Gaylord Chemical Co. LLC

National Labor Relations Board - Board Decisions

Oct 28, 2014

361 N.L.R.B. 771 (N.L.R.B. 2014)

GAYLORD CHEMICAL CO., LLC 771
Gaylord Chemical Co., LLC and United Steelworkers
International Union and its Local 887. Case 10–
CA–038782
October 28, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On June 25, 2012, the Board issued a Decision and
Order in this proceeding, which is reported at 358 NLRB
525. Thereafter, the General Counsel filed an application
for enforcement in the United States Court of Appeals
for the Eleventh Circuit, and the Respondent filed a
cross-petition for review.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals vacated the Board’s Decision and Order and
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein. Accordingly, we affirm the judge’s rul-
ings, findings, and conclusions and adopt his recom-
mended Order to the extent and for the reasons stated in
the Decision and Order reported at 358 NLRB 525
(2012), which is incorporated herein by reference.1 The
1 We find it unnecessary to pass on the judge’s finding that the inter-
rogation of former Union Steward and Executive Board Member
Ronald Talley was unlawful, because the finding is cumulative and
does not affect the remedy.
Member Johnson agrees that the Respondent violated Sec. 8(a)(5)
and (1) by unlawfully repudiating its collective-bargaining relationship
with the Union after it moved its chemical manufacturing facility from
Louisiana to Alabama. In so finding, Member Johnson relies not only
on the fact that a substantial complement of employees moved with the
plant, but also on the fact that the Alabama plant’s operation, and the
equipment used therein, were substantially identical to what had been
in place in the Louisiana facility. Moreover, the Respondent put on no
witnesses to explain any key differences that would otherwise affect the
standard set forth for relocation cases in Rock Bottom Stores, 312
NLRB 400 (1993). Member Johnson also agrees that the Respondent
unlawfully interrogated employee Doug Mitchell about his union sym-
pathies because the interrogation was undertaken by a high-level man-
ager (Mr. Smith, the Respondent’s vice president/manufacturing), after
Mitchell was summoned to that manager’s office, in the context of
Order, as further modified herein, is set forth in full be-
low. 2
ORDER
The National Labor Relations Board orders that the
Respondent, Gaylord Chemical Company, LLC, Tusca-
loosa, Alabama, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the Union as the collective-bargaining representative of
unit employees in Tuscaloosa, Alabama.
(b) Failing and refusing to provide the Union with re-
quested information that is relevant and necessary for the
Union’s performance of its duties as a collective-
bargaining representative.
(c) Creating new unit job positions without first
providing the Union with notice and an opportunity to
bargain.
(d) Interrogating employees about their union sympa-
thies.
(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) Recognize and bargain on request with the Union
as the exclusive collective-bargaining representative of
telling Mitchell that he did not need a union. Smith was present at the
hearing, but did not testify. Again, in the absence of evidence provided
by Smith otherwise, Member Johnson would not overturn the judge’s
conclusion and incorporated credibility determinations that “[i]n these
circumstances, . . . Smith’s questions had the reasonably foreseeable
effect of discouraging employees from supporting the Union.” Finally,
Member Johnson notes that the Union provided evidence that, subse-
quent to the Respondent’s move, the Union solicited, and a majority of
employees signed, authorization cards. Member Johnson notes that,
although such practice is not required under the standard articulated in
Rock Bottom Stores, it may be a prudent way for a union to demonstrate
to the employer the representational wishes of employees following a
geographical relocation such as that presented in the instant case.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and in accordance with our recent
decision in Don Chavas LLC d/b/a Tortillas Don Chavas, 361 NLRB
101 (2014). We shall substitute a new notice to conform to the modi-
fied Order and in accordance with our decision in Durham School
Services, L.P., 360 NLRB 694 (2014).
Although the Respondent excepts to the judge’s recommended Or-
der, it does not specify that the judge’s recommended affirmative bar-
gaining order is improper. We therefore find it unnecessary to furnish a
specific justification for that remedy. SKC Electric, Inc., 350 NLRB
857, 862 fn. 15 (2007) (citing Scepter v. NLRB, 280 F.3d 1053, 1057
(D.C. Cir. 2002) (“a generalized exception to a remedial order is insuf-
ficiently specific to preserve a particular objection for appeal,” and in
the absence of particular exceptions the Board may issue an affirmative
bargaining order without stating a rationale)). See, e.g., Barstow Com-
munity Hospital, 361 NLRB 352, 352 1 fn. 4 (2014).
361 NLRB No. 67

772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining unit employees and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(b) Furnish the Union with the information that it re-
quested on August 31, September 23, and October 19,
2010.
(c) Upon the Union’s request, rescind or bargain over
the new unit position of lead shipper.
(d) Make unit employees whole for any loss of earn-
ings and other benefits they suffered as a result of the
unilateral creation of the new unit position of lead ship-
per, as set forth in the remedy section of the judge’s deci-
sion.
(e) Compensate employees for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar
quarters for each employee.
(f) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Tuscaloosa, Alabama, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
10, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices should be distributed electronical-
ly, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
3 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.”
rent employees and former employees employed by the
Respondent at any time since October 1, 2010.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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 vio-
lated 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 fail and refuse to recognize and bargain
with the United Steelworkers Union (the Union) as your
recognized collective-bargaining representative.
WE WILL NOT fail and refuse to provide the Union with
requested information that is relevant and necessary to
the Union’s performance of its duties as your collective-
bargaining representative.
WE WILL NOT create new unit job positions without
first affording the Union notice and an opportunity to
bargain.
WE WILL NOT question you about your union sympa-
thies.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL bargain with the Union on its request as the
exclusive collective-bargaining representative of bargain-
ing unit employees and, if an understanding is reached,
embody the understanding in a signed agreement.
WE WILL furnish the Union with the information that it
requested on August 31, September 23, and October 19,
2010, concerning your terms and conditions of employ-
ment.
WE WILL, on the Union’s request, rescind our creation
of the lead shipper position or bargain with the Union
over it.

GAYLORD CHEMICAL CO. 773
WE WILL make any unit employees whole, with inter-
est, for any loss of earnings and other benefits suffered as
a result of our unilateral creation of the lead shipper posi-
tion.
WE WILL compensate employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file a report with the Social Security
Administration allocating the backpay award to the ap-
propriate calendar quarters for each employee.
GAYLORD CHEMICAL CO., LLC

The Board’s decision can be found at
www.nlrb.gov/case/10–CA–038782 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.