 370
C. Alleged Violations of Section 8(a)(3) and (1) of the Act
1. Alleged imposition of more onerous terms and
conditions of employment
The complaint alleges the Respondent violated Section 8(a)(3) and (1) of the Act in the first week of September by “impos[ing] more onerous terms and conditions of employment by prohibiting its employees from cashing checks” at the Chevron station.
During the relevant period, it was routine for some field employees to cash their paychecks at the Chevron station during the crews’ regular Friday-morning stops there. After Bratcher began meeting field employees during the morning stops, the Respondent threatened to delay distribution of Friday paychecks with the stated purpose of discouraging the meetings. In his posthearing brief, Counsel for the General Counsel argues that the Respondent’s rule prohibiting employees from cashing their paychecks at the Chevron station adversely affected its employees’ working conditions by interfering with a “fast and easy way for employees to convert paychecks to dollars” in violation of Section 8(a)(3) of the Act. There is no question that delayed distribution of paychecks from Friday mornings to Friday afternoons inconvenienced some employees, and it is clear the Respondent advertised the delay as a maneuver calculated to stymie employees’ union activities. However, the evidence does not establish an 8(a)(3) violation for several reasons.
First, the evidence does not show that the Respondent did, in fact, change its paycheck distribution practice. Credible evidence was adduced that Pickens and Loya told employees they would change the distribution practice to prevent employee interaction with Bratcher. There is also some evidence, albeit neither consistent nor unambiguous, that during the relevant period the Respondent occasionally failed to distribute paychecks on Friday mornings. But there is no definite evidence of an actual change. During the relevant period, the Respondent continued, at least some of the time, to distribute paychecks on Friday mornings, and there is no evidence that on those Friday mornings when the Respondent delayed the paychecks, the delay was not due to the same nondiscriminatory factors that had delayed distribution in the past. There is insufficient evidence, therefore, to support the allegation that the Respondent violated Section 8(a)(3) of the Act in changing its paycheck distribution policy.
Second, even assuming the Respondent did change its paycheck distribution policy so as to curtail Friday morning distribution, there is no evidence the Respondent in any way prohibited employees from cashing their paychecks at the Chevron station. Employees were free to cash paychecks there at any time they chose after receipt of the paycheck. The complaint allegation as stated is unproven.
Third, the General Counsel has not shown that Friday morning
paycheck cashing at the Chevron station was a term and condition of employment,
discriminatory preclusion of which would violate 8(a)(3). The convenience of Friday-morning check
cashing was not specific or even relevant to the field employees’ employment
relationship with the Respondent, and it did not impact their working conditions. The Respondent changed none of the employees’
basic terms or working conditions, and the Board does not consider mere
employee convenience to be
an aspect of an employment relationship. See Success Village Apartments, Inc, 350 NLRB No. 72, slip
op. 2 (2007).
Even though the Respondent may not have violated Section 8(a)(3) by altering its paycheck distribution timing, when Pickens and Loya ascribed an unlawful motive to delayed paychecks they violated Section 8(a)(1) of the Act. Informing employees that an employer’s conduct is discriminatorily motivated coerces employees and independently violates the Act even if the conduct has not actually occurred or is not unlawful. Success Village Apartments, Inc, supra; K-Mart Corp., 336 NLRB 455 (2001); Owens Corning Fiberglass Co., 236 NLRB 479, 480 (1978). Accordingly, I find that by informing field employees their paychecks were delayed in order to interfere with their engaging in protected union activities, the Respondent violated Section 8(a)(1) of the Act.
2. Alleged discharge of striking employees
As detailed above, on September 20, Pickens unlawfully threatened field employees with termination if they participated in a strike. Paragraph 5(f) of the complaint alleges that the Respondent thereafter discharged the striking employees. There is, however, no evidence the Respondent took any action reflecting an intention to discharge the strikers. Rather, the evidence establishes that the Respondent consistently treated the employees as economic strikers until issuance of the Complaint, at which time the Respondent applied reinstatement rights due to unfair labor practice strikers.28 I shall, therefore, dismiss this allegation of the complaint.
3. The unfair labor practice strike
The General Counsel asserts that when the field employees ceased work on September 20 and went on strike, they were engaged in an unfair labor practice strike, while the Respondent contends it was an economic strike. It is true, as the Respondent argues, that a number of economic considerations (e.g. dissatisfaction with the Respondent’s pay calculations, failure of the Respondent to furnish tools and water and ice) were motivating factors in the strike. It is also true that prior to commencement of the strike, the Respondent committed serious unfair labor practices by prohibiting and discouraging employees from congregating at a location where they met with a union representative and by threatening them with discharge if they went on strike. The question is whether the unfair labor practices contributed to causation of the strike.
In Golden Stevedoring Co., 335 NLRB 410, 411 (2001) (citations omitted), the Board explained:
It is well established that a work stoppage is considered
an unfair labor practice strike if it is motivated, at least in part, by the
employer's unfair labor practices, even if economic reasons for the strike were
more important than the unfair labor practice activity. It is not sufficient, however, merely to show that the unfair labor practices
preceded the strike. Rather, there must be a causal connection between the two
events.
In determining whether a causal connection between the strike and preceding unfair labor practices exists, the Board looks to the strikers’ state of mind. See C-Line Express, 292 NLRB 638, 639 (1989) (lack of evidence strikers motivated to prolong strike by coercive employer statements on the picket line). When it is reasonable to infer from the record that an employer's unlawful conduct played a part in the decision of employees to strike, the strike is an unfair labor practice strike. Child Development Council of Northeastern Pennsylvania, 316 NLRB 1145 fn. 5 (1995), citing NLRB v. Cast Optics Corp. 458 F.2d 398, 407 (3d Cir. 1972), cert. denied 419 U.S. 850 (1972) (as long as an unfair labor practice has “anything to do with” causing the strike, it will be considered an unfair labor practice strike). The burden in on the employer to show that the strike would have occurred even if [it] had not committed unfair labor practices. Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814, 820 (6th Cir. 1975).
Viewing the record as a whole, the evidence supports a finding that the Respondent’s unfair labor practices contributed to the September 20 strike and/or thereafter prolonged it. Although the field foremen focused on economic issues in their meetings with Pickens on September 20, several field employees testified credibly of their concurrent displeasure at being restricted from the Chevron station, at being told to whom they could talk, and at being told their paychecks would be delayed to prevent them from meeting with Bratcher, all of which constitute unfair labor practices. The field employees were also unhappy about Pickens’ unlawful threat that their work stoppage was tantamount to quitting, which information they related to Bratcher when he met with them a short time after they ceased work.
Citing C-Line Express, supra, the Respondent contends that Bratcher conceded the strike was economic when he told employees it could be converted to an unfair labor practice strike. The Respondent further argues that if the Respondent committed any unfair labor practices, it did so prior to the employees’ economically motivated walkout and that past unfair labor practices cannot be utilized to alter the strike category. Even assuming the Respondent asserts a colorable defense, its argument gives undue weight to Bratcher’s apparent perception that the strike needed to be “converted.” When employees met with Bratcher very shortly after unloading their tools and leaving work, they detailed their grievances with the Respondent, including the Respondent’s prohibition against going to the Chevron station, its announced change in the paycheck distribution schedule, and Pickens’ parting admonition that they would be quitting if they refused to work, all of which are unfair labor practices. These unfair labor practices were contemporaneous with the strike. Since employees bore the unlawful conduct in mind as they contemplated striking, the conduct, at least in part, catalyzed the strike. Bratcher’s reference to strike conversion neither vitiates nor alters the employees’ motivation. Moreover, C-Line Express is distinguishable from the instant situation. In that case, the Board found no evidence that strikers were motivated to prolong their strike by coercive statements to several strikers or that strikers were even aware of an unlawful refusal to furnish information. In short, no evidence showed the C-Line Express strike was motivated by anything other than inability to reach a bargaining agreement. That is not the case here. While employee witness recollections differed in detailing strike discussions, their credible testimony as a whole establishes that the employees considered and were provoked by specific unfair labor practices in deciding to strike, and the Respondent has not met its burden to show the strike would have occurred even if it had not committed unfair labor practices. Accordingly, I conclude the September 20 strike was an unfair labor practice strike from its inception.
4. Failure to reinstate unfair labor practice
strikers
On September 26, the strikers presented an unconditional offer to return to work signed by each striker to the Respondent. Upon its receipt, Hohman told the workers they had all been permanently replaced and directed each to sign a preferential hiring list. No striker was returned to work until December when the Respondent recalled five strikers.
Unlike the obligation of an employer to an economic striker, upon an unconditional offer to return to work, an employer m