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.
Cardi Corporation and Carpenters Local No. 94, New England Regional Council of
Carpenters a/w United Brotherhood of Carpenters and Joiners of
February 25, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On June 5, 2008, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions and a supporting brief.[1] The General Counsel and the Charging Party each filed an answering brief. Additionally, the General Counsel filed a limited cross-exception and a supporting brief.[2]
The National Labor Relations Board[3] has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[4] and conclusions, as modified below, and to adopt the judge’s recommended Order as modified and set forth in full below.
We agree with the judge that the Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally implementing a rule requiring that bargaining unit employees possess a valid driver’s license as a condition of employment,[5] and by enforcing its unlawful driver’s license requirement against Eddie Mejia.[6] We shall modify the judge’s conclusions of law to include a reference to the unlawful enforcement of the rule against Mejia.
Amended Conclusions of Law
Substitute the following for Conclusions of Law paragraph 3:
“3. The Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally implementing a rule without notice to or bargaining with the Union requiring bargaining unit employees to possess a valid driver’s license in order to be employed at the Respondent, and by enforcing that rule against Eddie Mejia.”
Amended Remedy
Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
As we have adopted the judge’s finding that the Respondent unlawfully implemented a rule requiring that bargaining unit employees possess a valid driver’s license as a condition of employment, we shall order the Respondent to rescind the rule.
To remedy the Respondent’s unlawful enforcement of the rule against Eddie Mejia on November 13, 2006, we shall order it to place Mejia in the position he would have been in absent enforcement of the rule, including immediate reinstatement if, absent the enforcement of the driver’s license requirement, he would have been reinstated by the Respondent at any time on or after November 13, 2006.[7] We shall also order the Respondent to make Mejia whole for any loss of earnings and other benefits suffered as a result of the enforcement of the rule.[8]
ORDER
The National Labor Relations Board orders that the
Respondent, Cardi Corporation,
1. Cease and desist from
(a) Unilaterally requiring that bargaining unit employees possess a valid driver’s license as a condition of employment without first giving the Union prior notice and an opportunity to bargain over the requirement.
(b) Enforcing its unlawful driver’s license requirement against Eddie Mejia or any other bargaining unit employee.
(c) 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) Rescind its requirement that bargaining unit employees possess a valid driver’s license as a condition of employment.
(b) Place Eddie Mejia in the position he would have been in absent the enforcement of the unlawful driver’s license requirement against him on November 13, 2006, including, if appropriate, reinstatement, in the manner set forth in the amended remedy section of this Decision.
(c) Make Eddie Mejia whole for any loss of earnings and other benefits suffered as a result of the enforcement of the unlawful driver’s license requirement, in the manner set forth in the amended remedy section of this Decision.
(d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful enforcement of the driver’s license requirement against Eddie Mejia, and within 3 days thereafter notify Eddie Mejia in writing that this has been done and that this unlawful action will not be used against him in any way.
(e) Within 14 days after service by the Region, post at
its facility in
(f) 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,
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
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 unilaterally require that bargaining unit employees possess a valid driver’s license as a condition of employment without first giving the Union prior notice and an opportunity to bargain over the requirement.
We will not enforce our unlawful driver’s license requirement against Eddie Mejia or any other bargaining unit employee.
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.
We will rescind the requirement that bargaining unit employees possess a valid driver’s license as a condition of employment.
We will place Eddie Mejia in the position he would have been in absent the enforcement of the unlawful driver’s license requirement against him on November 13, 2006, including, if appropriate, reinstatement.
We will make Eddie Mejia whole for any loss of earnings and other benefits suffered as a result of the enforcement of the unlawful driver’s license requirement.
We will, within 14 days from the date of the Board’s order, remove from our files any reference to the unlawful enforcement of the driver’s license requirement against Eddie Mejia, and we will, within 3 days thereafter, notify him in writing that this has been done and that this unlawful action will not be used against him in any way.
Cardi Corporation
Karen
E. Hickey, Esq.,
for the General Counsel.
John
D. O’Reilly III, Esq., of
Aaron
D. Krakow, Esq.,
of
DECISION
Statement of the Case
Bruce D.
Rosenstein, Administrative Law Judge. This case was tried before
me on April 1, 2008, in
Issues
The complaint alleges that the Respondent has been failing and refusing to bargain collectively and in good faith with the Union in violation of Section 8(a)(1) and (5) of the Act by unilaterally implementing a rule requiring bargaining unit employees to possess a valid drivers license in order to work on one of its jobs and subsequently enforcing the rule by refusing to re-employ one of its employees.
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respondent, I make the following
Findings of Fact
i. jurisdiction
The Respondent is a corporation engaged in highway, concrete,
and asphalt construction in the building and construction industry at its
facility in
ii. alleged unfair labor practices
A. Background
The Respondent is an employer-member of the Construction
Industries of Rhode Island, an Association composed of various employers
engaged in the construction industry, one purpose of which is to represent its
employer-members in negotiating and administering collective-bargaining
agreements with various labor organizations, including the
B. The 8(a)(1) and (5) Violations
1. The facts
In late 2005, the Respondent adopted and implemented a
rule requiring bargaining unit employees’ to possess a valid drivers license in
order to work on its various construction jobs.
The Respondent admits that on November 13, 2006, it refused to
consider Eddie Mejia for reemployment, due to his acknowledged lack of a valid
driver’s license. The Respondent further
admits that it adopted and implemented its policy without prior notice or
bargaining with the
David Palmisciano, the
Palmisciano further testified that the first time the
ployees represented by labor
organizations including the Charging Party.
Kunz and Cardi apprised Palmisciano that it did periodic
checks to discern whether bargaining unit employees had valid driver licenses. These checks were made on the jobsite when
employees received their paychecks or when employees were rehired. Palmisciano testified that he checked with
two of his job stewards, James Mulcahey and Guy Alves, who informed him that
they were not aware of any such policy and that no respondent supervisor had
ever asked them whether they possessed valid driver licenses. Likewise, both of these stewards told
Palmisciano that they never received any notice in their paychecks about the
requirement for having a valid driver’s license nor did other employees on the
job with whom they worked ever inform them that Respondent’s supervisors asked
about whether they had valid driver licenses.2
By letter dated November 21, 2006, Palmisciano wrote Cardi
summarizing the
Mejia testified that he has been a member of the
In November 2002, Mejia suffered a work-related injury. He collected workmen’s compensation until he
was able to return to light duty. When
Mejia returned to work he was not asked if he held a valid driver’s license. Mejia was laid off in May 2003 and went on workmen’s
compensation again as his hip injury worsened.
After participating in intensive physical therapy sessions, Mejia returned
to work at the Respondent in May 2004 performing light duty, but he was not
asked whether he possessed a valid driver’s license.4
Mejia worked on light duty for approximately 8 months but found that his
injury worsened and after further medical evaluation and a MRI, underwent hip
replacement surgery in November 2005.
After a lengthy convalescent period, during which he was on workmen’s
compensation, the doctors cleared him to return to full-time status. Accordingly, Mejia telephoned Kunz in November
2006 to apprise him of his updated medical status and was told to come in to
the office in order to take a drug test and fill out employment forms. While Mejia provided Kunz with a State ID
card and his social security card, Kunz was aware from the prior workmen’s
compensation proceeding that Mejia did not possess a valid driver’s
license. Kunz informed Mejia, during the
meeting, that the owners required employees to have a valid driver’s license to
work at the Respondent. Mejia replied,
that he worked before without a driver’s license and had never been asked about
or required to have a valid driver’s license as a condition of employment. Kunz promised to look into the matter and
several days later informed Mejia that the Respondent’s policy was that a valid
driver’s license was required to work at the Respondent and presently there was
no work available.5
Subsequent to meeting with Kunz, Mejia met with Palmisciano
to inform him about the new driver’s license policy. Thereafter, at the urging of Palmisciano, he
applied for and obtained his drivers permit.
In February 2007, he received his permanent driver’s license.
During the period between June 2002 and November 2006, when
Mejia was employed at the Respondent, he never received any written or oral
notification that his employment was terminated.
2. Position of the parties
The General Counsel and the Charging Party argue that the
Respondent’s rule or policy requiring bargaining unit employees to possess a
valid driver’s license was implemented without the Union’s consent, without
notice to the Union, and without affording the
The Respondent first argues that Mejia was an applicant for
employment when he met with Kunz in November 2006, and not an employee within
the meaning of Section 2(3) of the Act.
Accordingly, they opine that in the absence of a reasonable expectation
of employment or re-employment there is no obligation to negotiate or make him
whole.
Second, the Respondent asserts that since the possession of
a valid driver’s license is a necessary requirement for employment on highway
construction projects where employees are frequently required to drive their
own vehicles, as well as company vehicles on company business, the possession
of a valid driver’s license is not a mandatory subject for the purpose of collective
bargaining.
Lastly, the Respondent contends that the underlying charge
was not filed within the period of time set forth in Section 10(b) of the
Act.
3. Legal principles
An employer violates Section 8(a)(1) and (5) of the Act if
it makes a unilateral change in wages, hours, or other terms and conditions of
employment without first giving the Union notice and an opportunity to
bargain. See NLRB v. Katz, 369
An employer may also avoid a finding of violation if it
can show that the union waived bargaining regarding the subjects of the
unilateral changes. A waiver of
bargaining rights by a union is not to be lightly inferred, but rather must be
demonstrated by the union’s clear and explicit expression. Beverly Health
& Rehabilitation Services, 335 NLRB 636 (2001);
Section 10(b) is a statute of limitations and is not
jurisdictional in nature. The Respondent
has the burden of showing that the
4. Analysis
The Respondent’s defenses as alleged above have not been
sustained by record testimony. In this
regard, the Respondent did not establish that the practice in the industry is
to require journeymen carpenters to possess a valid driver’s license when
working on jobsites. While the
Respondent did establish that carpenter foremen are often requested to drive
company vehicles on the jobsite or on occasions transport or pick up supplies
from off-site locations to the job, it did not conclusively establish that
journeymen carpenters are required to perform these responsibilities. Indeed, Kunz was only able to point to one
journeyman carpenter, Chris Hartman, who he observed driving a company vehicle
on the jobsite. He could not articulate
how often this occurred or how many times Hartman drove the company vehicle
while working for the Respondent.6 While Kunz opined that he observed other
journeymen carpenters drive company vehicles, when pressed, he could not
identify any other individuals. Kunz
testimony was contrary to the two job stewards who credibly testified that
carpenter foreman rather then journeymen carpenters routinely drove company
vehicles on the jobsites. Nor was the
Respondent able to establish that employees were routinely asked whether they
possessed valid driver’s licenses either by written communication or after
employees returned to work from seasonal layoffs. Both union stewards credibly testified that they
had never been asked whether they held valid driver’s licenses after returning
from layoff’s or at any time by their supervisors.
As it concerns the Respondent’s argument that the
While the record confirms that the Respondent terminated several
employees who did not possess valid driver’s licenses, these actions took place
based on reasonable suspicion of a specific problem involving those individuals. For example, when the Respondent became aware
of a traffic-related offense or DWI infraction that it learned about in the
newspaper or a complaint from an incumbent employee, it took the action. It is noted that two of the employees that
were terminated were removed in early 2007, a period of time after Mejia was
refused full-time employment because of not possessing a valid driver’s license. I also note that none of the employees
terminated by the Respondent for lack of a driver’s license were
carpenters.
I also reject Respondent’s argument that Mejia was an applicant
and not an employee when he contacted Kunz to seek to return to full-time employment
after being approved to do so by his physician.7 The Board has held that an employee on sick
or maternity leave is presumed to continue in an employment status unless and
until the presumption is rebutted by an affirmative showing that the employee
has been discharged or has resigned. Red Arrow Freight Lines, 278 NLRB 965
(1986). Thus, the Respondent’s argument
that Mejia has no “reasonable expectation of employment” and is not an employee
within the meaning of Section 2(3) of the Act has not been established. In this regard, such a test applies to employees
that have been laid off which is not the case herein. Indeed, the past practice of the Respondent
is normally to retain employee’s who have suffered work-related injuries
returning them first to light duty when medically cleared, and then to
reinstate them to full-time employment.
The record confirms that Mejia was returned to light duty on at least
two occasions in between his recuperative period while on workmen’s
compensation. Therefore, the employment
relationship was uninterrupted and he continued to maintain his employee status
during the period between November 2005 and November 2006, when he regularly
received checks under the Respondent’s workmen’s compensation insurance policy. J. P.
Stevens & Co., 247 NLRB 420, 482 (1980) (individuals on leave and
receiving workers’ compensation are considered employees). Lastly, and most significant, the Respondent
never orally or in writing terminated Mejia’s employment relationship during
the entire period of his tenure and in November 2006, he was put on the payroll
and paid for hours worked, conclusive evidence that he was an employee. Thorn
Americas, Inc., 314 NLRB 943 (1994).
Additionally, the Respondent did not meet its burden that
the underlying unfair labor practice charge was untimely filed. The evidence presented conclusively
establishes that the
For all of the above reasons, and particularly noting that
the Respondent admits that it did not notify the Union in advance or engage in
negotiations over the driver’s license requirement, I find that the Respondent
has violated Section 8(a)(1) and (5) of the Act by its unilateral action.
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
3. The Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally implementing a rule without notice to or bargaining with
the Union requiring bargaining unit employees to possess a valid driver’s license
in order to be employed at the Respondent.
Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies of the Act. In
particular, I recommend that the Respondent be ordered to restore, for unit
employees, the terms and conditions that existed before the 2005 unilateral
changes to its driver license policy, and to maintain those terms in effect
until the parties have bargained to agreement or a valid impasse, or the
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended9
ORDER
The Respondent, Cardi Corporation,
1. Cease and desist from
(a) Making unilateral changes that require bargaining unit
journeymen carpenter employees to possess a valid driver’s license as a
condition of continued employment.
(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) Reinstate Eddie Mejia to his former position or a similarly
situated position and make him whole for pay and benefits that existed prior to
the unlawful unilateral change in the driver’s license policy that was implemented
in 2005, and maintain those terms in effect until the parties have bargained to
a new agreement or a valid impasse, or the Union has agreed to changes, as
provided in the remedy section of this decision.
(b) 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 backpay due under the terms
of this Order.
(c) Within 14 days after service by the Region, post at
its facility in
(d) 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.
It is further ordered that
the complaint is dismissed insofar as it alleges violations of the Act not
specifically found.
Dated,
APPENDIX
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 make
unilateral changes in mandatory subjects of bargaining without first notifying
the
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.
We will make
Eddie Mejia whole for any loss of pay that he suffered as a result of our
unilateral change in implementing a rule that required journeymen carpenter
employees to possess a valid driver’s license as a condition of continued employment,
and we will rescind the rule and
maintain those terms in effect until the parties bargain to a new agreement or
a valid impasse, or the Union agrees to changes.
We will make
Eddie Mejia whole by reimbursing him, with interest, for the loss of benefits
and additional expenses that he suffered as a result of the unilateral changes
in the driver’s license policy that we
unlawfully implemented in 2005.
We will offer
Eddie Mejia immediate and full reinstatement
to his former position without
prejudice to his seniority or other rights and privileges.
Cardi Corporation