Carey Salt, Inc., a subsidiary of Compass Minerals International, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 2014

360 N.L.R.B. 201 (N.L.R.B. 2014)

CAREY SALT CO. 201
360 NLRB No. 38
Carey Salt Company, a Subsidiary of Compass Min-
erals International, Inc. and United Steel, Paper
and Forestry, Rubber, Manufacturing, Energy
Allied Industrial and Service Workers Interna-
tional Union and Local Union 14425. Cases 15–
CA–020035 and 15–CA–061694
February 6, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On May 16, 2012, Administrative Law Judge Keltner
W. Locke issued the attached decision.1 The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief and cross-exceptions
with a supporting brief. The Charging Party filed a brief
in opposition to the Respondent’s exceptions, as well as
cross-exceptions with a supporting brief.
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 exceptions2 and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions,4 to

1 The Board issued a decision in a prior case filed against the Re-
spondent, 358 NLRB 1142 (2012), which was recently enforced in
substantial part, Carey Salt Co. v. NLRB, 736 F.3d 405 (5th Cir. 2013).
2 The General Counsel filed a motion to strike the Respondent’s ex-
ceptions in their entirety based on their alleged noncompliance with
Sec. 102.46 of the Board’s Rules and Regulations and/or their being
immaterial and moot. We find that the exceptions are in substantial
compliance with the requirements of that section and that they are
material and not moot, and, therefore, we deny the General Counsel’s
motion.
3 The judge’s decision incorrectly reflects that a meeting between
the Respondent’s representatives and union officers took place on
March 10, 2011; the record establishes that the meeting occurred on
March 14, 2011. This error does not affect our decision.
4 We affirm the judge’s findings that the Respondent violated Sec.
8(a)(5) by delaying until May 23, 2011, a 2.5-percent wage increase
that the Respondent established as a term and condition of employment.
However, in agreeing with the judge, we find no need to rely solely on
the Respondent’s unlawful implementation of a final 3-year contract
proposal on March 31, 2010, which provided for the March 25, 2011
wage increase. We rely instead on all surrounding circumstances fully
set forth in the judge’s decision, most notably including the Respond-
ent’s early March 2011 notice to employees that it was planning to
make this increase on March 25. We likewise rely on all surrounding
circumstances in affirming the judge’s finding that the Respondent’s
March 31, 2011 email to the Union violated Sec. 8(a)(5) by precondi-
tioning further bargaining about a wage increase on the Union’s per-
suading the Board to withdraw a petition for injunctive relief against
the Respondent.
Member Johnson would rely only on the language of the early
March 2011 notice to employees to find that the March 25, 2011 wage
increase was an expected term and condition of employment that the
Respondent violated Sec. 8(a)(5) in delaying that increase. However,
he disagrees with his colleagues and the judge that, giving due consid-
eration to all surrounding circumstances, the March 31 email to the
amend his remedy, and to adopt the recommended Order
as modified and set forth in full below.
AMENDED REMEDY
Having adopted the judge’s finding that the Respond-
ent violated Section 8(a)(4) and (5) of the Act by delay-
ing the 2.5-percent wage increase to its employees from
March 25 to May 22, we shall order that the Respondent
make all employees in the bargaining unit whole for any
loss of earnings or other benefits suffered as a result of
the discrimination against them. The make-whole reme-
dy shall be computed in accordance with Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010). In addition, we shall order the Respondent to
compensate affected employees for the adverse tax con-
sequences, if any, of receiving lump-sum backpay
awards and to file a report with the Social Security Ad-
ministration allocating the backpay awards to the appro-
priate calendar quarters for each employee. Further, hav-
ing found that the Respondent violated Section 8(a)(5) by
delaying the wage increase without affording the Union
prior notice and an opportunity to engage in bargaining
over the decision and its effects, we shall amend the or-
der to include affirmative language requiring such notice
and bargaining prior to implementing any unilateral
changes.
The General Counsel cross-excepts to the judge’s fail-
ure to provide for the reading of the notice to employees
as a remedy. We agree that a public reading of the notice

Union unlawfully preconditioned bargaining on withdrawal of the
injunction petition. In his view, the email was a lawful expression of a
bargaining position rather than a demand that the Union secure the
withdrawal before any bargaining could take place.
We also affirm the judge’s finding that the wage increase delay vio-
lated Sec. 8(a)(4) because the Respondent has effectively conceded that
it delayed the wage increase because of injunction litigation ensuing
from the statutorily protected filing of unfair labor practice charges.
However, we do not rely on the judge’s alternative analysis of this issue
under the burden-shifting motivational test in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). As the judge acknowledged, citing e.g., Phoenix Transit
System, 337 NLRB 510 (2002), when an employer’s admitted reason
for an adverse employment action is that employees engaged in activity
protected by the Act, the Wright Line test is neither necessary nor ap-
propriate.
We agree with the judge that it is unnecessary to find that the delay
also violated Sec. 8(a)(3), because the backpay remedy for such a viola-
tion would be the same as for the 8(a)(4) and (5) violations. In so find-
ing, however, we do not rely on the judge’s statements suggesting that
the Respondent did not act with a motive proscribed by Sec. 8(a)(3).
Nor do we find any need to rely on the judge’s statement suggesting
that employees must be “entitled” to receive a wage increase on a cer-
tain date in order to find that the discriminatory failure to give an in-
crease on that date is an adverse employment action.
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is appropriate here. The Respondent’s violations of the
Act are sufficiently serious and widespread that the read-
ing of the notice is necessary to enable employees to ex-
ercise their Section 7 rights free of coercion. See Jason
Lopez’ Plant Earth Landscape, Inc., 358 NLRB 383,
383–384 (2012); HTH Corp. 356 NLRB 1397, 1404
(2011), enfd. 693 F.3d 1051 (9th Cir. 2012); Homer D.
Bronson Co., 349 NLRB 512, 515–516 (2007), enfd.
mem. 273 Fed. Appx. 32 (2d Cir. 2008).5 Therefore, we
will require that the attached notice be read publicly by
the Respondent’s representative or by a Board agent in
the Respondent’s representative’s presence.6
ORDER
The Respondent, Carey Salt Company, a Subsidiary of
Compass Minerals International, Inc., Cote Blanche,
Louisiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees that it would withhold a
scheduled wage increase until it successfully resisted a
petition for injunctive relief which the Board had filed
against it in connection with the Union’s unfair labor
practice charges.
(b) Delaying or withholding a scheduled wage in-
crease, or otherwise discriminating against its employees,
because they, or the Union on their behalf, filed unfair
labor practice charges with the Board, or did not per-
suade the Board to withdraw its petition for injunctive
relief or take other action sought by the Respondent.
(c) Failing and refusing to bargain in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit, by de-
laying implementation of a scheduled wage increase or
otherwise changing any term or condition of employment
which is a mandatory subject of collective bargaining.
(d) Failing and refusing to bargain in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit by con-
ditioning negotiations concerning any mandatory subject
of bargaining upon the Union persuading the Board to
discontinue legal proceedings filed against it.

5 Member Johnson notes that the public reading of the notice has
most often been described in Board precedent as a “special remedy”—
see, e.g., Homer D. Bronson Co., supra at 515—and is undisputedly not
a traditional remedy routinely provided for violations of the Act. How-
ever, he agrees with his colleagues that such a remedy is warranted
here, especially in light of the Respondent’s unlawful recidivism.
6 In addition to the remedial revisions discussed above, we shall
modify the judge’s recommended Order and notice to conform to the
violations found and the Board’s standard remedial language for those
violations.
(e) In any like or related manner interfering with, re-
straining, 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) Make all employees of the bargaining unit 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.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain in good faith
with the Union as the exclusive collective-bargaining
representative of employees in the following bargaining
unit:
All production and maintenance employees, including
storeroom clerks, truck drivers, and dock employees
employed at the Cote Blanche Mine.
(c) Within 14 days after service by the Region, post at
its Cote Blanche, Louisiana mine and facilities, copies of
the attached notice marked “Appendix.”7 Copies of the
notice, on forms provided by the Regional Director for
Region 15, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive 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 cov-
ered by any other material. In addition to physical post-
ing of paper notices, the Respondent shall transmit a
copy of the notice by email to each bargaining unit em-
ployee. 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 Re-
spondent 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 March 10, 2011.
(d) Within 14 days of the date of this order, the Re-
spondent will hold a meeting or meetings, scheduled to
ensure the widest possible attendance, to fully communi-
cate with employees, at which the attached notice marked
“Appendix” will be publicly read by a responsible corpo-
rate executive in the presence of a Board agent or, at the

7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CAREY SALT CO. 203
Respondent’s option, by a Board agent in the presence of
a responsible corporate executive.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 15 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten to withhold a scheduled wage in-
crease until we successfully resisted a petition for injunctive
relief which the Board had filed against it in connection with
the Union’s unfair labor practice charges.
WE WILL NOT delay or withhold a scheduled wage in-
crease, or otherwise discriminate against any of you, be-
cause you, or the Union on your behalf, filed unfair labor
practice charges with the Board, or did not persuade the
Board to withdraw its petition for injunctive relief or take
other action sought by the Respondent.
WE WILL NOT fail and refuse to bargain in good faith
with the Union as the exclusive collective-bargaining
representative of the employees in the bargaining unit, by
delaying implementation of a scheduled wage increase or
otherwise changing any term or condition of employment
which is a mandatory subject of collective bargaining.
WE WILL NOT fail and refuse to bargain in good faith
with the Union as the exclusive collective-bargaining
representative of the employees in the bargaining unit by
conditioning negotiations concerning any mandatory
subject of bargaining upon the Union persuading the
Board to discontinue legal proceedings filed against us.
WE WILL NOT, in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make all employees of the bargaining unit
whole, with interest, for any loss of earnings and other
benefits resulting from our delay in implementing the
wage increase which had been scheduled to take effect
March 25, 2011.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain in good
faith with the Union as the exclusive collective-
bargaining representative of employees in the following
bargaining unit:
All production and maintenance employees, including
storeroom clerks, truck drivers, and dock employees
employed at the Cote Blanche Mine.
CAREY SALT COMPANY, A SUBSIDIARY OF
COMPASS MINERALS INTERNATIONAL, INC.
Stephen C. Bensinger, Esq., for the General Counsel.
Shawn M. Ford, Esq. and Stanley E. Craven, Esq. (Spencer
Fane Britt & Browne, LLP), of Overland Park, Kansas, for
the Respondent.
Julie Richard–Spencer, Esq. (Robein, Urann, Spencer, Picard
& Cangemi, APLC), of Metairie, Louisiana, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. During col-
lective bargaining in 2010, the Respondent declared impasse
and implemented its “final offer” except for that offer’s no-
strike and arbitration provisions. The Union filed unfair labor
practice charges with the Board, which sought an injunction
under Section 10(j) of the National Labor Relations Act (the
Act) while the Board considered and decided the merits of the
charges. Although Respondent’s “final offer” had included a
pay raise scheduled to begin March 25, 2011, the Respondent
informed employees it would not increase wages while the
10(j) petition remained pending in Federal court, and delayed
implementing the increase until after the court denied the peti-
tion. Respondent thereby violated Section 8(a)(1), (4), and (5)
of the Act.
Procedural History
This case began on June 2, 2011, when the Union, United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union and
its Local Union 14425, filed an unfair labor practice charge
against the Respondent, Carey Salt Company, a subsidiary of
Compass Minerals International, Inc. Region 15 of the Nation-
al Labor Relations Board (the Board) docketed this charge as
Case 15–CA–020035. The Union amended this charge on July
26, 2011.
Also on July 26, 2011, the Union filed a separate charge
against the Respondent. Region 15 docketed this charge as
Case 15–CA–061694.
On August 31, 2011, the Regional Director for Region 15 is-
sued a complaint and notice of hearing in Case 15–CA–020035.
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On October 25, 2011, the Regional Director issued a complaint
and notice of hearing in Case 15–CA–061694. In doing so, the
Regional Director acted for and on behalf of the Acting General
Counsel of the Board (the General Counsel or the Govern-
ment). Respondent filed a timely answer to each complaint.
On November 2, 2011, the Regional Director issued an Or-
der consolidating Cases 15–CA–020035 and 15–CA–061694.
On November 14, 2011, a hearing opened before me in New
Iberia, Louisiana. The parties presented evidence on that date
and on November 15, 2011, when the hearing closed. Thereaf-
ter, counsel filed briefs, which I have read and considered.
Admitted Allegations
Respondent’s answers to the two complaints admit a number
of allegations. Based on those admissions, I make the follow-
ing findings: The charges were filed and served as alleged.
At all material times, Respondent has been a corporation
with an office and place of business in Cote Blanche, Louisi-
ana, where it operates a rock salt mine. Respondent satisfies
both the statutory and discretionary standards for the Board’s
exercise of jurisdiction, and is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
At all material times, the following individuals have been
Respondent’s supervisors within the meaning of Section 2(11)
of the Act and its agents within the meaning of Section 2(13) of
the Act: Angelo Brisimitzakis, chief executive officer; Don
Brumm, Cote Blanche Mine operations manager; Gord Bull,
Cote Blanche Mine manager: Toyla Charles, Cote Blanche
Mine human resources representative; Mike Giovinazzo, Cote
Blanche Mine maintenance superintendent; and Victoria Hei-
der, vice president-human resources.
Further, based on Respondent’s admissions, I find that the
United Steel, Paper and Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial and Service Workers International Un-
ion, and its Local Union 14425, have been and are labor organ-
izations within the meaning of Section 2(5) of the Act.
Since about March 25, 2007, the Union has been the desig-
nated exclusive bargaining representative of the following unit
of employees, which is an appropriate unit for collective bar-
gaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees, including store-
room clerks, truckdrivers and dock employees employed at
the Cote Blanche Mine.
Also since about March 25, 2007, Respondent has recog-
nized the Union as the exclusive bargaining representative of
this unit. This recognition has been embodied in successive
collective-bargaining agreements, the most recent of which was
effective from March 25, 2007, to March 24, 2010.
Background
Respondent and the Union have a longstanding bargaining
relationship. On February 8, 2010, they began negotiations for
a collective-bargaining agreement to replace the existing con-
tract, which was effective during the period March 25, 2007,
through March 24, 2008.
From February 8 to March 18, 2010, the parties met 14
times. At the bargaining session on March 19, 2010, the Union
asked the Respondent to make a final offer that could be taken
to its members for consideration. The next day, Respondent
provided such an offer, which included a proposal for a 2.5-
percent wage increase on March 25, 2010, another 2.5-percent
wage increase on March 25, 2011, and another 2.5-percent
increase on March 25, 2012.
Respondent’s proposal also included a number of terms
which the Union regarded as less favorable than the provisions
in the expiring contract. On March 23, 2010, the union mem-
bership voted to reject Respondent’s offer. Respondent agreed
to extend the expiring agreement until March 31, 2010, and to
meet with the Union again on that date.
When the parties met on March 31, 2010, Respondent in-
formed the Union that its final offer was final. Respondent’s
vice president-human resources, Victoria Heider, told the union
representatives that the parties were at impasse and that Re-
spondent was going to implement the terms of its final offer,
except for the no-strike and arbitration provisions.
The union representatives insisted that the parties were not at
impasse. The Union’s chief negotiator told Heider that a Fed-
eral mediator was en route to the meeting and asked her to stay
until the mediator arrived. Instead, she left.
On March 31, 2010, Respondent’s mine manager notified the
Union by email that the Company was implementing its final
offer, except for the arbitration and no-strike clauses. Based on
this final offer, Respondent then made numerous changes in the
terms and conditions of employment.
At a union meeting on April 7, 2010, the membership voted
to engage in an unfair labor practice strike. The Union re-
mained on strike until June 15, 2010, when it made an uncondi-
tional offer to return to work on behalf of the strikers. The
Respondent has not reinstated all of the strikers, but instead has
recalled some of them based upon its own criteria.
The Union filed unfair labor practice charges against the Re-
spondent which the Regional Office docketed as Cases 15–CA–
019704 and 15–CA–019738. On December 30, 2010, the Act-
ing Regional Director issued an order consolidating cases, con-
solidated complaint and notice of hearing. In March 2011, the
Honorable Margaret G. Brakebusch conducted a hearing and,
on August 1, 2011, issued a decision, docketed as JD(ATL)–
21–11. (The recitation of facts above draws on the findings in
that decision.)
Judge Brakebusch’s decision concluded that Respondent had
violated the Act in a number of ways, including by implement-
ing its proposal on March 31, 2011, notwithstanding that no
impasse existed between the parties. Judge Brakebusch also
found that the strike was an unfair labor strike from its incep-
tion, and that Respondent unlawfully had failed to reinstate the
strikers after the Union made an unconditional offer on their
behalf to return to work.
Respondent has appealed Judge Brakebusch’s decision and
that appeal pends before the Board.
Disputed Allegations
Case 15–CA–20035
Complaint Paragraphs 7(a) and (b)
Paragraphs 7(a) and (b) of the complaint in Case 15–CA–
020035 allege that on about March 10, 2011, in a notice to
CAREY SALT CO. 205
employees, Respondent threatened employees that it would
withhold a scheduled pay increase until it successfully resisted
the Board’s efforts to seek an injunction against it, and condi-
tioned the grant of this scheduled wage increase on Respondent
being successful in defending against the petition for injunc-
tion. Respondent denies these allegations.
The record establishes without contradiction that Respond-
ent’s management posted a notice dated March 10, 2011, in the
punch clock area of its facility. The notice stated, in part, as
follows:
Cote Blanche Mine—Wage Increase Status
March 10, 2011
We expect there are some employee questions about if
or when any pay increase will take effect in 2011. Wage
increases historically have taken place in late March. We
were planning to make a 2.5% increase (as we proposed in
our final offer during the contract negotiations with the un-
ion a year ago), but that increase will not be made until we
successfully resist the injunction that the National Labor
Relations Board (NLRB) is seeking against us. We don’t
think there is any basis for an injunction and we are vigor-
ously resisting it. We hope to have prevailed by mid-2011
and in that case we would increase wages then.
The evidence thus establishes the allegations in complaint
paragraph 7(a). Respondent’s notice to employees clearly stat-
ed that the wage increase “will not be made until we successful-
ly resist the injunction. . . .” Stating that a wage increase “will
not be made” is equivalent to the language attributed to Re-
spondent in complaint paragraph 7(a), i.e., that it would “with-
hold” the pay increase. Therefore, I conclude that the General
Counsel has proven the allegations in complaint paragraph 7(a).
Complaint paragraph 7(b) alleges that Respondent threatened
employees that the wage increase was “conditioned on the Em-
ployer successfully winning its defense to the Board’s petition
for Section 10(j) relief.” The language in Respondent’s March
10, 2011 notice to employees communicates exactly that mes-
sage. The statement that the wage increase would not be made
“until we successfully resist the injunction” (emphasis added)
makes clear that payment of the wage increase was conditioned
upon Respondent prevailing in the 10(j) litigation.
Respondent’s notice to employees further stated, “We hope
to have prevailed by mid-2011 and in that case we would in-
crease wages then.” The notice does not state either directly or
by implication that Respondent would implement the wage
increase regardless of success or failure in the 10(j) litigation.
Therefore, Respondent clearly implied that it would pay the
wage increase only if it won in the 10(j) proceeding. Therefore,
I conclude that the General Counsel has proven the allegations
in complaint paragraph 7(b).
Do these statements violate Section 8(a)(1) of the Act, as al-
leged in complaint paragraph 19? Later in this decision, I con-
clude that Respondent’s implementation of its final proposal
bound it to grant the 2.5-percent pay increase on March 25,
2011. In analyzing whether Respondent’s statement, quoted
above, violates Section 8(a)(1) of the Act, I will begin by as-
suming that Respondent did indeed have a duty to pay the wage
increase starting March 25, 2011.
The Board has long held that an employer violates Section
8(a)(1) if it informs employees that it will withhold wage in-
creases or accrued benefits because of union activities. Invista,
346 NLRB 1269, 1270 (2006), citing Centre Engineering, Inc.,
253 NLRB 419, 421 (1980); Earthgrains Baking Cos., 339
NLRB 24, 28 (2003), enfd. 116 Fed. Appx. 161 (9th Cir. 2004).
The same principle applies when the announced reason for
withholding the benefit is the Board’s taking legal action in
response to the Union’s filing of an unfair labor practice
charge.
Respondent gave employees only one reason for its decision
to delay the wage increase and that reason was the 10(j) lawsuit
which the Board had filed. Moreover, its notice to employees
clearly implied that it would not grant the raise until—and, by
implication, unless—it prevailed in the lawsuit.
The Board applies an objective standard to determine wheth-
er a statement interferes with, restrains, or coerces employees in
the exercise of their Section 7 rights. So, here, I consider what
Respondent’s words reasonably would convey to a typical em-
ployee. They clearly convey the message that Respondent is
delaying the wage increase because of the Board’s lawsuit
against it. That is not merely the plain meaning of Respond-
ent’s words but the only meaning I can fathom from Respond-
ent’s statement that “[w]e were planning to make a 2.5% in-
crease . . . but that increase will not be made until we success-
fully resist the injunction that the National Labor Relations
Board (NLRB) is seeking against us.”
The Union’s unfair labor practice charges, of course, led to
the 10(j) lawsuit as well as the underlying unfair labor practice
proceedings, and there could have been no 10(j) proceeding if
the Union had not filed the charges. Thus, Respondent’s state-
ment that it would not pay the wage increase until it succeeded
in the 10(j) proceeding clearly ties the delay to the employees’
concerted action through their Union. Accordingly, I conclude
that Respondent violated Section 8(a)(1) by the conduct alleged
in complaint paragraphs 7(a) and (b).
As noted above, in reaching this conclusion I have assumed
that Respondent had a duty to increase wages on March 25,
2011, in accordance with the provisions of the final offer it
implemented. However, based upon the specific wording of
Respondent’s March 10, 2011 notice, I would find that the
notice conveyed an unlawful threat even if the Respondent did
not have a duty to raise pay rates.
Respondent’s March 10, 2011 notice to employees states,
“We were planning to make a 2.5% increase . . .” but would not
do so because of the 10(j) litigation. When an employer specif-
ically informs employees that it had been planning to confer
some benefit but had decided not to do so because of activity
protected by the Act, the statement clearly communicates that
the employer is penalizing the employees because of the pro-
tected activity. Such a statement would be a clear-cut threat of
retaliation even if the employer actually had no plan to confer
the benefit. The statement informs employees that they have
suffered a loss because they or their union had engaged in pro-
tected activity, and thus interferes with, restrains, or coerces
employees in the exercise of Section 7 rights.
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In sum, I conclude that the Government has proven the alle-
gations in complaint paragraphs 7(a) and (b), and that this con-
duct violates Section 8(a)(1) of the Act.
Complaint Paragraph 7(c)
At hearing, the General Counsel orally amended the com-
plaint to add a subparagraph 7(c), which alleges as follows:
About March 10, 2011, Respondent, by email to its employ-
ees, threatened its employees that it would withhold a sched-
uled pay increase until such time as it successfully resisted an
injunction the Board was seeking against it and threatened its
employees that their scheduled wage increase was being
withheld, conditioned on the employer successfully winning
its defense to the Board’s petitioned-for Section 10(j) relief.
Respondent amended its answer to deny this new allegation. It
also raised the affirmative defense that this new allegation is
time barred by Section 10(b) of the Act.
The record establishes that on about March 10, 2011, Re-
spondent emailed to employees the same notice, quoted above,
which it had posted near the punch clock. For the same reasons
discussed above, I conclude that the emailed notice violated
Section 8(a)(1) in the same way the posted notice did.
With respect to Respondent’s “statute of limitations” de-
fense, Section 10(b) of the Act provides, in part, that
no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon
the person against whom such charge is made, unless the per-
son aggrieved thereby was prevented from filing such charge
by reason of service in the armed forces, in which event the
six-month period shall be computed from the day of his dis-
charge.” 29 U.S.C. § 160(b).
The Union filed its initial charge in Case 15–CA–020035 on
June 2, 2011, which is less than 3 months after the date of the
conduct alleged in the new complaint subparagraph 7(c).
Moreover, the original charge included the following language:
Since on or about March 10, 2011, the Employer has coerced
its production and maintenance employees by threatening in
writing to withhold a scheduled pay increase until such time
that it could “successfully resist the injunction that the Na-
tional Labor Relations Board (NLRB) is seeking against us.”
Since on or about March 10, 2011, the Employer has coerced
its production and maintenance employees by threatening in
writing to implement a scheduled pay raise only upon its suc-
cessful defense to the NLRB’s petition for Section 10(j) relief
and “in that case we would increase wages then.”
Thus, the charge alleges that Respondent made the threat “in
writing” while complaint paragraph 7(c) alleges that Respond-
ent made the threat by email. If this new allegation, of a threat
by email, is “closely related” to the allegation raised by the
charge, then Section 10(b) does not bar litigation of the new
allegation. See Redd-I, Inc., 290 NLRB 1115, 1118 (1988).
To determine whether a new allegation is “closely related” to
the allegations raised by a charge, the Board considers:
(1) Whether the otherwise untimely allegations of the
amended charge involve the same legal theory as the al-
legations in the timely charge;
(2) Whether the otherwise untimely allegations of the
amended charge arise from the same factual situation or
sequence of events as the allegations in the timely
charge; and
(3) Whether a respondent would raise the same or similar
defenses to both the untimely and timely charge allega-
tions.
See, e.g., WGE Federal Credit Union, 346 NLRB 982 (2006).
In the present instance, the answer to all three questions is
“yes.” The new allegation obviously involves the same legal
theory and arises from the same factual situation. The offend-
ing language is the same. Only the means of delivery differed.
Moreover, because the language is the same, the Respondent
would raise the same defenses. It is a bit difficult to imagine
how the lawfulness or unlawfulness of the language would
entail different legal principles depending on whether the lan-
guage were posted or emailed. Therefore, I conclude that the
new allegation is closely related to the allegations raised by the
charge, and reject Respondent’s 10(b) defense.
At first glance, it might appear that, because the offending
language is the same, the remedy for the violations alleged in
complaint paragraphs 7(a) and (b) necessarily would remedy
the harm done by the violation alleged in complaint paragraph
7(c). However, the method of delivery does make a difference.
More employees would be likely to read a notice sent to
them by email than a notice posted near the punch clock. Em-
ployees reporting for their shifts may well be in a hurry to clock
in and begin work. Likewise, at the end of their shifts, many
employees likely will be eager to clock out and go home. For
this reason, they might well pass by without reading the notice.
However, an employee using a computer at home would
have more time to read an email and consider it. Additionally,
an email addressed to an employee might well be more likely to
attract that person’s attention than a general notice on the wall
or bulletin board. A full remedy for this violation, therefore,
must involve Respondent emailing the Board-ordered “Notice
to Employees” to all members of the bargaining unit.
Complaint Paragraphs 8, 9, and 10
Complaint paragraph 8 alleges that Respondent delayed a
wage increase for its production and maintenance employees
from about March 10 until about May 22 or 23, 2011. Re-
spondent denies this allegation.
The complaint further alleges that this delay violated a num-
ber of subsections of the Act. Here, I consider whether Re-
spondent did delay a wage increase and, if so, whether this
action constitutes discrimination in violation of Section 8(a)(3)
and (4) of the Act.
As discussed above, in proving that a threat violating Section
8(a)(1), the Government need not establish that Respondent
actually had planned to raise wages on March 25, 2011. Re-
spondent’s message to employees—essentially that it had been
planning to increase pay on that date but would not because of
the 10(j) proceeding—chills the exercise of protected rights
regardless of whether the Respondent in fact had intended to
CAREY SALT CO. 207
grant the increase on that date. However, proving unlawful
discrimination requires more. If employees are not entitled to
receive a wage increase on a certain date, then failing to raise
pay on that date does not affect their employment in a suffi-
ciently adverse way to violate Section 8(a)(3) and (4).
An 8(a)(1) violation certainly causes harm by interfering
with, restraining, or coercing employees in the exercise of pro-
tected rights. However, when the 8(a)(1) violation involves a
threat, the Board applies an objective standard to determine the
effect the words reasonably would have on a typical employee.
The Government need not prove that the threat actually had
such an impact on any particular individual.
On the other hand, as a general principle, proof of an 8(a)(3)
or (4) violation must include a showing that the alleged unlaw-
ful action affected the terms and conditions of employment of a
specific employee or group of employees. The complaint al-
leges that Respondent discriminated against the bargaining unit
employees by delaying a pay raise which was due to bargaining
unit employees on a particular date. Establishing such a dis-
criminatory delay must begin with proof that the employees
were, in fact, to receive a pay raise on that date.
Although complaint paragraph 8 alleges that Respondent de-
layed a wage increase from March 10 until about May 22 or 23,
2011, the record does not establish that the unit employees were
to receive a wage increase on March 10. On the other hand,
abundant evidence indicates that they were to receive the 2.5-
percent pay raise on March 25, 2011.
Such evidence includes Respondent’s undisputed statements,
which constitute admissions. As discussed above, on March
10, 2011, Respondent posted at its mine and also emailed to
employees a notice which stated, in part: “We were planning to
make a 2.5% increase (as we proposed in our final offer during
the contract negotiations with the union a year ago) . . . .”
Further, Respondent’s vice president for human resources,
Victoria Heider, testified that in August 2010, when Respond-
ent prepared its 2011 budget, it included in that budget the 2.5-
percent raise. Thus, Heider’s testimony corroborates Respond-
ent’s March 10, 2011 admission that it was planning to make
the pay increase.
Mine Manager Gordon Bull, who was on management’s
budgeting team, testified that Respondent had planned to grant
the pay increase on April 1, 2011, rather than on March 25,
2011:
Q. Okay. Well, since you were on the budgeting team,
how did you pick the April 1 date?
A. We chose April 1 for—it was approximately March
25, and April 1 was the beginning—it was for ease of
budgeting, to pick the beginning of the month.
Q. Oh, okay. So it was sort of coming from following
the traditional March 25 date, but for ease of accounting,
you sort of made it April 1.
A. Correct.
Even though Mine Manager Bull’s testimony indicates that
management intended to implement the pay raise a week after
March 25, 2011, it nonetheless shows that Respondent was
treating the raise not as a speculative matter but as an obliga-
tion. The documentary evidence points to a similar conclusion.
As discussed above, on March 20, 2010, Respondent pre-
sented the Union with a “final offer” and thereafter would not
change it. This written proposal specified a 2.5-percent wage
increase on March 25, 2010, another 2.5-percent pay raise on
March 25, 2011, and a third 2.5- percent increase on March 25,
2012. At a bargaining session on March 31, 2010, Respond-
ent’s vice president of human resources said that the parties
were at impasse and that Respondent was going to implement
its final offer except for the arbitration and no–strike provi-
sions.
That same day, Mine Manager Bull stated in an email to Un-
ion Representative Fuslier, “in view of being at impasse, effec-
tive immediately the Company’s final offer is being imple-
mented (but without any agreement to submit disputes to arbi-
tration and without any no strike clause).” If Respondent had
failed to implement the wage schedule, presumably Bull’s
email would have listed it among the exceptions, but it did not.
The email clearly conveys the sense that Respondent had im-
plemented the wage schedule, and Respondent’s subsequent
conduct confirms that interpretation. Thus, if management had
not, in fact, implemented the wage schedule, it would not have
included the pay raise in its 2011 budget.
The Union engaged in a strike from about April 7, 2010, to
June 15, 2010, when it made, on behalf of the strikers, an un-
conditional offer to return to work. The Union then asked Re-
spondent about the terms and conditions under which the em-
ployees were working. In a June 24, 2010 memo to Union
Representative Fuslier, Mine Manager Bull stated: “All em-
ployees are presently working under the terms and conditions
as described in the Company’s final offer dated March 19,
2010.” As noted above, that offer included a wage schedule
providing for a 2.5-percent increase on March 25, 2011.
All of this evidence points in the same direction, towards the
conclusion that Respondent implemented the wage schedule
which provided for implementation of a 2.5-percent raise on
March 25, 2011. Is there any contrary evidence?
On June 28, 2010, in an email to the mine manager, Union
Representative Gary Fuslier again sought information concern-
ing the terms and conditions of employment which Respondent
had implemented. It stated:
Please provide the Union with a list of all portions of the
Company’s June 23 “Final” proposal that have been unilater-
ally implemented since June 27th.
Please provide this information by 5 p.m. today.
The next day, Mine Manager Bull emailed the following reply:
Gary—We are implementing the entire proposal, except those
things mentioned in the Saturday June 26, 2010 notification
that cannot be implemented. We have prepared a document
setting forth what is now in effect. Please find a copy at-
tached.
Attached to the email was a document dated June 27, 2010,
and titled, “Operating Procedure.” Although the title was dif-
ferent, the document resembled Respondent’s final proposal.
However, its schedule of wages showed only the rates in effect
in 2010 and made no mention of future increases.
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Does the absence of the March 25, 2011, and March 25,
2012 wage increases from this document signify that Respond-
ent had not, in fact, adopted the wage schedule in its final pro-
posal. For the following reasons, I conclude it does not.
First, Bull’s email does not claim that the attached document
reflects all the terms and conditions of employment which Re-
spondent implemented. Rather, Bull’s email stated, “We have
prepared a document setting forth what is now in effect.” (Em-
phasis added.)
Second, Respondent’s inclusion of the March 25, 2011 in-
crease in its 2011 budget indicates a continuing intention to
follow the final proposal it implemented on March 31, 2010.
Third, Respondent did implement the 2.5-percent increase,
albeit on May 23, 2011, almost 2 months past the specified
date. The fact that it did implement the increase, and did so
shortly after the District Court denied the injunction sought by
the Board, suggests that Respondent intended all along to raise
wages and delayed doing so because of the proceeding in Dis-
trict Court.
The March 10, 2011 notice which Respondent posted and
emailed to employees also expressed a clear intention to grant
the wage increase “but that increase will not be made until we
successfully resist the injunction . . . .” For these reasons, I
conclude that the document attached to Bull’s June 29, 2010
email was precisely what the email stated, “a document setting
forth what is now in effect.” Therefore, it does not contradict
the evidence establishing that Respondent implemented all
parts of its March 20, 2010 final offer except for the arbitration
and no–strike provisions.
In its posthearing brief, Respondent raises further arguments
which I have considered and reject for the reasons stated below.
Respondent’s brief acknowledges that “the Board has held
that an employer can incorporate a future benefit into its em-
ployees’ terms and conditions of employment by promising or
announcing the benefit to its employees.” Its brief further con-
cedes that the “Division of Advice has applied this rule to the
implementation of final offers where an employer makes spe-
cific representations to the Union and/or to its employees re-
garding the out-year pay increases contained in a final pro-
posal.” However, Respondent vigorously argues that “the
Company made no such representation, indication, reference, or
promise here.”
Although this portion of Respondent’s brief is correct on the
law, it is wrong on the facts. Quite wrong. As discussed
above, clear and uncontroverted evidence establishes that Re-
spondent did represent, indicate, reference and promise a 2.5-
percent wage increase on March 25, 2011. Indeed, the plain
wording of Respondent’s March 19, 2010 “final offer” leaves
no doubt.
For example, this “final offer” states: “Terms of Agreement:
3 years—March 25, 2010–March 24, 2013.” It then continues
Wages—General increase all classifications:
March 25, 2010—2.5% increase
March 25, 2011—2.5% increase
March 25, 2012—2.5% increase
This unequivocal language in the Respondent’s “final offer”
plainly contradicts the assertion in Respondent’s brief that “the
Company made no such representation, indication, reference, or
promise” of a wage increase on March 25, 2011. Indeed, Re-
spondent’s own notice to employees, quoted above, contradicts
its brief on this point. Thus, the March 10, 2011 notice told
employees “We were planning to make a 2.5% increase (as we
proposed in our final offer during the contract negotiations
with the union a year ago) . . . .” (Emphasis added.)
It is difficult to fathom how Respondent would avoid the ef-
fects of this admission except, perhaps, by arguing that alt-
hough its final offer proposed the wage increase, such a pro-
posal did not amount to a “representation, indication, reference
or promise” that the proposed wage increase would be put into
effect. However, the proposal does not stand by itself. Re-
spondent also notified the Union it was implementing the pro-
posal and, together, the proposal and notice of implementation
certainly do rise to the level of “representation, indication, ref-
erence or promise.”
The Respondent appears to argue that the final offer created
no reasonable expectancy that the wage increase would be
granted. However, nothing in the final offer contradicts the
language, quoted above, that a 2.5-percent wage increase would
be granted on March 25, 2011. To the contrary, the “final of-
fer” began by stating that no term would be considered accept-
ed “unless all terms of this offer are accepted.” In other words,
it was a package.
As emails between the Union and Respondent document, af-
ter the Respondent presented this “final offer” the Union re-
peatedly insisted that the parties were not at impasse and Re-
spondent repeatedly replied that the offer was final and would
not be changed. Indeed, Respondent’s vice president of human
resources sent the Union’s international representative a March
31, 2011 email stating:
I am not trying to be insulting but, really, what part of “final”
do you not understand? I stand by my previous response.
Respondent repeatedly and emphatically insisted to the Un-
ion that its final offer would not be changed. Is there any dif-
ference between Respondent’s insistence that the terms would
not be changed and a promise they would not be?
More precisely, did the Union have a reasonable expectancy
that the March 25, 2011 wage increase would take place?
Clearly, Respondent had the power to dispel any such expec-
tancy simply by telling the Union that this provision in its “final
proposal” was not written in stone, in other words, that it was
not really final. However, if Respondent had said to the Union
that the specified March 25, 2011 wage increase did not mean
what it said, that statement would have undercut Respondent’s
claim that the parties were at impasse.
If Respondent had told the Union that the final proposal did
not promise a 2.5-percent wage increase on March 25, 2011,
the obvious conclusion compelled by the proposal’s plain lan-
guage, that would have been tantamount to conceding that a
core term and condition of employment, wages, remained for
bargaining. In view of Respondent’s rigid strategy to declare
impasse, described in detail in Judge Brakebusch’s decision,
CAREY SALT CO. 209
Respondent could not afford to communicate any uncertainty
about the firmness of the terms in its final offer. It did not.
To the contrary, Respondent’s Mine Manager, Gord Bull,
sent a March 31, 2010 email to Union International Representa-
tive Gary Fuslier, which clearly communicated that the wage
provisions of Respondent’s final proposal had been placed in
effect. Bull’s email, addressed to “Gary Fustier” (sic), noted
that the union membership had rejected Respondent’s final
offer:
Accordingly, as we previously explained and in view of being
at impasse, effective immediately the Company’s final offer is
being implemented (but without any agreement to submit dis-
putes to arbitration and without any no strike clause). [Em-
phasis added.]
If Respondent did not intend to implement the wage provisions,
it would have listed that exclusion along with the excluded
arbitration and no-strike provisions. The fact that Mine Man-
ager Bull did not announce an exception for the wage schedule.
but did explicitly exclude the arbitration and no-strike clauses,
clearly signified that the Respondent was implementing the
wage provisions, which specified a 2.5-percent raise on March
25, 2011.
In sum, the terms of the “final proposal” itself, the absence
of any parol which contradicted those terms, and Mine Manag-
er Bull’s March 31, 2010 email, left the Union with the reason-
able expectancy that employees would receive a 2.5-percent
wage increase starting March 25, 2011.
Respondent’s brief appears to argue that, to create a reasona-
ble expectancy of a wage increase, an employer must make
promises or statements apart from the words in a proposal
which it has announced it will implement. However, Respond-
ent does not explain why statements it made in a “final pro-
posal” would be any less trustworthy, or should be taken any
less seriously, than statements it makes in other ways.
Moreover, Bull’s March 31, 2010 email to Fuslier does con-
stitute the sort of statement which Respondent claims to be
necessary. The email’s statement that Respondent was imple-
menting its final proposal except for the arbitration and no-
strike provisions clearly communicated that the remaining pro-
visions, including the wage provisions, were being implement-
ed. Those wage provisions, as noted above, specifically in-
cluded the March 25, 2011 increase.
Therefore, I reject as contrary to fact the statement in Re-
spondent’s brief that “the Company never promised its employ-
ees a pay increase as a part of its implementation of its March
19, 2011 [sic] final offer.” The final offer itself unequivocally
provided for a pay increase on March 25, 2011, and Mine Man-
ager Bull informed the Union that Respondent was implement-
ing the offer.
Accordingly, for all the reasons stated above, I find that Re-
spondent delayed a wage increase for its production and
maintenance employees from March 25, 2011, until May 23,
2011.
Complaint paragraph 9 alleges that Respondent delayed the
wage increase because the employees of Respondent formed,
joined and assisted the Union and engaged in concerted activi-
ties, and to discourage employees from engaging in these activ-
ities. Complaint paragraph 10 alleges that Respondent delayed
the wage increase because the Union filed unfair labor practice
charges in Case 15–CA–019704. Respondent denies both these
allegations.
Complaint paragraph 20 alleges that Respondent’s delay of
the wage increase violated Section 8(a)(1) and (3) of the Act
and complaint paragraph 21 alleges that this same conducted
violated Section 8(a)(4) of the Act. Respondent denies these
allegations.
In analyzing these allegations, I will follow the procedure set
forth by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). See American Gardens Management Co., 338 NLRB
644 (2002) (the Board applies the Wright Line analytical
framework in cases alleging discrimination under Sec. 8(a)(4)
as well as those alleging 8(a)(3) discrimination).
Under Wright Line, the General Counsel must establish four
elements by a preponderance of the evidence. First, the Gov-
ernment must show the existence of activity protected by the
Act. Second, the Government must prove that Respondent was
aware that the employees had engaged in such activity. Third,
the General Counsel must show that the alleged discriminatees
suffered an adverse employment action. Fourth, the Govern-
ment must establish a link, or nexus, between the employees’
protected activity and the adverse employment action. More
specifically, the General Counsel must show that the protected
activities were a substantial or motivating factor in the decision
to take the adverse employment action. See, e.g., North Hills
Office Services, 346 NLRB 1099 (2006).
In effect, proving these four elements creates a presumption
that the adverse employment action violated the Act. To rebut
such a presumption, the respondent must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct. Wright
Line, 251 NLRB at 1089; Hyatt Regency Memphis, 296 NLRB
259, 260 (1989), enfd. in relevant part 939 F.2d 361 (6th Cir.
1991). See also Manno Electric, Inc., 321 NLRB 278, 280 at
fn. 12 (1996).
The first Wright Line element requires the General Counsel
to prove the existence of protected activity. As noted above,
the Union filed charges against Respondent in Cases 15–CA–
019704 and 15–CA–019738. After an investigation, the Re-
gional Director issued an order consolidating cases, consolidat-
ed complaint and notice of hearing, resulting in the hearing
before Judge Brakebusch discussed above. In connection with
these cases, the Regional Director also filed a petition for in-
junctive relief in the United States District Court for the West-
ern District of Louisiana. On May 18, 2011, the Court denied
the petition.
The Union’s filing of the unfair labor practice charge on be-
half of employees in the bargaining unit it represents constitutes
protected activity attributable to those employees. So does the
Union’s cooperation in the investigation. Therefore, I conclude
that the General Counsel has satisfied the first Wright Line
element.
Respondent was aware of this protected activity because it
received service of the unfair labor practice charges and the
10(j) petition filed in Federal court. Additionally, Respondent
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
appeared by counsel in court. Therefore, I conclude that the
General Counsel has proven the second Wright Line element.
Third, the Government must establish that employees suf-
fered an adverse employment action. As noted above, the rec-
ord establishes that Respondent delayed implementing the 2.5-
percent wage increase from March 25 to May 22, 2011. More-
over, Mine Manager Bull credibly testified that when Respond-
ent implemented the raise on May 22, 2011, it was not retroac-
tive.
Because a 2.5-percent wage increase on March 25, 2011,
was a definite term of employment, the employees suffered a
definite loss when Respondent delayed it. Respondent could
have corrected this harm by making the raise retroactive, but
did not. Accordingly, I conclude that the employees suffered
an adverse employment action and that the General Counsel has
established the third Wright Line element.
Fourth, the Government must prove a connection between
the adverse employment action and the protected activity. Re-
spondent admits that it delayed the wage increase because of
the 10(j) proceeding in Federal court and the documentary evi-
dence accords with this admission. Indeed, Respondent seeks
to justify the wage increase delay as an appropriate response to
the 10(j) lawsuit.
On March 10, 2011, Respondent emailed a notice to employ-
ees which is set forth in full above. It also posted the same
notice. These words form its core:
We were planning to make a 2.5 percent increase . . . but that
increases will not be made until we successfully resist the in-
junction that the National Labor Relations Board (NLRB) is
seeking against us.
These words establish a clear connection between the ad-
verse employment action, withholding the wage increase, and
the protected activity, the Union filing the unfair labor practice
charges which led to the Board’s 10(j) lawsuit. Additionally,
Mine Manager Bull communicated the same message to union
officials on March 14, 2011.
On that day, Union President Mark Migues and Vice Presi-
dent O’Neal Robertson met with Mine Manager Bull and Hu-
man Resources Representative Toyla Charles. According to
Migues, he asked Bull “if we was going to get a raise this year”
and Bull responded by asking Migues if they were going to
drop the 10(j) charges. Migues said that he didn’t think so.
Migues quoted Bull as responding that “the only way we’d get
a raise, we’d wait on the Judge’s decision on the 10(j).”
No evidence contradicts Migues’ testimony. Moreover, the
statement that Migues attributed to Bull is consistent with the
March 10, 2011 notice which Respondent posted and emailed
to employees. Crediting that testimony, I find that Respondent
communicated to employees that they would not be receiving
the wage increase before the District Court ruled on the Board’s
10(j) petition.
Based upon both Respondent’s March 10, 2011 notice to
employees and the statement Mine Manager Bull made to the
union officials, I find that Respondent delayed the scheduled
wage increase because of the 10(j) petition filed in Federal
court. Accordingly, I conclude that the General Counsel has
established the fourth Wright Line element.
Because the Government has proven all four Wright Line el-
ements, the burden shifts to Respondent to establish that it
would have taken the same action even in the absence of the
protected activity. For the following reasons, I conclude that
Respondent has not carried its rebuttal burden.
In his opening statement, Respondent’s counsel disagreed
with the Government’s position that Respondent had made a
commitment to grant a 2.5-percent wage increase on March 25,
2011. Further, he explained Respondent’s reasoning for not
raising wages on that date:
The company changed its mind, because General Counsel
was seeking 10(j) injunction relief, and in that relief, they
sought a full return to the terms and conditions that existed
prior to the implementation of the initial final offer, back on
March 31, 2010. Now, that final offer contained a number of
operational changes that had drastically increased efficiency
at the mine. There were shift schedules and work assignment
changes in that final offer. And while the company may have
internally budgeted and planned to provide a 2.5-percent pay
increase in 2011 under those new terms it had implemented, it
had certainly never planned for such an increase to be coupled
with the return to the old, inefficient model that had preceded
its March 31 implementation back in 2010.
So phrased, Respondent’s reason for delaying the increase
appears to be a business justification devoid of any hostility
towards the Union. However, Respondent’s explanation omits
an important fact: Its implementation of the “operational
changes that had drastically increased efficiency” was unlaw-
ful. Judge Brakebusch’s decision found that those changes
violated Section 8(a)(5) and (1) of the Act.
Recognition of the illegality of Respondent’s action changes
the tenor of Respondent’s argument: “And while the company
may have internally budgeted and planned to provide a 2.5-
percent pay increase in 2011 under those new [unlawful] terms
it had [illegally] implemented, it had certainly never planned
for such an increase to be coupled with the return to the old,
inefficient [lawful] model . . . .”
An employer’s fear that it would be forced to operate lawful-
ly does not constitute a legitimate business justification. In
essence, Respondent’s explanation amounts to saying, “We
won’t implement the wage increase unless we are allowed to
get away with committing an unfair labor practice.” That sup-
posed “justification” cannot carry the Respondent’s rebuttal
burden, and I conclude that it does not.
In these circumstances, Respondent has failed to carry its re-
buttal burden. Accordingly, I conclude that Respondent’s delay
in implementing the March 25, 2011 wage increase violates
Section 8(a)(4) of the Act, which makes it unlawful for an em-
ployer “to discharge or otherwise discriminate against an em-
ployee because he has filed charges or given testimony under
this Act.” 29 U.S.C. § 158(a)(4). Here, all of the bargaining
unit employees filed the charge through their Union and all of
the unit employees suffered the effects of Respondent’s deci-
sion to delay the pay raise.
However, it is unnecessary to conclude that Respondent’s ac-
tion also violated Section 8(a)(3) of the Act because the remedy
for such a violation would be the same as that for the 8(a)(4)
CAREY SALT CO. 211
violation. Moreover, the credited evidence does not establish
that Respondent delayed the wage increase because of any pro-
tected activity other than the filing of the unfair labor practice
charge, which resulted in the Board instituting the 10(j) lawsuit.
Stated another way, the credited evidence does not establish
that Respondent acted with an intent to encourage or discourage
membership in a labor organization by delaying the wage in-
crease.
In the discussion above, I reached the conclusion that Re-
spondent violated Section 8(a)(4) and (1) through a Wright Line
analysis. However, an admission in Respondent’s opening
statement may call into question the suitability of this analytical
approach. Specifically, Respondent stated that it “changed its
mind” about the March 31, 2011 wage increase “because the
General Counsel was seeking 10(j) injunction relief . . . .” In
view of this admission, it concerns me that the Wright Line
framework might not be appropriate.
The Wright Line analytical technique reaches its stride when
the evidence suggests that the employer considered more than
one reason, or was influenced by more than one reason, in mak-
ing its decision to take an adverse employment action. In such
“mixed motive” situations, the Board must determine whether
the unlawful motive “tipped the balance” and caused the em-
ployer to take an action it otherwise would not have taken.
However, when an employer’s admitted reason for imposing
discipline is conduct which is itself protected by the Act, a
Wright Line analysis is neither necessary nor appropriate. See,
e.g., Phoenix Transit System, 337 NLRB 510 (2002) (employee
discharged for the protected activity of writing articles for un-
ion news letter); Saia Motor Freight, 333 NLRB 929 (2001)
(employee disciplined for violating unlawful no–solici-
tation/no-distribution rule); Beverly Health & Rehabilitation
Services, 346 NLRB 1319 (2006) (employee suspended for
discussing pending grievance). Here, Respondent has admitted
that it delayed the wage increase because of the 10(j) lawsuit.
Therefore, I note that I would reach the same conclusions in
this instance even without a Wright Line analysis. Respondent
delayed implementing the pay raise because of the 10(j) law-
suit. I conclude that this delay violated Section 8(a)(4) of the
Act, but not Section 8(a)(3).
One other matter may merit some discussion. Although the
District Court denied the Board’s petition for an injunction, it
should be noted that the Court did not rule on whether or not
Respondent committed an unfair labor practice by declaring
impasse and implementing its final offer. Indeed, it appears
that Respondent did not wish the Court to examine too closely
how it had acted in dealing with the Union. Thus, the District
Court’s May 18, 2011 Memorandum Order denying the injunc-
tion includes a footnote which states, in part, as follows:
It is difficult for this Court to gauge exactly which facts are
disputed and which are not, because Carey Salt has elected
not to delineate the facts and circumstances surrounding the
actual bargaining sessions that led to this dispute, arguing
those facts are not relevant to this Court’s determination as to
equitable necessity. This Court tends to agree . . . .
The Respondent is correct that the Board possessed exclu-
sive jurisdiction to determine whether it had committed the
unfair labor practices alleged. After a hearing lasting more than
5 days, Judge Brakebusch found that Respondent unlawfully
had declared impasse and implemented its “final offer.” In
contrast, the District Court neither heard the testimony given
before Judge Brakebusch nor reached the merits of the unfair
labor practice allegations. It simply determined whether inter-
im equitable relief should be granted. Thus, the Court stated:
This Court is reminded that Section 10(j) is an extraordinary
remedy to be used in rare cases only when the evidence shows
an employer or union has committed such egregious unfair
labor practices that any final order of the Board will be mean-
ingless or so devoid of force that the remedial purposes of the
Act will be frustrated and immediate temporary injunctive re-
lief is warranted. This Court concludes the facts and circum-
stances of this case are not so extraordinary and rare that im-
mediate temporary injunctive relief is warranted.
Accordingly, the District Court’s denial of injunctive relief
in no way casts doubts on the findings which Judge Brakebusch
later made after extensive testimony.
In sum, for the reasons stated above, I conclude that Re-
spondent’s withholding of the wage increase constituted dis-
crimination in violation of Section 8(a)(4) of the Act, as al-
leged. However, I further conclude that Respondent did not, by
this conduct, violate Section 8(a)(3).
Alleged Unilateral Change
Complaint paragraph 8 alleged and, as discussed above, I
have found that Respondent delayed the March 25, 2011 pay
increase. Complaint paragraph 15 alleges that Respondent did
so without prior notice to the Union, without affording the Un-
ion an opportunity to bargain with respect to this conduct and
its effects and without first bargaining with the Union to a
good-faith impasse. Complaint paragraph 22 alleges that Re-
spondent thereby violated Section 8(a)(1) and (5) of the Act.
Respondent denies these allegations.
As discussed above, Respondent has admitted, and I have
found, that the Union is the exclusive representative of an ap-
propriate unit of Respondent’s employees, that it has recog-
nized the Union, and that such recognition has been embodied
in collective-bargaining agreements. However, Respondent
denies another element which must be established to prove the
alleged unlawful unilateral change, an element alleged in com-
plaint paragraph 14. Respondent denies that the delayed wage
increase was a mandatory subject of bargaining.
It is long established that wage rates are a mandatory subject
of bargaining. Indeed, the duty to bargain about wages is so
fundamental and so mandatory the statute specifically mentions
it. Section 8(d) of the Act defines the duty to bargain as includ-
ing the duty of the parties to meet and “confer in good faith,
with respect to wages, hours, and other terms and conditions of
employment . . .” 29 U.S.C. § 158(d). Therefore, I conclude
that the Government has proven the allegations raised in com-
plaint paragraph 14.
The evidence thus establishes that Respondent changed a
term of employment that was a mandatory subject of bargain-
ing. The record further establishes that it did so without afford-
ing the Union notice and an opportunity to engage in bargain-
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing over this decision and its effects, as alleged in complaint
paragraph 15. To the contrary, it announced the decision as a
fait accompli. Thus, on March 10, 2011, Respondent informed
employees:
We were planning to make a 2.5% increase (as we proposed
in our final offer during the contract negotiations with the un-
ion a year ago), but that increase will not be made until we
successfully resist the injunction that the National Labor Rela-
tions Board (NLRB) is seeking against us.
In a meeting with union officials on this same date, Mine
Manager Bull left no doubt that Respondent did not intend to
negotiate about whether it would implement the raise. When
asked by Union President Miguez whether the employees were
going to receive a raise that year, Bull responded by asking
whether “they” were going to drop the 10(j) “charges.”
(“They” presumably meant the Union or its officials, because
Bull was meeting with the union president and vice president at
this time.)
When Magues replied that he didn’t think the 10(j) proceed-
ing would be dropped, Bull said that the only way they would
get a raise was to wait on the judge’s decision in that case.
Those words, “the only way,” clearly signify that Respondent
was unwilling to implement the raise so long as the 10(j) peti-
tion remained pending.
Moreover, these events took place in the context of Re-
spondent’s earlier unfair labor practices. As Judge Brakebusch
found, Respondent unlawfully implemented its final offer at a
time the parties were not at impasse and did so even though the
Union insisted that there was no impasse and repeatedly re-
quested to bargain. In the present case, no credible evidence
even hints that management had decided to change course or
that it had given the Union any reason to believe it was now
willing to bargain.
Where, as here, a labor organization is the exclusive repre-
sentative of a unit of an employer’s employees, and where the
employer contemplates making a material, substantial and sig-
nificant change in a term or condition of employment which is
a mandatory subject of bargaining, the employer must inform
the union of its proposed actions under circumstances which at
least afford a reasonable opportunity for counter arguments or
proposals. Defiance Hospital, Inc., 330 NLRB 492 (2000),
citing NLRB v. Centra, Inc., 954 F.2d 366, 372 (6th Cir. 1992).
Although the Respondent informed the Union of its decision
2 weeks before the raise was to take effect, I find that Respond-
ent had no intent to bargain about the matter. Respondent’s
timing, notifying the union officials on the same day it told the
bargaining unit employees, hardly suggests Respondent had
bargaining in mind. See Roll & Hold Warehouse & Distribu-
tion Corp., 325 NLRB 41, 42 (1997). I conclude that manage-
ment’s notification to the Union was merely informational,
about a fait accompli, and fails to satisfy the requirements of
the Act.
Accordingly, I conclude that the General Counsel has proven
that the Respondent made the decision to delay the March 25,
2011 wage increase without prior notice to the Union and with-
out affording the Union an opportunity to bargain with Re-
spondent with respect to the decision and its effects.
Complaint paragraph 15 further alleges that Respondent
made this decision without first bargaining with the Union to a
good-faith impasse. Here, Respondent made the decision to
delay the scheduled pay raise without negotiating at all with the
Union. In the absence of bargaining, there can be no valid
impasse. L.W.D., Inc., 342 NLRB 965 (2004).
To be unlawful, a unilateral change must cause a material,
substantial, and significant change in employees’ terms and
conditions of employment. Ead Motors Eastern Air Devices,
Inc., 346 NLRB 1060, 1065 (2006), citing Millard Processing
Services, 310 NLRB 421, 425 (1993). Here, all employees in
the bargaining unit earned less money than they would have
earned if Respondent had implemented the wage increase on
schedule. Accordingly, I conclude that Respondent’s unilateral
decision causes a material, substantial, and significant change
in employees’ terms and conditions of employment.
In sum, I conclude that, by delaying the March 25, 2011 pay
raise, without affording the Union sufficient notice and an op-
portunity to bargain regarding this decision and its effects, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
Alleged Conditioning of Bargaining
Complaint paragraph 16 alleges that on about March 31,
2011, Respondent insisted, as a condition to bargaining with the
Union about the delay of the wage increase for unit employees,
that the Union convince the Board to withdraw its petition
seeking injunctive relief against Respondent. Complaint para-
graph 17 alleges that this condition is prohibited by Section
8(a)(1) and (5) of the Act. Complaint paragraph 18 alleges that
since about March 31, 2011, in support of this condition, Re-
spondent refused to bargain about the delay in the wage in-
crease and its effects. Respondent denies this allegations.
On March 31, 2011, Union International Representative Mi-
chael Tourne sent an email to Mine Manager Bull and Human
Resources Vice President Heider. This email stated:
The USW objects to the Company’s cancellation of the
2.5% wage increase that the Company said would be ef-
fective March 25, 2011. The Union demands to bargain
over this cancellation and requests that the Company im-
plement the 2.5% wage increase pending the outcome of
our further negotiations. Please contact me with your
available dates.
Thanks, Mike
About a half hour later, Heider emailed to Tourne the following
reply:
Dear Mike;
The Company has never said that there would be a wage in-
crease effective March 25, 2011. We proposed such in negoti-
ations but that proposal was never accepted. As you are
aware, the government has a Section 10 (j) proceeding pend-
ing in federal court. As part of that case, as you should know,
the government (with the permission of the USW) has asked
the federal court to order a return to the pre–March 31, 2010
terms and conditions of employment, which would mean the
cancellation of the 2010 wage increase as well as a prohibi-
tion of any 2011 increase. If you have not seen it, we can pro-
CAREY SALT CO. 213
vide you a copy of the e–mail from the USW lawyer, Bruce
Fickman, acknowledging the foregoing. If the Union can con-
vince the government to withdraw the ridiculous request be-
ing made in federal court to return to the pre-March 31 con-
ditions of employment, we would be more than pleased to be
able to immediately address the wage increase issue you are
raising. In the meantime, of course, as the bargaining repre-
sentative for the unit, we would be pleased to meet with you
at the earliest opportunity to discuss any of this.
Regards, v
(Emphasis added.)
The italicized portion of Heider’s email leaves no doubt that
Respondent conditioned bargaining about implementation of
the pay raise, and its effects, on the Union’s success in getting
the 10(j) petition withdrawn. The next sentence, stating, “[W]e
would be pleased to meet with you” to “discuss any of this,”
does not change the thrust of the requirement Respondent im-
posed.
In this regard, Respondent’s email did not state “we are con-
sidering” imposing the condition but offering to discuss it, but
rather announced the condition as an accomplished fact. More-
over, under the circumstances present here—an employer’s
vice president of human resources communicating with a un-
ion’s international representative—Respondent’s use of the
term “discuss” rather than “bargain” is significant. Both the
sender and recipient of the message were labor relations profes-
sionals who would appreciate the distinction between “discuss-
ing” and “bargaining.” In this context, Heider’s choice of
words supports the conclusion that Respondent had made up its
mind not to implement the wage increase unless the 10(j) peti-
tion was withdrawn.
Therefore, I conclude that the Government has proven that
Respondent, on about March 31, 2011, insisted, as a condition
to bargaining with the Union about the delay of the wage in-
crease for unit employees, that the Union convince the Board to
withdraw its petition seeking injunctive relief against Respond-
ent, as alleged in complaint paragraph 16.
In its answer, the Respondent has admitted that the Union, at
all material times since March 25, 2007, has been the exclusive
representative, within the meaning of Section 9(a) of the Act, of
an appropriate unit of Respondent’s employees. Respondent
thereby admitted that it is legally obligated to bargain with the
Union about wages, hours, and other terms and conditions of
employment which are mandatory subjects of bargaining. As
the word “mandatory” indicates, Respondent has no choice.
On the other hand, not all conceivable topics are mandatory
subjects of bargaining. As a general principle, neither party to
a collective-bargaining relationship may insist to impasse that
the other party bargain about a nonmandatory subject. NLRB v.
Borg-Warner Corp., 356 U.S. 342 (1958).
Nonmandatory subjects of bargaining fall into two catego-
ries, permissive and unlawful. The parties may negotiate and
reach agreement, if they wish, on terms and conditions which
are “permissive” subjects. Although neither side may force the
other to agree to a term or condition which is a permissive sub-
ject, if the parties do agree, such a term will be a lawful and
enforceable part of the contract.
Presumably, it would be permissible, although not mandato-
ry, for the parties to bargain concerning whether the Union
would request that the Board withdraw the petition for injunc-
tive relief. However, the facts here establish more than a re-
quest to negotiate concerning a nonmandatory subject. Rather,
Respondent specifically required, as a condition of even con-
sidering the Union’s position on the wage increase, a mandato-
ry subject of bargaining, that the Union convince the Board to
withdraw the 10(j) petition.
Respondent, having a legal duty to bargain with the Union,
may not condition the performance of that duty even on some-
thing as trivial as, say, the Union providing coffee and dough-
nuts at the negotiating session. It certainly could not require
the Union to convince the Board to withdraw a lawsuit.
Complaint paragraph 18 alleges that since about March 31,
2011, in support of the condition—that the Union convince the
Board to withdraw the 10(j) petition—Respondent refused to
bargain about the delay of the wage increase. The record estab-
lishes that on May 22 or 23, 2011, less than a week after the
District Court denied the Board’s petition for an injunction, the
Respondent implemented the wage increase it had delayed.
However, the record does not indicate that Respondent, at any
time before implementing the wage increase, informed the Un-
ion that it would not require, as a condition of bargaining about
the wage increase, that the Union procure the withdrawal of the
10(j) petition.
After the Court denied the Board’s petition on May 18, 2011,
the condition simply became unnecessary. The Respondent’s
decision to implement the pay raise at that point does not make
lawful its earlier refusal to bargain about the pay raise unless
the 10(j) petition were withdrawn.
In sum, I find that Respondent did insist, as a condition to
bargaining with the Union about the wage increase, that the
Union convince the Board to withdraw the 10(j) petition, as
alleged in complaint paragraph 16. Further, I conclude that this
condition is a nonmandatory subject of bargaining, but need not
determine whether it is a prohibited subject, as alleged in com-
plaint paragraph 17. The fact that Respondent conditioned
bargaining about a mandatory subject, the wage increase, on the
Union’s performing an act which was a nonmandatory subject,
suffices to constitute a refusal to bargain in good faith, in viola-
tion of Section 8(a)(1) and (5) of the Act, as alleged in com-
plaint paragraphs 19 and 22.
Case 15–CA–061694
Paragraph 7 of the complaint in Case 15–CA–061694 alleges
that on about March 14, 2011, Respondent, by Mine Manager
Bull, threatened its employees that they would not have a wage
increase while the Board’s 10(j) petition as pending. Paragraph
8 of this complaint alleges that the statement violated Section
8(a)(1) of the Act. Respondent denies this allegation.
This allegation arises out of a statement attributed to Bull
which I have already discussed above in connection with the
8(a)(3) and (4) discrimination allegations raised in Case 15–
CA–020035. That complaint did not specifically allege this
March 14, 2011 statement to be violative, but the statement was
relevant to the discrimination allegations because it cast light
on Respondent’s motive for withholding the pay increase.
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here, I revisit that statement not because it provides evidence
of motive but to determine whether the statement itself, made to
one of the bargaining unit employees, interferes with, restrains,
or coerces employees in the exercise of the Section 7 rights in
violation of Section 8(a)(1).
As a matter of routine, Respondent’s mine management and
Local union officials meet regularly to discuss whatever issues
have arisen. On March 14, 2011, Local Union President Mark
Migues and Union Vice President O’Neal Robertson met with
Mine Manager Gordon Bull and Human Resources Representa-
tive Toyla Charles.
As discussed above, I have credited Migues’ testimony that
he asked Bull “if we was going to get a raise this year” and that
Bull answered by asking “[a]re you all going to drop the 10(j)
charges?” Migues replied that he didn’t think so. Bull then
said, “[O]nly way we’d get a raise, we’d wait on the Judge’s
decision on the 10(j).”
Applying an objective standard, I conclude that an employee
reasonably would understand Bull’s words to mean that the
Respondent was delaying the scheduled raise because the
Board had filed a lawsuit seeking an injunction against Re-
spondent. Moreover, an employee reasonably would associate
the Board’s 10(j) petition with the Union’s filing of the under-
lying unfair labor practice charge.
Certainly, Migues, who was both a bargaining unit employee
and Local Union president, would appreciate the connection
between the Union’s filing of the unfair labor practice charge
and the actions taken by the Board based on that charge. Based
on the entire record, and noting that members of the bargaining
unit had engaged in a strike to protest Respondent’s unfair la-
bor practices, I conclude that employees were quite aware of
the connection between the unfair labor practice charge filed by
the Union and the Board’s petition for injunctive relief.
In such circumstances, a statement that Respondent was de-
laying the pay increase because of the 10(j) petition clearly
would tend to chill employees’ willingness to file unfair labor
practice charges with the Board. Therefore, I conclude that
Bull’s statement interfered with employees in the exercise of
protected rights and further conclude that this statement violat-
ed Section 8(a)(1) of the Act, as alleged in paragraph 8 of the
complaint in Case 15–CA–061694.
Respondent has admitted being an employer engaged in
commerce, and I conclude that all the unfair labor practices
found above affect commerce, as alleged in paragraph 23 of the
complaint in Case 15–CA–020035 and in paragraph 9 of the
complaint in Case 15–CA–061694.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including posting the notice to em-
ployees attached hereto as Appendix.
Respondent must also post a notice attached to this decision
as Appendix, to inform employees that it has been found guilty
of committing unfair labor practices and the action it will take
to remedy those unlawful actions. In both complaints, the Gen-
eral Counsel “seeks an Order requiring that Respondent have its
representative at the Cote Blanche, Louisiana facility read the
Notice to its employees during their paid work time.” This
remedy is an extraordinary one, Chinese Daily News, 346
NLRB 906, 909 (2006), which I do not believe warranted in the
present case.
However, it is entirely appropriate, and I believe necessary,
for Respondent to transmit a copy of the notice to each employ-
ee in the bargaining unit by email. On March 10, 2011, Re-
spondent committed an unfair labor practice by informing such
employees by email that they would not be receiving a raise on
March 10, 2011, because of the 10(j) petition pending in federal
court. Just as Respondent used email to break the law, so it
should be ordered to use email to undo the harm. See J. Picnic
Flooring, 356 NLRB 11 (2010) (“[N]otices shall be distributed
electronically, such as by email . . . if the Respondent customar-
ily communicates with its employees [members] by such
means.”).
Additionally, Respondent must make its employees whole,
with interest, for all losses they suffered because Respondent
unlawfully delayed the March 25, 2011 wage increase.
CONCLUSIONS OF LAW
1. The Respondent, Carey Salt Company, a Subsidiary of
Compass Minerals International, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union, United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy Allied Industrial and Service Workers
International Union and Local Union 14425, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
threatening its employees that it would withhold a scheduled
pay increase until such time as it could successfully resist an
injunction the Board was seeking against it in Federal court in
connection with unfair labor practice charges filed by the Union
on behalf of bargaining unit employees, and threatening em-
ployees that this scheduled pay increase was being withheld
until it prevailed in the injunction proceeding.
4. The Respondent violated Section 8(a)(4) and (1) of the
Act by delaying, from about March 25, 2011, to May 23, 2011,
a 2.5-percent wage increase bargaining unit employees were
scheduled to receive on March 25, 2011.
5. The Respondent violated Section 8(a)(5) and (1) of the
Act by delaying the scheduled March 25, 2011 wage increase,
as described in paragraph 4 above, without affording the Union
notice and an opportunity to bargain about this decision and its
effects, and without first bargaining with the Union to a good-
faith impasse.
6. The Respondent further violated Section 8(a)(5) and (1) of
the Act by refusing to bargain about the implementation of the
wage increase described above, about Respondent’s decision to
delay such implementation and about the effects of that deci-
sion, and by conditioning its willingness to bargain about these
issues on the Union’s persuading the Board to withdraw the
petition for injunctive relief which the Board had filed against
Respondent in United States District Court.
CAREY SALT CO. 215
7. The Respondent’s unfair labor practices described above
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]