361 N.L.R.B. 1171 (N.L.R.B. 2014)

Latino Express, Inc.

National Labor Relations Board - Board DecisionsDec 15, 2014

361 N.L.R.B. 1171 (N.L.R.B. 2014)

LATINO EXPRESS, INC. 1171 Latino Express, Inc. and Carol Garcia and Pedro Sal- gado and International Brotherhood of Team- sters, Local 777. Cases 13–CA–046528, 13–CA– 046529, and 13–CA–046634 December 15, 2014 DECISION AND ORDER BY MEMBERS HIROZAWA, JOHNSON, AND SCHIFFER On July 31, 2012, the Board issued a Decision and Or- der and Notice and Invitation to File Briefs in this pro- ceeding, which is reported at 358 NLRB 822. Thereaf- ter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Co- lumbia Circuit, and the General Counsel filed a cross- application for enforcement. At the time of the Decision and Order and Notice and Invitation to File Briefs, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. 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 appointments to the Board were not valid. Thereafter, the court of appeals vacated the Board’s Decision and Order and Notice and Invitation to File Briefs and remanded this case for fur- ther 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 Notice and Invitation to File Briefs, and we agree with the rationale set forth therein. Accordingly, we affirm the judge’s rulings, findings, and conclusions and adopt judge’s recommended Order to the extent and for the reasons stated in the Decision and Order and Notice and Invitation to File Briefs reported at 358 NLRB 822, which is incorporated herein by refer- ence and as amended below.1 1 In its now-vacated decision, the Board invited interested parties to file briefs addressing whether, in connection with an award of backpay, the Board should routinely require a respondent to (1) submit the ap- propriate documentation to the Social Security Administration so that when backpay is paid, it is allocated to the appropriate calendar quar- ters, and (2) reimburse a discriminatee for any excess Federal and State income taxes the discriminatee may owe in receiving a lump-sum backpay award covering more than 1 year. 358 NLRB 822, 822–823. After receiving supplemental briefs, the Board answered those ques- tions in the affirmative. Latino Express, Inc., 359 NLRB 518 (2012), reaffirmed in Don Chavas, LLC d/b/aTortillas Don Chavas, 361 NLRB ORDER The National Labor Relations Board orders that the Respondent, Latino Express, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall 1.Cease and desist from (a) Discharging or otherwise discriminating against employees because they engage in protected union or concerted activities, including supporting the Interna- tional Brotherhood of Teamsters, Local 777, or any other labor organization. (b) Coercively interrogating employees about their un- ion membership, activities, sympathies, or support. (c) Prohibiting employees from discussing their terms and conditions of employment. (d) Creating the impression that it is engaged in sur- veillance of its employees’ union or other protected con- certed activities. (e) Soliciting grievances from employees and promis- ing to remedy them in order to discourage employees from selecting union representation. (f) Promising improved benefits to employees in order to discourage employees from selecting union represen- tation. (g) Granting wage increases to employees in order to discourage employees from selecting union representa- tion. 101 (2014). Accordingly, we shall modify the judge’s recommended Order to conform with Tortillas Don Chavas. We shall also substitute a new notice to conform to the Order as modified and in accordance with Durham School Services, 360 NLRB 694 (2014). In addition, we find merit in the General Counsel’s exception to the judge’s failure to recommend that the notice be read aloud to employ- ees by the Respondent or a Board agent. Specifically, we find that this case merits a public reading of the notice by coowner and vice presi- dent, Henry Garduñio, or by a Board agent in the presence of Garduñio, to employees assembled on company time because “[t]he Respondent’s violations of the Act are sufficiently serious and widespread that the reading of the notice is necessary to enable employees to exercise their Section 7 rights free of coercion.” Carey Salt Co., 360 NLRB 201, 202 (2014). See, e.g., Homer D. Bronson Co., 349 NLRB 512, 515 (2007) (notice-reading remedy ordered where respondent’s senior manager threatened plant closure and job loss at meetings if employees voted for union representation), enfd. mem. 273 Fed.Appx. 32 (2d Cir. 2008). Garduñio was personally involved in the unlawful discharges of Carol Garcia and Pedro Salgado, and engaged in a number of other violations of the Act during the union organizing campaign by soliciting griev- ances from employees, interrogating an employee about his union support, and creating an impression of surveillance of union supporters. In those circumstances, we find that a reading of the notice by Gar- duñio, or in his presence, is appropriate “to dissipate as much as possi- ble any lingering effects of the Respondent’s unfair labor practices,” and will allow the employees to “fully perceive that the Respondent and its managers are bound by the requirements of the Act.” Homer D. Bronson Co., supra (citations omitted). If Garduñio is no longer an owner or officer of the Respondent, then the Respondent shall desig- nate another owner or officer to conduct or be present for the reading. 361 NLRB No. 137 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1172 (h) Threatening employees with discharge if they se- lect the Union or any other labor organization as their bargaining representative. (i) Threatening employees with closure of their work facility if they select the Union or any other labor organi- zation as their bargaining representative. (j) 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) Within 14 days from the date of this Order, offer Carol Garcia and Pedro Salgado full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. (b) Make Carol Garcia and Pedro Salgado whole for any loss of earnings and other benefits suffered as a re- sult of the discrimination against them, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (c) Compensate Carol Garcia and Pedro Salgado for the adverse tax consequences, if any, of receiving lump- sum backpay awards, and file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters for each employee. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges, and, within 3 days thereafter, notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place 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. (f) Within 14 days after service by the Region, post at its Chicago, Illinois facility copies of the attached notice marked “Appendix.”2 Copies of the notice in English and Spanish, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representative, shall be posted by the Re- 2 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.” spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate 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 September 20, 2010. (g) Within 14 days after service by the Region, hold a meeting or meetings, scheduled to ensure the widest pos- sible attendance, at which the attached notice is to be read to the employees by Respondent’s coowner and vice president, Henry Garduñio, or at the Respondent’s op- tion, by a Board agent in the presence of Henry Gar- duñio, with translation available. If Garduñio is no long- er an owner or officer of the Respondent, then the Re- spondent shall designate another owner or officer to con- duct or be present for the reading. (h) Within 21 days after service by the Region, file with the Regional Director for Region 13 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 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 discharge or otherwise discriminate against any of you for engaging in protected union or concerted activities, including supporting International LATINO EXPRESS, INC. 1173 Brotherhood of Teamsters, Local 777 (the Union), or any other labor organization. WE WILL NOT coercively question you about your un- ion membership, activities, sympathies, and/or support. WE WILL NOT prohibit you from discussing your terms and conditions of employment. WE WILL NOT create the impression that we are en- gaged in surveillance of your union or other protected concerted activities. WE WILL NOT solicit grievances from you and promise to remedy them in order to discourage you from selecting union representation. WE WILL NOT promise you improved benefits in order to discourage you from selecting union representation. WE WILL NOT give you wage increases in order to dis- courage you from selecting union representation. WE WILL NOT threaten to discharge or otherwise dis- criminate against any of you if you select the Union or any other labor organization as your bargaining repre- sentative. WE WILL NOT threaten you with closure of your work facility if you select the Union or any other labor organi- zation as your bargaining representative. 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, within 14 days from the date of the Board’s Order, offer Carol Garcia and Pedro Salgado full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Carol Garcia and Pedro Salgado whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus inter- est. WE WILL compensate Carol Garcia and Pedro Salgado for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharges of Carol Garcia and Pedro Salgado, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way. LATINO EXPRESS, INC. The Board’s decision can be found at www.nlrb.gov/case/13–CA–046528 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.