Northstar Memorial Group, LLC dba Skylawn Funeral Home, Crematory and Memorial Park

National Labor Relations Board - Board Decisions

Jul 30, 2020

369 N.L.R.B. 145 (N.L.R.B. 2020)

369 NLRB No. 145
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Northstar Memorial Group, LLC d/b/a Skylawn Fu-
neral Home, Crematory and Memorial Park and
Cemetery Workers, Golf Courses and Green At-
tendants, SEIU Local 265. Cases 20−CA−227245
and 20−CA−229015
July 30, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On August 23, 2019, Administrative Law Judge Sharon
Levinson Steckler issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Gen-
eral Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1 find-
ings, and conclusions only to the extent consistent with
this Decision and Order.2
The Respondent has been engaged in the operation of a
funeral home, cemetery, and memorialization business in
San Mateo, California, and employs a unit of
groundskeepers to maintain the cemetery. The judge
found, among other things, that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by unilaterally changing its groundskeepers’ work
schedules on two occasions. The judge also found that the
Respondent violated Section 8(a)(1) when its grounds su-
perintendent, Lorenzo Molina, asked employee Joel
Strube to remove a prounion sign from his motorcycle
and, subsequently, when Molina parked his truck in a way
that blocked the sign so it could not be seen by mourners
attending a burial service.
1 Despite the Respondent’s arguments to the contrary, we find that
the judge did not abuse her discretion in determining what sanctions to
impose for the Union’s noncompliance with the Respondent’s subpoe-
nas. Accordingly, we affirm the judge’s decision to exclude only GC
Exh. 14.
Further, we agree with the judge that the General Counsel did not vi-
olate the Respondent’s due process rights by arguing that the Respond-
ent’s unilateral changes were unlawful because its collective-bargaining
agreement with the Union had expired. In agreeing with the judge, how-
ever, we find it unnecessary to rely on the General Counsel’s questions
at the hearing regarding Bottom Line Enterprises, 302 NLRB 373, 374
(1991), enfd. mem. sub nom. Master Window Cleaning, Inc. v. NLRB,
15 F.3d 1087 (9th Cir. 1994).
2 We have amended the judge’s conclusions of law consistent with
our findings herein, and we have modified the judge’s recommended Or-
der consistent with our legal conclusions herein and in accordance with
For the reasons discussed below, we agree with the
judge that the Respondent violated the Act when it unilat-
erally changed employees’ work schedules. We disagree,
however, with the judge’s finding that the Respondent vi-
olated the Act when, after receiving a complaint from a
mourner, it took actions to prevent Strube’s sign from dis-
turbing those attending a burial service.
I. UNILATERAL CHANGES
The essential facts are not in dispute. Since at least
2011, the Respondent scheduled bargaining-unit employ-
ees to work Monday through Friday. The parties included
language in their most recent collective-bargaining agree-
ment (2013–2017) that gave the Respondent the flexibility
to schedule employees for five consecutive days within a
Sunday through Saturday time period.3 Despite this flex-
ibility, the Respondent continued its longstanding practice
of scheduling employees for a Monday through Friday
work week. The parties’ collective-bargaining agreement
expired December 31, 2017.
In February 2018,4 the parties entered negotiations for a
successor agreement. On August 16, as negotiations con-
tinued, General Manager Rich McCown announced at a
regular morning meeting with groundskeepers that the Re-
spondent was changing employees’ schedules. Under the
new schedule, three employees would work Monday to
Friday, three employees would work Tuesday to Saturday,
and three employees would work Wednesday to Sunday.
Later that morning, McCown emailed Union President
Gregorio Rodriguez about the change, stating:
I wanted to inform you that due to needs of our business,
we are adjusting our schedule slightly to a split shift, ef-
fective this Sunday. This will ensure we have the appro-
priate staffing every day of the week. If you have any
concerns, or would like to discuss, I am available any-
time. If you would like to meet today, tomorrow, Satur-
day, or Sunday, I can arrange that as well. The guys se-
lected their shifts this morning.
our recent decision in Danbury Ambulance Service, Inc., 369 NLRB No.
68 (2020). We shall substitute a new notice to conform to the Order as
modified.
3 The relevant contract language was as follows:
11.2 Regular Work Week. The regular work week at straight-time shall
consist of any five (5) consecutive eight (8) hour working days, Sunday
through Saturday. Employees may volunteer for assignment to a regu-
lar work week which includes Saturday or Sunday or both. If an insuf-
ficient number of qualified employees volunteer for such assignment,
assignment of qualified employees to a regular work week which in-
cludes Saturday or Sunday or both shall be made by inverse seniority
where the qualifications required to perform the work are approxi-
mately equal in the reasonable judgment of the employer.
4 Unless otherwise stated, all dates refer to 2018.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The Union objected to the schedule change and demanded to
bargain. McCown responded that he was available to discuss
the change but explained that the contractual language per-
mitted the Respondent to change the schedule in this way.
The Union replied that it disagreed with McCown’s interpre-
tation of the contract and again demanded to bargain. The
parties exchanged several emails in an unsuccessful attempt
to select a date on which to meet to discuss the schedule
change. Thereafter, on September 9, the Respondent unilat-
erally implemented the new schedule. Two weeks later, the
Respondent reverted to the original Monday through Friday
schedule, again unilaterally.
As mentioned above, the judge found that the Respond-
ent’s unilateral implementation of the scheduling changes
violated the Act. On exceptions, the Respondent argues
that the expired collective-bargaining agreement author-
ized it to make these changes. In support of its position,
the Respondent cites the Board’s decision in MV Trans-
portation, Inc., 368 NLRB No. 66 (2019), which issued
after the judge’s decision in this case. In MV Transporta-
tion, the Board adopted the contract coverage standard for
determining whether a collective-bargaining agreement
permits an employer’s unilateral action and decided to ap-
ply it retroactively to all pending cases. Id., slip op. at 2,
12. Under the contract coverage standard, the Board will
“examine the plain language of the collective-bargaining
agreement to determine whether action taken by an em-
ployer was within the compass or scope of contractual lan-
guage granting the employer the right to act unilaterally.”
Id., slip op. at 2. Where the action at issue is covered by
contract language, the Board will conclude that “the agree-
ment . . . authorized the employer to make the disputed
change unilaterally, and the employer will not have vio-
lated Section 8(a)(5).” Id., slip op. at 11.
After MV Transportation issued, however, we ad-
dressed whether the contract coverage standard applies to
changes made, as in this case, after a collective-bargaining
agreement expires. See Nexstar Broadcasting, Inc. d/b/a
KOIN-TV, 369 NLRB No. 61 (2020). In Nexstar, the re-
spondent changed unit employees’ terms and conditions
of employment—including its work schedule posting pro-
cedure—following expiration of its collective-bargaining
agreement with the union. It argued that, because the
5 Under Katz, an employer has a duty to maintain the status quo once
a labor contract expires. This obligation arises out of the Act, rather than
from the parties’ contract. After a contract expires, “terms and condi-
tions continue in effect by operation of the NLRA. They are no longer
agreed-upon terms; they are terms imposed by law.” Litton, 501 U.S. at
206.
6 We agree with the judge that the Union did not waive its right to
bargain by proposing to bargain about the schedule change at the parties’
next contractual bargaining session, which was scheduled for approxi-
mately three weeks after the Respondent’s August 16 email, rather than
language in the expired contract covered the changes at
issue, those changes were lawful under MV Transporta-
tion. The Board rejected the respondent’s contention,
holding that “provisions in an expired collective-bargain-
ing agreement do not cover postexpiration unilateral
changes unless the agreement contained language explic-
itly providing that the relevant provision would survive
contract expiration.” Id., slip op. at 2. Because the par-
ties’ contract did not contain any such language, the Board
found that the respondent had a statutory duty to maintain
the status quo under NLRB v. Katz, 369 U.S. 736 (1962),
and Litton Financial Printing Div. v. NLRB, 501 U.S. 190
(1991).5 It ultimately found that the respondent failed to
do so and that the unilateral changes violated Section
8(a)(5) and (1).
In the present case, although Section 11.2 of the expired
contract gave the Respondent the flexibility to change the
employees’ schedules, the contract does not expressly pro-
vide that this section would survive the expiration of the
contract. Therefore, as in Nexstar, we find that the expired
agreement does not cover the changes at issue. Further,
we find, as the judge did, that the Monday-to-Friday work
schedules were a past practice and, as such, an established
term and condition of employment: the Respondent main-
tained this schedule for a total of seven years. We also
agree with the judge that the Respondent’s changes to that
past practice were material, substantial, and significant,
and that the Respondent deprived the Union of its right to
bargain over the changes before they were implemented
by the Respondent.6 Accordingly, we conclude that the
Respondent violated Section 8(a)(5) and (1) of the Act
twice by unilaterally changing the work schedules of its
groundskeepers.7
II. PROUNION SIGN
The second unfair labor practice issue this case presents
is whether the judge correctly found that the Respondent
violated Section 8(a)(1) of the Act when Grounds Super-
intendent Lorenzo Molina asked employee Joel Strube to
remove a prounion sign from his motorcycle while it was
parked on cemetery grounds and, subsequently, moved his
own truck so that the sign would not be visible to mourn-
ers attending a burial service. We disagree with the
insisting on bargaining immediately. We further note that the Board has
found a fait accompli precluding a waiver finding under similar circum-
stances. See, e.g., Harley-Davidson Motor Co., 366 NLRB No. 121, slip
op. at 3 (2018).
7 Given our finding that the Respondent unlawfully failed to bargain
over its decisions to change employees’ schedules, we find it unneces-
sary to pass on the judge’s additional finding that the Respondent unlaw-
fully failed to bargain over the effects of those decisions. See Grondorf,
Field, Black & Co., 318 NLRB 996, 997 (1995), enfd. in part 107 F.3d
882 (D.C. Cir. 1997).
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 3
judge’s finding that Molina’s actions violated the Act and,
accordingly, dismiss these allegations.
Groundskeepers usually park their personal vehicles in
“yard parking,” which is adjacent to their storage facility,
break room, and lockers. On May 3, Strube parked his
motorcycle in the first space in yard parking, directly
across from an area called “Vets X,” where a burial service
was taking place. On his motorcycle, Strube displayed a
sign that read: “Unfair wage proposals for senior employ-
ees.” Mourners attending the service were troubled by the
sign and complained to the Respondent’s family service
advisor, who then called Molina, requesting his presence
at the burial site. At some point thereafter, Molina drove
his truck to yard parking and parked in a way that blocked
the mourners’ view of the sign.8 Once Molina arrived at
the burial site, he spoke directly with a family member
who reiterated the family’s concerns about the sign, and
he informed the family that he would address the issue. At
some point after becoming aware of the family’s concerns,
Molina asked Strube to remove the sign from his motor-
cycle, but Strube declined to do so. Leaving his truck
where it was, Molina assisted with the staging of the cas-
ket and attended the service. When the service ended, Mo-
lina moved his truck so that it was no longer blocking the
sign.
On May 7 and 11, Molina again temporarily parked his
vehicle in front of Strube’s motorcycle so that the sign was
not visible to mourners attending burial services. How-
ever, the record does not contain any additional details
surrounding these later incidents. Aside from these three
limited occasions, Strube openly displayed his sign in yard
parking without incident.
The judge held that the Respondent’s request for Strube
to remove the sign on May 3 was unlawfully coercive.
The judge also held that, by parking in front of Strube’s
motorcycle on May 3, 7, and 11, the Respondent unlaw-
fully prevented Strube from soliciting support from the
Respondent’s patrons and other employees. We disagree.
No Board precedent directly addresses the circum-
stances presented here. In analyzing this issue, therefore,
we are guided by cases dealing with analogous circum-
stances: solicitation in immediate patient care areas of
hospitals. The Supreme Court has long emphasized that
hospitals have a special duty to maintain a peaceful and
relaxed atmosphere in order to facilitate the healing pro-
cess. In NLRB v. Baptist Hospital, Inc., the Court ob-
served that
8 The judge recited both Strube’s and Molina’s versions of these
events in her decision. In doing so, the judge stated that Molina testified
that he knew the family was upset by the sign before he went to the burial
site and parked his truck. In fact, Molina testified that he did not know
the family was upset by the sign until after he had parked and spoken
[h]ospitals, after all, are not factories or mines or assem-
bly plants. They are hospitals, where human ailments
are treated, where patients and relatives alike often are
under emotional strain and worry, where pleasing and
comforting patients are principal facets of the day’s ac-
tivity, and where the patient and his family—irrespec-
tive of whether that patient and that family are labor or
management oriented—need a restful, uncluttered, re-
laxing, and helpful atmosphere, rather than one remind-
ful of the tensions of the marketplace in addition to the
tensions of the sick bed.
442 U.S. 773, 783 fn. 12 (1979), citing Beth Israel Hospital
v. NLRB, 437 U.S. 483, 509 (1978) (Justice Blackmun, con-
curring).
The Board has similarly “recognize[d] that the primary
function of a hospital is patient care and that a tranquil at-
mosphere is essential to the carrying out of that function.”
St. John’s Hospital, 222 NLRB 1150, 1150 (1976), enfd.
in relevant part 557 F.2d 1368 (10th Cir. 1977). For that
reason, “hospitals may be justified in imposing somewhat
more stringent prohibitions on solicitation than are gener-
ally permitted.” Id. For instance, prohibition of solicita-
tion may be warranted, even on nonworking time, “in
strictly patient care areas, such as the patients’ rooms, op-
erating rooms, and places where patients receive treat-
ment, such as x-ray and therapy areas,” because “[s]olici-
tation at any time in those areas might be unsettling to the
patients—particularly those who are seriously ill and thus
need quiet and peace of mind.” Id. Based on these con-
siderations, the Board has found that restrictions on Sec-
tion 7 activity in immediate patient care areas are pre-
sumptively valid. See, e.g., Long Beach Memorial Medi-
cal Center, Inc. d/b/a Long Beach Memorial Medical Cen-
ter & Miller Children’s and Women’s Hospital Long
Beach, 366 NLRB No. 66, slip op. at 2 (2018), enfd. 774
Fed.Appx. 1 (D.C. Cir. 2019).
In our view, funeral homes and cemeteries, like hospi-
tals, constitute environments where the need for “quiet
and peace of mind” can justify more stringent prohibitions
on solicitation. Mourners are often under emotional strain
and worry, and providing comfort and support to those
suffering a loss is a principal facet of mortuary services.
As in the immediate patient care areas of a hospital, a tran-
quil atmosphere is essential to the carrying out of this
function. And as in immediate patient care areas, solicita-
tion of support in a labor dispute from mourners attending
a burial service is an unsettling reminder of the tensions of
with the family member face-to-face. As the Respondent points out, this
factual issue goes to whether Molina intentionally blocked the sign when
he parked his truck. We need not resolve this question, however, because
even if Molina intentionally blocked the sign, it does not affect our res-
olution of this issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
the marketplace. This feeling was clearly evidenced by
the request of a grieving family for Strube’s sign to be re-
moved from view during the burial ceremony of their
loved one. Consistent with these principles, we find that
the Respondent could lawfully prohibit Strube from solic-
iting such support during a burial service attended by
mourners at a burial site from which Strube’s sign was
plainly visible. We note that there was no showing that
the Respondent allowed the display of other insignia or
signs in similar circumstances or otherwise selectively
banned Section 7–related material. Accordingly, the May
3 request that he remove his sign, and the instances in
which the Respondent blocked mourners’ view of the
sign, were lawful as well.
In dismissing these allegations, we additionally rely on
the limited scope of the restrictions imposed by the Re-
spondent on Strube’s Section 7 activity. As discussed
above, the Respondent allowed Strube to display his sign
before and after the three burial services and at other times
as well. Cf. Baptist Hospital, supra at 785 (observing that
“the availability of one part of a health-care facility for or-
ganizational activity might be regarded as a factor re-
quired to be considered in evaluating the permissibility of
restrictions in other areas of the same facility” (internal
quotations omitted)). Thus, the impact on Section 7 activ-
ity of the Respondent’s challenged conduct was relatively
minimal, and the Act does not require employers to afford
employees “the most convenient or most effective means”
of conveying their message, particularly when the means
chosen trench on the rights and interests of others. Cae-
sars Entertainment d/b/a Rio All-Suites Hotel and Casino,
368 NLRB No. 143, slip op. at 4 (2019) (internal quotation
omitted); Republic Aviation Corp. v. NLRB, 324 U.S. 793,
797–798 (1945) (holding that the Board must “work[] out
an adjustment between the undisputed right of self-organ-
ization assured to employees under the Wagner Act and
the equally undisputed right of employers to maintain dis-
cipline in their establishments. Like so many others, these
rights are not unlimited in the sense that they can be exer-
cised without regard to any duty which the existence of
rights in others may place upon employer or employee”).9
Therefore, we conclude that the Respondent did not vio-
late the Act by requesting that its employee remove a pro-
union sign or by blocking the view of that sign from
mourners at a burial site.
9 International Business Machines Corp., 333 NLRB 215 (2001),
enfd. 31 Fed.Appx. 744 (2d Cir. 2002), Advance Auto Parts Distribution
Center, 322 NLRB 910, 912 (1997), and Schwan’s Sales Enterprises,
Inc., 257 NLRB 1244, 1247–1249 (1981), enfd. 687 F.2d 163 (6th Cir.
AMENDED CONCLUSIONS OF LAW
Delete paragraphs (6) and (7) and renumber the subse-
quent paragraphs accordingly.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Northstar Memorial Group, LLC d/b/a Skylawn
Funeral Home, Crematory and Memorial Park, San
Mateo, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a ) Changing terms and condition of employment of its
unit employees, including shift schedules, without first
notifying the Union and giving it an opportunity to bar-
gain.
(b) 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) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of em-
ployees in the following bargaining unit:
Full-time and regular part-time cemetery employees, in-
cluding grounds maintenance employees, mechanics,
mausoleum workers, and crematorium workers em-
ployed by the Employer at its Skylawn Memorial Park
California facility, excluding all managerial employees,
salespersons, morticians, embalmers, office clerical em-
ployees, all other employees, guards and supervisors, as
defined in the National Labor Relations Act, as
amended.
(b) Upon request by the Union, and to the extent, if any,
it has not already done so, rescind the changes in the terms
and conditions of employment for its unit employees that
were unilaterally implemented in September 2018.
(c) Make affected employees whole for any loss of
earnings and other benefits suffered as a result of the Re-
spondent’s unilateral changes, in the manner set forth in
the remedy section of the decision.
(d) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 20,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
1982), cited by the judge, all involved outright prohibitions on the dis-
play of union insignia or messages on the employer’s premises and are
thus readily distinguishable.
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 5
backpay awards to the appropriate calendar year for each
employee.
(e) Preserve and, within 14 days of request, or such ad-
ditional time as the Regional Director may allow for good
cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and re-
ports, and all other records, including an electronic copy
of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this
Order.
(f) Post at its San Mateo, California facility copies of
the attached notice marked “Appendix.”10 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 20, after being signed by Respondent’s authorized
representative, shall be posted by Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and or
other electronic means, if Respondent customarily com-
municates with its employees by such means. Reasonable
steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other ma-
terial. If Respondent has gone out of business or closed
the facility involved in these proceedings, Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by Respondent at any time since September 9,
2018.
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 20 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that Respondent has taken to comply.
II IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. July 30, 2020
______________________________________
John F. Ring, Chairman
10 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated 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 ac-
tivities.
WE WILL NOT change your terms and conditions of em-
ployment, including your shift schedules, without first no-
tifying the Union and giving it an opportunity to bargain.
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, before implementing any changes in wages,
hours or other terms and conditions of employment of unit
employees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
our employees in the following bargaining unit:
Full-time and regular part-time cemetery employees, in-
cluding grounds maintenance employees, mechanics,
mausoleum workers, and crematorium workers em-
ployed by the Employer at its Skylawn Memorial Park
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
California facility, excluding all managerial employees,
salespersons, morticians, embalmers, office clerical em-
ployees, all other employees, guards and supervisors, as
defined in the National Labor Relations Act, as
amended.
WE WILL, on request by the Union, and to the extent we
have not already done so, rescind the schedule changes for
our bargaining unit employees that were unilaterally im-
plemented in September 2018 and restore the status quo
ante that existed prior to the change until such time as we
have bargaining with the Union to an agreement or im-
passe.
WE WILL make affected employees whole for any loss
of earnings and other benefits suffered as the result of our
unlawful unilateral changes to your work schedule, plus
interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 20, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar year for each employee.
NORTHSTAR MEMORIAL GROUP, LLC
D/B/A SKYLAWN FUNERAL HOME,
CREMATORY AND MEMORIAL PARK
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-227245 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
David Reeves, Esq., for the General Counsel.
Ronald J. Holland and Michael Giambona, Esqs., counsel for
Respondent.
1 All dates occur in 2018 unless otherwise specified.
2 Respondent’s initial posthearing brief contended that General Coun-
sel changed its theory of the case regarding the 8(a)(5) allegations. In an
abundance of caution, Respondent was offered the opportunity either to
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge.
Charge 20–CA–227245 filed by Charging Party Cemetery
Workers, Golf Courses and Green Attendants, SEIU Local 265
(the Union) against Respondent Northstar Memorial Group,
LLC d/b/a Skylawn Funeral Home, Crematory and Memorial
Park (Respondent) on September 12, 2018.1 On October 10, the
Union filed charge 20–CA–229015 against Respondent. Gen-
eral counsel issued a complaint in 20–CA–227245 on December
31 and thereafter consolidated the Complaint with 20–CA–
229015 on March 6, 2019 (consolidated complaint).
A trial was conducted on May 14 and 15, 2019, in San Fran-
cisco, California. Counsel for the General Counsel and the Re-
spondent filed posttrial briefs2 in support of their positions,
which I have carefully considered.
On the entire record, I make the following findings, conclu-
sions of law, and recommendations.
I. JURISDICTION
Respondent admits, and I find, it has been a limited liability
company with an office and place of business in San Mateo, Cal-
ifornia (Respondent’s facility) and has been engaged in the op-
eration of funeral homes and cemeteries. In conducting its oper-
ations during the 12-month period ending December 31, 2018,
Respondent derived gross revenues in excess of $500,000. It
also purchased and received at its San Mateo, California facility
goods valued in excess of $5000 directly from points outside the
State of California. At all material times, Respondent has been
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce
and that the Board has jurisdiction of this case, pursuant to Sec-
tion 10(a) of the Act.
II. RESPONDENT’S FACILITIES AND OPERATIONS
Skylawn ‘s cemetery (Respondent’s facility or facility) covers
approximately 505 acres, which include a funeral home, burial
grounds, a crematorium, a mausoleum, and space for expansion.
Respondent serves a diverse population, each with its own cus-
toms and traditions for burial and/or memorials. The facility op-
erates 7 days a week. Need for its services is unpredictable, as
some faiths require immediate burials. Some may have long
vehicle processionals snaking through the grounds of the facility.
Burial areas are called gardens.
Visitors to the facility may park at funeral home, which houses
4 chapels, or park near the “garden” area of the burial of their
loved one. The funeral home could have 4 or more services sim-
ultaneously. Each of two chapels hold over 150 persons.
Rich McCown has served as the facility’s general manager
since September 11, 2017. (Tr. 160.)3 He previously worked for
reopen the record or brief the issue. Respondent elected to brief the mat-
ter.
3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s exhibit; “GC Exh.” for General Coun-
sel’s exhibit; “GC Br.” for the General Counsel’s brief; “R. Br.” for the
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 7
Northstar Memorial Group,4 the owner of the facility, as a con-
struction manager for various projects, including one at Re-
spondent’s facility). McCown previously had dealings with the
facility for construction work and became general manager ap-
proximately 1 year before hearing. As general manager,
McCown manages the financial records and collective-bargain-
ing relationship.
Reporting to McCown is Lorenzo Molina, the grounds super-
intendent, who has held the position for approximately 2 years.
Molina manages the groundskeepers and their day to day sched-
ules. Molina worked as acting superintendent and assistant su-
perintendent before becoming the grounds superintendent. Each
morning Molina conducts a morning meeting with the
groundskeepers to make announcements; occasionally McCown
also attends. Molina also contacts the groundskeepers by radio.
The groundskeepers maintain the grounds and install memo-
rials and headstones. A few of the groundskeepers operate back-
hoes and dirt haulers, which are necessary for opening and clos-
ing graves. One employee also operates the crematorium. The
size of the bargaining unit has been as high as 14 employees. As
of the hearing, Respondent employed 8 groundskeepers.
III. THE PARTIES COLLECTIVE-BARGAINING RELATIONSHIP
Since 2011, the Union represents Respondent’s groundskeep-
ing employees in the following bargaining unit:
Full-time and regular part-time cemetery employees, including
grounds maintenance employees, mechanics, mausoleum
workers, and crematorium workers employed by the Employer
at its Skylawn Memorial Park California facility, excluding all
managerial employees, salespersons, morticians, embalmers,
office clerical employees, all other employees, guards and su-
pervisors, as defined in the National Labor Relations Act, as
amended.
(GC Exh. 2, Sec. 2.)
Respondent and the Union entered into a collective-bargain-
ing agreement, effective January 1, 2013, through December 31,
2017. The parties did not extend the contract. Since about Feb-
ruary, the parties entered negotiations for a successor agreement.
The last negotiation session took place in October. During nego-
tiations for the 2013–2017 agreement and current negotiations,
Respondent attorney Holland is the chief negotiator.5
Gregorio Rodriguez is the local union’s president. Joel Strube
serves as the bargaining unit’s shop steward and member of the
negotiating committee. Strube, a groundskeeping caretaker and
backhoe operator, has worked for Respondent for 8 years. The
Union has a business agent, John Martin, who was not called by
either party to testify.
Respondent’s Brief, and “R. Supp. Br” for Respondent’s supplemental
brief. Although I have included numerous citations to the record to high-
light particular testimony or exhibits, my findings and conclusions are
based not solely on the evidence specifically cited, but rather on my re-
view and consideration of the entire record.
4 Northstar purchased the Skylawn property in 2012. A collective-
bargaining agreement was in effect from
5 For the purposes of negotiations, Holland has actual authority to
bind the principal and is Respondent’s agent. Long Island Day Care
Services, 303 NLRB 112, 128 (1991).
IV. SUBPOENA DUCES TECUM ISSUES
At hearing, I excluded three General Counsel Exhibits (GC
Exhs. 14 through 16), from admission. I uphold my rulings on
these exhibits.
A. The Union Fails to Produce Any Documents in Response to
Respondent’s Subpoena
Respondent issued two subpoenas duces tecum to the Union
for pertinent documents. (R. Exhs. 1 and 2.) The subpoenas
sought documents relevant to the matters at issue, such as bar-
gaining notes and evidence regarding parking issues. At the be-
ginning of the hearing, Respondent requested compliance with
the subpoenas. The requested documents included bargaining
notes related to the 8(a)(5) allegation and documents related to
the allegations that Respondent promulgated new parking rules
in response to Union activity and made threats to employees
about the parking.
Union President Rodriguez admitted he received the subpoe-
nas but did nothing to look for any documents requested.6 Nor
did the Union or Rodriguez file any motion to quash.
Rodriguez testified he texted frequently with Strube, a Gen-
eral Counsel witness and shop steward, but the conversations
were not related to the issues in the case. (Tr. 151.) He stated
he probably had texts in his telephone but claimed they were not
pertinent to the issues. Rodriguez then admitted some of the
texts were relevant but did not print out for review or redact. (Tr.
152–153.) Rodriguez did not contact Strube about the subpoenas
either.
Strube kept track of the events by writing notes in a notebook
and through phone calls and text messages with Rodriguez. The
relevant notes in the notebook were dated February 2 through
October 8 in a single black notebook. Copies were presented to
Respondent as part of the Jencks statements, and were ostensibly
covered by Respondent’s subpoena to the Union. Rodriguez, the
recipient of the subpoenas, made no search whatsoever, believ-
ing no documents were responsive yet knowing he had text mes-
sages from Strube that potentially could be responsive.
B. General Counsel Exhibit 14 Is Excluded as Sanction for Un-
ion’s Failure to Produce Documents
General Counsel offered Strube’s transcribed texts as General
Counsel Exhibit 14 when Rodriguez was not yet excused as a
witness. Strube already completed his direct testimony and
cross-examination. I offered to allow Strube to be a rebuttal wit-
ness about the document and General Counsel then rested. (Tr.
157–158.) During rebuttal, General Counsel offered General
Counsel Exhibit 14 again. Respondent argued that it was not
appropriate rebuttal testimony and was also hearsay. I rejected
6 General Counsel entered into evidence an email chain recovered by
a computer expert, which Rodriguez provided it to the Board agent for
his affidavit. This document was presented only during Rodriguez’s tes-
timony and not presented to Respondent upon request at the beginning
of the hearing. Otherwise Rodriguez did not recheck his email folders
for that document or other documents responsive to the subpoena. (Tr.
155–156.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
the document (GC Exh. 14) and asked the parties to brief the
matter.7
The recipient of a subpoena duces tecum has an obligation to
make a reasonable search for responsive documents, whether in
paper or electronic form. Starbucks Coffee Co., Case 01–CA–
177856, 2017 WL 2241023 (NLRB), slip op. at 1 fn. 1 unpub.
dec. (2017). Also see Reinsdorf v. Skechers USA, Inc., 296 FRD
604, 614 (2013) (producing party is supposed to place reasonable
construction and make reasonable and diligent searches for re-
sponsive documents). The requesting party, here Respondent,
may request relevant documents in the responding party's con-
trol, so long as the request describes the desired items with “rea-
sonable particularity.” Mailhoit v. Home Depot, U.S.A, Inc., 285
F.R.D. 566, 569 (C.D. Calif. 2012). Respondent, as the request-
ing party for the subpoenas, proved its burden to demonstrate
noncompliance. Sisters' Camelot, 363 NLRB No. 13, slip op. at
8 (2015), citing R.L. Polk & Co., 313 NLRB 1069, 1069–1070
(1994), affd. sub nom. Auto Workers Local 174, Autoworkers v.
NLRB, 74 F.3d 1240 (6th Cir. 1996).
The administrative law judge has authority to sanction parties
who fail to comply with the Board subpoena and is a matter of
the judge's discretion. Teamsters Local 917 (Peerless Importers,
Inc.), 345 NLRB 1010, 1011–1012 (2005). I uphold my ruling
to exclude General Counsel Exhibit 148 as a sanction for the Un-
ion’s failure to provide any documents in response to the sub-
poenas. M.D. Miller Trucking & Topsoil, Inc., 361 NLRB 1225,
1225 fn. 1 and 1229 (2014), enfd. 728 Fed. Appx. 2 (DC Cir.
2018). The Union did not file a motion to quash Respondent’s
subpoenas. The record amply demonstrates the Union failed to
make any efforts to comply with Respondent’s subpoena re-
quests as required. McAllister Towing, 341 NLRB 394 (2004),
enfd. 156 Fed. Appx. 386 (2d Cir. 2005).9 The combination of
the Union’s failure to file a motion to quash and failure to con-
duct any search objectively rises to the level of a refusal to timely
provide Respondent information it needed to conduct the hear-
ing.
At hearing General Counsel defended the Union’s failure to
produce Union documents in General Counsel’s case in chief as
nonprejudicial. General Counsel does not get to pick and choose
what the Union should supply in response to Respondent’s sub-
poenas to the Union and parse it out as General Counsel desires.
Had the roles been reversed, General Counsel and/or the Union
would have maintained it was prejudiced in preparation of its
case and demanded sanctions. Shamrock Foods Co., 366 NLRB
No. 117, slip op. at 1 fn. 1 and slip op. at 15-16 fn. 29 (2018),
enfd. __ Fed. Appx. __, slip op. at 2-3 (unpub.) (D.C. Cir. July
12, 2019) (sanctions against employer).
7 Despite my direction that the parties include their arguments in their
respective posthearing briefs, General Counsel made an earlier, separate
motion to accept the rejected exhibits. This ruling should be considered
a denial of General Counsel’s motion.
8 GC Exh. 14 also is incomplete. The texts also included a number of
photographs Strube allegedly took of his motorcycle displaying signs,
but the photographs are not shown in the transcribed texts or attached to
the transcription.
9 I find that whatever documents were presented to Respondent dur-
ing General Counsel’s case do not substitute for the Union performing a
diligent search. The Union failed to provide and is not considered a late
A variety of sanctions are available against a charging party
who refuses to produce documents. Teamsters Local 917 (Peer-
less), 345 NLRB at 1011.10 Respondent requested that Strube’s
testimony be stricken, which I find too severe. Consistent with
McAllister and other Board decisions, I reject General Counsel
Exhibit 14 as the information contained in the text messages held
by the Union. The Union apparently had the complete docu-
ment, including the photographs contained within the text mes-
sages, and could have corroborated Strube’s testimony. See
Shamrock Foods Co., supra.11
C. General Counsel Exhibits 15 and 16 Remain Rejected
Also offered during General Counsel’s rebuttal were two ad-
ditional exhibits, both of which were undated photographs of
Strube’s motorcycle with signs (GC Exh. 15 and 16). General
Counsel offered that the photographs showed that Strube parked
in certain areas with the signs on certain days. (GC Exhs. 15 and
16.) I rejected those as improper rebuttal evidence because
Strube testified to what his signs said during his direct testimony
and the photographs should have been presented at that time.
Bethlehem Temple Learning Center, Inc., 330 NLRB 1177 fn. 1
(2000) (ALJ did not abuse discretion by rejecting exhibits pre-
sented in rebuttal when the exhibits could have been presented
earlier). Ironically, General Counsel presented one photograph
in its direct examination of Strube. (GC Exh. 4.) I find it unnec-
essary to admit the pictures on those grounds.
Additionally, Strube’s direct testimony demonstrated
knowledge of certain facts—where he parked, when he parked
there, what the signs said, when he could so recall. Therefore,
Strube’s testimony does not require the pictures, as they are not
the best evidence. Rodriguez v. Señor Frog de la Isla, Inc., 642
F.3d 28, 33–34 (2011); Fed. R. Evid. 1002 (advisory notes—
event may be proved by nondocumentary evidence, even when
written record exists). Also see 2 MCCORMICK ON EVID. §234
(7th ed.) (June 2016 update).
V. GROUNDKEEPERS’ PARKING AND STRUBE’S SIGNS ON HIS
MOTORCYCLE
The complaint alleges the following violation of Section
8(a)(1):
Complaint allegation ¶9: About May 2, 2018, Respondent, by
Richard McCown and Lorenzo Molina, at Respondent’s facility,
orally promulgated and since then has maintained a rule requir-
ing employees to park their personal vehicles in the grounds em-
ployees parking lot.
Complaint allegation ¶10(a): About May 3, 2018, Respond-
ent, by Molina, in a phone conversation, told employees to
production. Compare People’s Transportation Service, 276 NLRB 169,
225 (1985).
10 In Teamsters, supra, the charging party refused to provide a subpoe-
naed document without a protective agreement. The judge dismissed the
complaint for charging party’s failure to produce. The Board reversed,
finding the administrative law judge abused his discretion by dismissing
the complaint instead of taking less severe sanctions.
11 On July 17, 2019, Respondent moved to strike all portions of Gen-
eral Counsel’s brief that relied upon rejected GC Exh. 14. As I do not
rely upon rejected GC Exh. 14 for any of my findings, the motion is
moot.
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 9
remove the protest signs placed on their personal vehicles.
Complaint allegation ¶10(b): About May 3 and May 7, 2018,
Respondent, by Molina, in the grounds’ employee parking lot,
parked his truck in front of employees’ vehicles displaying pro-
test signs.
Complaint allegation ¶11(a): About May 14, 2018, Respond-
ent, by McCown, orally promulgated a rule prohibiting employ-
ees from parking during their lunch breaks in the upper section
or middle section of the Funeral Home parking lot or at the Re-
flection circle nearby the Funeral Home.
Complaint allegation ¶11(b): About May 16, or May 17, 2018,
Respondent, by McCown, orally promulgated and since then has
maintained a rule prohibiting employees from parking their ve-
hicles during breaks anywhere other than the grounds employee
parking lot.
A. Facts
1. Parking at Respondent’s facility
Respondent has no written rules for parking. During the
workday, groundskeepers use smart motorized carts called “ga-
tors” to ride around the facilities, not their personal vehicles.12
The groundskeeper parking and break facilities are almost at the
opposite end of the property, away from the funeral home and
sales offices.
Groundskeepers usually park their personal vehicles in yard
parking, which is an area adjacent to their storage facility, break
room and lockers. Strube testified that before the incidents in
May 2018, he always parked in yard parking. (Tr. 40.) This
location also is where the groundskeepers’ clock in and out and
hold morning meetings. Groundskeepers do not eat lunch in any
of the garden areas because they would be eating in front of the
families and visitors. (Tr. 192.) Yard parking has 11 spaces, but
only 9 available for employee parking. On the facility map, it is
located towards the end of Cypress Circle Drive across from bur-
ial area Vets X (an area dedicated for veterans), and close to Gan
Hazikaron (an area dedicated for Jewish burials).
Groundskeepers’ vehicles in yard parking were plagued with
dirt, sap and pollen. Strube testified that everyone was parking
in yard parking, but when groundskeepers drove new cars, they
parked outside of the lots. (Tr. 89–90.) Strube frequently rode
his motorcycle to work and usually parked it in the groundskeep-
ers’ lot. Strube testified that groundskeepers Alex Jara parked
on the curb at Gan Hazikaron. Groundskeeper Candalario Ruiz
parked or near Ridgeview Island every day for two years, includ-
ing the Saturday before hearing. Strube contended that they
parked there before May 1 as well. Strube denied that anyone
was told not to park in certain areas until he parked in Serenity
Circle; however, if a service was taking place, they automatically
moved vehicles without being told to do so. (Tr. 91.) Strube did
not testify whether Molina or McCown ever saw these vehicles
parked in areas other than yard parking or ignored it when they
did. (Tr. 196.)
12 The facility has additional employee parking on a lower level near
the funeral home, but that parking is limited to those who work within
the funeral home.
13 Respondent characterizes Strube’s sign, posted on his motorcycle,
as an unmanned picket sign. However, the record reflects that
When Molina was hired, he learned that Respondent made a
priority of keeping the roadways within the facility open and
avoiding a backup. (Tr. 257.) Employees are not supposed to
park in Reflection Circle or the upper parking lot at the funeral
home. The upper lot is specifically designated “guest parking
only.” (Tr. 187.) Groundskeeping employees do not regularly
park in these areas because parking is left open for visitors and
they usually do not work or use the breakroom in the funeral
home. McCown testified that groundskeeping employees did not
park in the Crystal Springs parking because Respondent’s vans
and service vehicles park there. Respondent’s vehicles are also
in a garage lot, which also houses some non-groundskeeper em-
ployee parking and has access for deliveries. (Tr. 189.)
Molina testified that, even before McCown was hired, he cor-
rected groundskeepers when they parked outside of yard parking.
When he saw a groundskeeper’s personal vehicle parked outside
the yard parking, he called the offending groundskeeper to move
the vehicle. (Tr. 263.) About 4 groundskeepers sometimes
parked near yard parking on an adjacent road. However, Molina
instructed those groundskeepers to move their vehicles back to
yard parking. Molina cited a specific instance in which two
groundskeepers’ vehicles blocked a hearse, stopping the proces-
sion to the grave. (Tr. 260–261.) The following morning, Mo-
lina reminded the groundskeepers where they were supposed to
park. (Tr. 262.) Molina did not report all instances of violations
to McCown. (Tr. 264–265.)
2. Strube displays signs on his motorcycle in non-
groundskeeping parking areas
On about May 1, Strube determined to display a sign on his
motorcycle to publicize his frustration with ongoing collective-
bargaining agreement negotiations. (Tr. 36–37.) The motorcy-
cle, parked in yard parking, displayed the sign “Unfair wage pro-
posals for senior employees.” (Tr. 37–38; GC Exh. 4.) No one
from management contacted Strube about his sign that day. (Tr.
39, 300.)13
On May 2, instead of parking in the usual yard parking, Strube
parked his motorcycle on the curb of Serenity Circle, a large bur-
ial area towards the center of the facility, with the sign posted on
the motorcycle. (Tr. 39–40; GC Exh. 5.) Strube testified that
the motorcycle’s back tire touched the curb, which made it “le-
gally parked.” (Tr. 40.) He decided that his sign would receive
more visibility if parked in Serenity Circle. (Tr. 40–41.)
Strube and the other caretakers attended their morning meet-
ing at 8 a.m. Shortly thereafter, Strube began working with an-
other caretaker to open and close a grave. Molina received noti-
fication that Strube’s motorcycle was parked at Serenity Circle.
He drove to the site and observed that Strube’s motorcycle, with
a sign, was indeed parked at Serenity Circle. (Tr. 271.) At about
8:38 a.m., Molina radioed all groundskeepers to move their per-
sonal vehicles from the grounds and back to yard parking. (Tr.
41.) No one mentioned removal of the sign and no other vehicles
displayed signs. (Tr. 108.) About 5 groundskeepers were
Respondent’s counsel characterized his questions with phrases about
picket signs, but none of the testimony reflects the sign was a picket sign.
The sign was never used for picketing within the facility. Respondent
does not explain how it reached this conclusion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
required to move their vehicles; of the 5 groundskeeping em-
ployees, only Strube displayed a sign. According to Molina, he
did not tell McCown about this incident. (Tr. 273.)
According to Strube, however, about 5 minutes after he
headed towards the yard, Molina, driving his white pickup, with
McCown in the passenger seat, stopped him. Molina reiterated
that all groundskeepers should move their vehicles into yard
parking. (Tr. 42–43.) Strube asked why. Molina said the spaces
were needed for patrons and everyone should move vehicles into
yard parking or else the vehicles would be toward. McCown de-
nied that he was in a vehicle while either he or Molina talked to
Strube or any other employees. (Tr. 210–211.) Similarly, Mo-
lina testified that he and McCown did not stop to speak to Strube.
(Tr. 276.)14
About lunch time on May 2, Strube clocked out for lunch and
drove his motorcycle to Reflection Circle, across from the main
funeral home. Reflection Circle is an area with gravesites and
has parking around it for guests or mourners. After eating a
sandwich, he rode back to yard parking and redisplayed his sign,
then clocked back in. McCown testified he saw Strube’s motor-
cycle at an unknown time at Reflection Circle but did not see a
sign.15
Strube testified confusingly that, at a morning meeting some-
time after May 2, either McCown or Molina told the bargaining
unit employees that they could not park at Reflection Circle, the
upper or lower parking lot at the funeral home, “but we could
park in the [funeral home’s] lower parking lot.” (Tr. 53–54.)16
Molina testified that he told the groundskeepers to park in yard
parking and they complained again about dust and pollen. (Tr.
276.)
On May 3, Strube parked his motorcycle in the first space in
yard parking and displayed his sign on the motorcycle while he
worked. In Vets X, across from yard parking, a burial service
involving staging a casket, known as a preset, was taking place.
According to Strube, Molina called Strube on the radio and re-
quested that Strube call him back on his personal cell phone.
Once on the personal cell call, Molina politely asked Strube to
remove the sign from his motorcycle because a family was upset
by it and the sign would disrupt the service. (Tr. 48.) Strube
said the sign was on his personal vehicle and he would not re-
move it. (Tr. 48; GC Exh. 6.) Strube admitted that, other than
this incident, no one asked him to remove his signs. (Tr. 118.)17
According to Strube, Molina then parked his truck in front of his
motorcycle in yard parking, which blocked the view of Strube’s
motorcycle. (Tr. 50; GC Exh. 7.) Molina attended the service
and once the patrons were gone, Molina moved his truck.
In Molina’s version, Molina went to the burial site after re-
ceiving notification from the family service advisor that the sign
was upsetting the family. He saw Strube at the burial site be-
cause Strube and Xavier Rodriguez were the setup crew. Molina
parked near the service, on Cypress Circle Drive. He told Strube
of the family’s concerns. Strube told Molina it was his private
14 Strube also admitted that he did not document any of the alleged
threats.
15 Strube initially testified that he parked in Serenity Circle and said
nothing of displaying his sign during his lunch. (Tr. 47.) Thus, Strube’s
property. Molina did not move his truck and proceeded to assist
with the preset. He then attended the service. (Tr. 283–284.) He
denied telling or ordering Strube to remove the sign from his mo-
torcycle. (Tr. 284.)
Strube testified that Molina parked his vehicle again in front
of Strube’s motorcycle on three occasions, blocking the sign
from the view of services taking place in Vets X or IX and Gan
Hazikaron between May 7 and 11. Strube never asked Molina
to move his truck. (Tr. 119, 284.) For the subsequent two occa-
sions, neither Strube nor Molina testified that Molina asked
Strube to remove his sign and I must conclude that Molina did
not repeat his request.
On May 4 for lunch, Strube drove his motorcycle to the fu-
neral home parking at Reflection Circle. Strube maintained that
other bargaining unit employees were with him in the parking
lot. Strube testified that McCown walked out of the funeral
home and by the group of employees, and then left.
Strube testified that he then began to park his motorcycle in
the lower lot, in a spot closest to the funeral home’s front door to
ensure that his sign would be visible. (Tr. 55.) He parked there
for 2 days. Then, in a morning meeting, Molina told the
groundskeepers to park in yard parking. (Tr. 60–61.)
B. Credibility
General Counsel asked Strube a number of leading questions,
even without attempting to exhaust his memory, and summarized
his testimony before continuing his question.
Strube’s testimony on cross-examination sometimes was eva-
sive without asking for any clarification of the questions. For
example, when Respondent asked about whether employees
parked in the funeral home’s upper level parking:
A. Today they can still park there.
Q. Funeral home employees can park in this lot, correct?
A. Today, they still park in the upper parking lot if they would
like to.
Q. Funeral employees?
A. Yes.
Q. Right. Not grounds-keeping employees though?
A. Grounds-keeping employees, yes. They do too.
Q. Grounds-keeping employees never park in these lots other
than the couple of occasions that you just mentioned; isn't that
true?
A. No.
Q. It was a regular occurrence that grounds-keeping employ-
ees would park all the way over here in this lot? Is that a regular
occurrence?
A. Regular? No.
Q. No. In fact, you already testified that up until about two
years ago, all the grounds-keeping employees parked here [sic,
yard parking], correct?
A. Yes.
initial testimony corroborates McCown that he did not have a sign during
that lunch period.
16 McCown denied making such an announcement to the
groundskeepers or instructing Molina to do so. (Tr. 213.)
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 11
(Tr. 101–102.)
In another example about parking, Strube avoided the ques-
tion and put his gloss on it:
Q. BY MR. HOLLAND: So we were talking about the
mourners, I think, and I was asking you, in your experience,
that's essentially what you've observed mourners do. They'll
come in and they'll park their car near the gravesite. They'll go
visit the gravesite. They'll go back to their car, correct?
A. They park on either side of the road, and there is still plenty
of room for vehicles or equipment to pass through the middle.
(Tr. 114–115.)
Before the incidents described by Strube, no one had ever
eaten lunch in these areas. (Tr. 192.) General Counsel’s brief
states that, beginning in 2016, the groundskeepers parked on
nearby cemetery road without any objection from management.
(GC Br. at 5, citing Tr. 89, 292–293). I find this contention in-
correct during Molina’s tenure. Molina’s testimony shows that
he notified the groundskeepers to move their vehicles but gave
no discipline. (Tr. 292–293.)18 I credit Strube’s straightforward
testimony, however, that he never parked anywhere but in yard
parking before these incidents, which undermines other testi-
mony about parking elsewhere.
Strube had trouble recalling whether Molina or McCown
made statements to him regarding parking. (Tr. 58–60.)
Strube’s discussion of the May 2 conversation in which Re-
spondent threatened to tow vehicles is not credited. Strube ad-
mittedly did not document this alleged threat in his papers (in-
cluding rejected GC Exh. 14) and he seemed hesitant in his rec-
ollection.
Some of Respondent’s questions to its witnesses were leading.
However, most of the facts were straight-forward and the wit-
nesses provided detailed information to many questions. For ex-
ample, Molina described in detail an incident in which he called
an employee to move his personal vehicle blocking a funeral pro-
cession and what he did, including discussing the incident with
all employees the following morning. (Tr. 260–262.) Molina
and McCown had minor differences in their testimonies, none of
which are significant enough to cause concerns about their cred-
ibility.
C. Analysis
1. The rules allegations (Complaint ¶¶9, 11(a), 11(b))
General Counsel alleges Respondent promulgated parking
rules on three occasions in response to Union activity. GC also
alleges that Respondent told an employee to take down the sign
and then blocked communication with the sign to the public. Re-
spondent contends that what is missing from the complaint is
significant. For example, Respondent states no evidence of ani-
mus exists or prior violations of the Act, nor are there any
§8(a)(3) violations alleged. However, none of these are relevant
to the inquiries here.
18 General Counsel contends that Respondent employed 14
groundskeepers at one time and having all 14 parked there at one time
was a physical impossibility. This information pre-dates Molina’s tenure
and I find it irrelevant.
The general standard for rules was revised in Lutheran Herit-
age Park-Livonia, 343 NLRB 646 (2004):
[A]n employer violates Section 8(a)(1) when it maintains a
work rule that reasonably tends to chill employees in the exer-
cise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB
824, 825 (1998). In determining whether a challenged rule is
unlawful, the Board must, however, give the rule a reasonable
reading. It must refrain from reading particular phrases in iso-
lation, and it must not presume improper interference with em-
ployee rights. Id. at 825, 827. Consistent with the foregoing,
our inquiry into whether the maintenance of a challenged rule
is unlawful begins with the issue of whether the rule explicitly
restricts activities protected by Section 7. If it does, we will find
the rule unlawful.
If the rule does not explicitly restrict activity protected by Sec-
tion 7, the violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promulgated
in response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.
In Boeing Corp., 365 NLRB No. 154 (2017), the Board ma-
jority struck the first prong of Lutheran Heritage Park, supra.
However, Prongs 2 and 3 survived. If General Counsel demon-
strates that a rule, even if “dormant,” is promulgated in response
to union activity, Respondent then has a burden of proof to ex-
plain it. See generally In re Dillion Companies, Inc., 340 NLRB
1260 (2003) (question of whether rule promulgated in response
to organizing campaign).
General Counsel contends that the parking rules violate the
second prong of Livonia because Respondent promulgated the
parking rule in response to Strube’s signs and never had parking
rules before that time. He further advocates that the timing in
promulgation supports a finding that the rules were against
Strube’s union activities. I find that no violation took place with
Respondent’s parking rules.19
I find that the parking rules existed before the incidents with
Strube’s signs attached to his motorcycle. Strube admitted that
he did not park elsewhere before these incidents: This admission
lends significant credence to Respondent’s statements that
groundskeepers were required to park in yard parking. Due to
the nature of Respondent’s business, the credited testimony from
Molina and McCown demonstrate that, not only did Respondent
have parking rules in place, but had good reason to do so given
the clients they serve. Based upon where the groundskeepers
usually parked and the credited testimonies of Strube, McCown
and Molina, no new rule was promulgated.
I also find that, based upon Molina and McCown’s credited
testimonies, Respondent enforced its parking rules before the
events involving Strube’s signs. An employer might violate the
Act if it enforces previously unenforced policies. Wexler Meat
Co., 331 NLRB 240, 242 (2000). Although Molina and
McCown had knowledge of Strube’s signs, they did not single
19 General Counsel does not argue that the third prong was violated
and I make no findings on that point.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Strube out. Not only was Strube required to move his vehicle
with the parking rules, but other employees as well. As for Mo-
lina picking up McCown to see Strube’s sign, which General
Counsel argues, the sign was open and not a secret.
At hearing, General Counsel made much of the lack of a writ-
ten rule. However, no requirement exists for a rule to be written.
Although Respondent maintained a verbal rule instead of a writ-
ten rule, that alone does not prove that a rule does not exist.
Regarding timing, General Counsel contends that Molina’s
knowledge of Strube’s union activities should be attributed to
Respondent and take Respondent’s failure to deny knowledge as
a point against Respondent. As I have found that the parking
rules existed before these events, timing does not warrant finding
a violation.20
I therefore recommend dismissal of the three allegations re-
garding the parking rules because the alleged rules were not
promulgated in response to Union activities.
2. Did Respondent tell employees to remove the protest signs
and did Respondent violate the Act by parking his truck in front
of the protest sign during funeral set up, services and clean up?
a. Applicable law
General Counsel cites, inter alia, IBM Corp., 333 NLRB 215
(2001), enfd. 31 Fed. Appx. 744 (2d Cir. 2002). The employees
displayed large pro-union signs in their personal vehicles. The
employer allegedly prohibited large signs, regardless of the mes-
sage, and it violated its no solicitation rules. Id. at 215, 216–217.
The judge found that the sign was protected concerted activity.
However, no special circumstances existed for the employer to
ask for removal of the signs. Id. at 220. A portion of that case
identified obligations regarding employee signs on the em-
ployer’s property.
In Firestone Tire & Rubber Co., 238 NLRB 1323 (1978), an
employee and shop steward was told that he could only continue
to use the company parking lot if he removed from his car, sev-
eral large signs, one stating “Don't Buy Firestone Products.” This
parking lot was used primarily by company employees but also
was used by visitors. When the individual refused to remove the
signs, he was disciplined. The Board, citing the Supreme Court's
decisions in Eastex, Inc., v. NLRB, 434 U.S. 1045 (1978); Hudg-
ens v. NLRB, 424 U.S. 507, 521 fn. 10 (1976); NLRB v. Babcock
& Wilcox Co., supra; and Republic Aviation Corp. v NLRB, 324
U.S. 793, 803 (1945), stated inter alia,
In an unbroken line of decisions, this Board and the Supreme
Court have stated that where an employee exercises his Section
7 rights while legally on an employer's property pursuant to the
employment relationship, the balance to be struck is not vis a
vis the employer's property rights, but only vis a vis the em-
ployer's managerial rights. The difference is “one of sub-
stance,” since in the latter situation Respondent' managerial
rights prevail only where it can show that the restriction is nec-
essary to maintain production or discipline or otherwise
20 For its timing arguments, General Counsel cites cases such as Flex-
N-Gate Texas, LLC, 358 NLRB 622, 630 (2012). The context for that
case was knowledge of union activities as a part of an alleged 8(a)(3)
violation. Counsel for the General Counsel there did not ask certain
questions to a manager, who was an adverse witness, and the respondent
prevent the disruption of Respondent's operations.…
The facts clearly reveal that but for the fact that the parking lot
was located on Respondent's premises, Knight was clearly en-
gaged in protected concerted activities. This Board has long
held that actions taken in sympathy of other striking employees
fall within the protection of Section 7 of the Act.
[T]he Administrative Law Judge cites Cashway Lumber Inc.,
for the rule that an employee does not have a right to affix union
posters on the employer's walls and property. However, this
case is clearly distinguishable since Cashway, supra, stands
only for the proposition that an employee is not engaged in pro-
tected activity if he defaces the employer's property. The mere
presence of an automobile on which signs have been attached
does not constitute the defacement of the property on which it
has been parked. . . .
IBM Corp., 333 NLRB at 219-221.
b. The parties’ positions
General Counsel states Respondent does not identify how
Strube’s sign would interfere with production or discipline.
General Counsel also contends that a cemetery is different from
a health care institution, such as a hospital in which special cir-
cumstances might be found. GC also points out that no cases
show that a cemetery should be treated differently than most em-
ployers who have not demonstrated special circumstances. Gen-
eral Counsel contends that the family request is immaterial.
General Counsel quotes that employees rights to display union
insignia do not hang upon employee rights to participate in such
protected activity and . . .
“does not turn upon the pleasure or displeasure of the employ-
er's customers,” a speculative factor which fails to demonstrate
either an interference either “with the employees' job ... or the
conduct of the employer's business.” See Howard Johnson Mo-
tor Lodge, 261 NLRB 866, 868, and cases cited at fn. 6 (1982).
Roadway Package System, 299 NLRB 458, 459–460 (1990)
(footnote omitted).
General Counsel contends that when Molina blocked Strube’s
sign, he precluded protected activity as well as public education
about a labor dispute. General Counsel relies upon, e.g.,
Schwan’s Sales Enterprises, 257 NLRB 1233, 1247–1248
(1981) (supervisor grabbed cap off employee’s head to discour-
age wearing U insignia).
Respondent contend that the sign was an unmanned picketing
sign, which an employee has no right to bring on the property,
citing Midway Ford Truck Center, 272 NLRB 760, 762 (1984).
According to Respondent, “[N]o section of the Act or Board de-
cision gives an employee the right to unrestricted, 360 degree
visibility of its unmanned picket sign on employer property.” (R.
Br at 17.) Respondent obtusely states that the family’s request
to remove the sign was “the type of legitimate business reason
employer maintained the judge should take an adverse inference from
the GC’s failure to ask. Instead the judge took the adverse inference
against respondent employer, which also failed to elicit a denial of
knowledge. I therefore find this case unhelpful to General Counsel’s
proposed analysis.
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 13
that would permit Respondent to act to remove Strube’s sign.”
(R. Br. at 19, emphasis in original).
c. Discussion
The analysis here consists of three steps: First, determining
whether Strube’s sign was protected activity; two, whether the
employer sufficiently demonstrates that asking to remove was
for production or disciplinary purposes; and three, whether
blocking the sign with the truck was for production or discipli-
nary purposes.
Strube’s display of the sign is not only an appeal to his fellow
employees but is communication with the employer’s customers
about bargaining positions. See generally PAE Applied Technol-
ogies, 367 NLRB No. 105, slip op. at 4–5 (2019). However, the
communication cannot be “disparagement or vilification of the
employer’s product or its reputation.” Id., citing Allied Aviation
Service Co. of New Jersey, Inc., 248 NLRB 229, 230 (1980),
enfd. 636 F2d 1210 (3d Cir. 1980) and Kinder-Care Learning
Centers, 299 NLRB 1171, 1172 (1990). Strube’s signs encapsu-
lated an employee-negotiator view of Respondent’s offers in bar-
gaining and was not offensive.
Strube admitted that no one told him to remove signs from his
personal vehicle except when Molina relayed that a family re-
quested that his protect sign be removed. Other than this inci-
dent, no Respondent manager or supervisor requested that Strube
remove his sign. A threat of disciplinary action is unnecessary
to finding the 8(a)(1) violation. IBM, supra, at 221. The polite-
ness also does not stop the request from violating Section 8(a)(1).
See generally: United Artists Theatre, 277 NLRB 114, 120
(1985) (polite interrogation); and, Southern Household Products
Co., Inc. 280 NLRB 369, 373 (1969), enfd. 449 F.2d 749 (5th
Cir. 1969) (politely asking direct question about union activity).
First, Respondent further fails to differentiate between em-
ployee union activity, particularly within the premises, and non-
employee activity. Regarding its claimed right to block Strube’s
message, Respondent cites, inter alia, Midway Ford Truck Cen-
ter, 272 NLRB 760. In that case, a nonemployee picketer was
outside the facility and additionally placed a picket sign next to
a customer entrance for another one day. The nonemployee
picketer did get onto the employer’s private property, but no em-
ployee was involved. The picket sign notified the public that the
employer was a nonunionized facility. Id. at 760. As previously
noted, the standard for determining whether Strube’s sign should
be removed or blocked, or whether Respondent could request its
removal, is whether the sign was for production or disciplinary
purposes.
Secondly, Respondent argues that it had a “legitimate business
reason” to ask Strube to remove the sign displayed on his motor-
cycle in yard parking. “Special circumstances” are different an-
imals from legitimate business reasons. Respondent does not
point out any circumstances in which the sign, on a motorcycle
parked in its required place, interferes with production or disci-
pline. As Respondent misses its burden to prove special circum-
stances, I will not create an argument on its behalf. See, e.g.,
21 Respondent cites Culley Mechanical Co., 316 NLRB 26, 32 (1995).
The allegation there involved whether the employer interrogated former
employees. The employer’s statement in fact was asking the former
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Cooper
Health System, 327 NLRB 1159 (1999) (hospital partially
demonstrated special circumstances for patient care areas). The
request to remove the sign is coercive and therefore unlawful.
Baptist Medical Center/Health Midwest, 338 NLRB 346, 350
(2002).21
In light of Respondent’s failure to show special circum-
stances, I also find that Molina’s truck coerced a reasonable em-
ployee by precluding his message to the public and other em-
ployees. Had this occurred only once, I might have concluded it
was de minimis. However, it occurred three times. See generally
Advance Auto Distribution Center, 322 NLRB 912, 917 (1997)
(disparate removal of pro-union signs on equipment unlawful).
VI. RESPONDENT, BY MCCOWN, ALLEGEDLY TREATENED
EMPLOYEE STRUBE IN VIOLATION OF SECTION 8(A)(1) OF THE ACT
The complaint alleges another violation of Section 8(a)(1):
Complaint allegation ¶12: About August 26, 2018, Respond-
ent, by McCown, at Respondent’s facility, made implied
threats of termination and/or other unspecified reprisals to em-
ployees because they had engaged in union and/or protected
concerted activities.
A. Facts
One of Strube’s signs stated, “Exorbitant prices Low wages.”
Strube initially testified with some hesitation that McCown al-
legedly told him he did not like the sign and said he could termi-
nate him but recalled little else about the conversation. After a
break, still on direct testimony, Strube recalled some of his con-
versation with McCown. After General Counsel gave Strube his
affidavit to refresh his recollection and Strube returned the affi-
davit, General Counsel proceeded:
Q. BY MR. REEVES: Having read those lines, does that re-
fresh your recollection as to anything further that Mr. McCown
may have stated during this conversation with him that you
have testified?
A. Yes.
Q. And what would—don't read what it says, but what else do
you recall him saying after discussing the sign?
A. He said that he had the perfect time to fire me, but he didn't
use that perfect time to fire me, and that we should have—
Q. Mutual respect?
A. —yeah, mutual respect. I'm sorry.
MR. HOLLAND: Objection.
JUDGE STECKLER: Isn't that a little leading, sir?
MR. REEVES: It's irrelevant. And we could sit here
for 10 minutes while he's trying to—I just thought I'd - it's
not relevant to—
JUDGE STECKLER: You thought you'd lead the wit-
ness?
MR. REEVES: It's not—I'm going to—the relevant
point, just to speed things along.
JUDGE STECKLER: We'll continue. You can argue
it on credibility.
employees to withdraw an unfair labor practice charge because of finan-
cial difficulties. The judge found no interrogation or coercion about un-
ion activities, sympathies or sentiment. Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
MR. HOLLAND: Yes, Your Honor.
MR. REEVES: Your Honor, as our brief will indicate,
our argument goes to the preceding testimony, not in con-
clusion. I don't think mutual respect has anything to do with
this.
MR. HOLLAND: Your Honor, if I may? The leading
was one thing and thank you very much for correcting it.
But Mr. Reeves is speaking about the theory of their case
and their argument while the witness is on the stand, and
he's testifying regarding the particular alleged statements
that were made to him and the impact, I think, is inappro-
priate. He had his opportunity for opening arg—opening
statement. He made that. But to argue his case at a critical
juncture about testimony he believes is relevant and then to
ask the witness follow-up questions I think is leading on
steroids.
MR. REEVES: I was just trying to respond why I don't
believe it's relevant. I mean, I could have him refresh—
JUDGE STECKLER: Well, then what do you need—
MR. REEVES: —his recollection again, and I could
also then put in the statement if—
JUDGE STECKLER: Well, if it's not relevant, then
let's move on, and I'll consider it in the transcript—
MR. REEVES: Exactly.
JUDGE STECKLER: — as not relevant. So continue
your questioning, please, Mr. Reeves.
(Tr. 68–70.)22
Strube could not recall where the conversation took place or a
time of day. The conversation was not as bare bones as the orig-
inal testimony indicated and revealed additional context during
cross-examination. (Tr. 122–123.) On redirect General Counsel
inquired:

Q. BY MR. REEVES: Okay. Does that refresh your recollec-
tion as to whether Mr. McCown said he could fire you for some
alternative reason?
A. He said do we have mutual respect in regards to the signs,
and I told him that, yes, we do have mutual respect.
Q. Okay. Well, that covers that issue.
But as to the reason he had for terminating you, does it
refresh your recollection as to what he told you?
A. I believe he was referring to the painting of the sign or paint-
ing of the white line.
(Tr. 127.)
The “white line” was Strube spray painting a space labeled
“motorcycle parking” in yard parking.23 Respondent removed
the spray painting and Strube repeated the action. Strube testi-
fied he understood McCown’s statement was about the parking
spot because it was “a big deal” and he was sent home for it. (Tr.
128.) McCown denied making any threat and said he sent home
Strube because Strube spray painted his motorcycle parking spot
22 General Counsel’s testimony, in which he completed the witness
sentence and told him the answer, is not competent testimony.
23 Strube also looked at General Counsel when asked about the spray-
painting incident on cross examination. (Tr. 123.)
a second time. (Tr. 203.)
B. Analysis
Section 8(a)(1) of the Act provides that it is an unfair labor
practice to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7, which protects the
right of employees to engage in “concerted activity” for, inter
alia, their “mutual aid or protection.” The Board assesses the ob-
jective tendency of a statement to interfere with the free exercise
of employee rights rather than considering either the employer’s
motive or employees’ actual subjective reactions regarding the
statement. Miller Electric Pump and Plumbing, 334 NLRB 824,
825 (2001); Joy Recovery Technology Corp., 320 NLRB 356,
365 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998).
The issue, then, is how a “reasonable employee” would inter-
pret the statement considering all surrounding circumstances.
The Roomstore, 357 NLRB 1690, 1690 fn. 3 (2011). “The test of
whether a statement is unlawful is whether the words could rea-
sonably be construed as coercive, whether or not that is the only
reasonable construction.” Double D Construction Group, 339
NLRB 303, 303 (2003) (citation omitted). While certain em-
ployer statements, taken alone, may be considered noncoercive,
they will violate the Act where they “take on the character and
quality of coercive comments which accompany them.” Oak
Mfg. Co., 141 NLRB 1323, 1325 (1963).
General Counsel’s version of the facts ignores any testimony
past transcript page 69 and therefore the surrounding context.
(GC Br. at 6). In context, a reasonable employee would find, as
did Strube, that McCown’s statement regarding termination is
about creating a motorcycle parking spot twice,24 not the signs.
The sign was open and McCown expressed his opinion, which is
permissible per Section 8(c) of the Act. The implication is that
McCown, if he intended to terminate Strube, would have termi-
nated him for the parking spots and not the signs. I therefore
recommend that the allegation be dismissed. See generally Mid-
State, Inc., 331 NLRB 1372, 1372 (2000) (context of supervi-
sor’s statements did not reasonably tend to coerce employees and
their Section 7 rights).
VII. ALLEGED UNILATERAL CHANGES IN GROUNDSKEEPER WORK
SCHEDULES
The complaint alleges the following violations of Section
8(a)(5):
¶13(a): About September 9, 2018, Respondent changed the
workweek schedule of its employees, to Tuesday through Sat-
urday or Thursday through Sunday.
¶13(b): About September 20, 2018, Respondent changed the
workweek schedule of the same employees . . . back to Monday
through Friday, instead of Tuesday through Saturday or Thurs-
day through Sunday.
¶13(c): The subjects set forth above in subparagraphs [13(a)]
and [13(b)] related to wages, hours, and other terms and
24 “An employee is not engaged in protected activity if he defaces the
employer property.” IBM Corp., 333 NLRB at 220, citing Cashway Lum-
ber, Inc., 202 NLRB 380 (1973). Repainting the parking spot is defacing
the property.
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 15
conditions of employment of the Unit and are mandatory sub-
jects for the purposes of collective bargaining.
¶13(d): Respondent engaged in the conduct described above
in subparagraphs 13(a) and (13 (b) without first bargaining
with the Union to a good-faith impasse with respect to this con-
duct and the effects of this conduct.
A. Facts
The facts are essentially undisputed. Respondent scheduled
the bargaining unit employees Monday through Friday, 8 a.m.—
4:30 p.m. for at least 7 years before September 2018. Overtime
for weekends would first go to volunteers by seniority. If no one
volunteered, Respondent assigned overtime to groundskeepers
by reverse seniority. In September 2018, Respondent changed
the schedule to stagger employees through the week; however,
each employee was scheduled for 5 consecutive days.
For burials, the necessary employees are one backhoe operator
to dig the graves and two additional employees to open and close
the grave and set up the burial sites. The number of
groundskeepers decreased due to turnover and Respondent had
only 3 backhoe operators among them. (Tr. 94.) Of the 3 back-
hoe operators at that time, Strube was still training on the back-
hoe.25
With fewer groundskeepers, Respondent had difficulty cover-
ing weekends because many groundskeepers did not wish to vol-
unteer for overtime.
1. Collective-bargaining agreement provision and
negotiation history
Respondent maintained that the expired collective-bargaining
agreement26 Section 11, Straight Time Working Hours allowed
it to change schedules. The applicable provision is:
11.2 Regular Work Week. The regular work week at straight-
time shall consist of any five (5) consecutive eight (8) hour
days, Sunday through Saturday. Employees may volunteer for
assignment to a regular work week which includes Saturday or
Sunday or both. If an insufficient number of qualified employ-
ees volunteer for such assignment, assignment of qualified em-
ployees to a regular work week which includes Saturday or
Sunday or both shall be made by inverse seniority where the
qualifications required to perform the work are approximately
equal in the reasonable judgment of the employer.
(GC Exh. 2 at 7.)
The agreement also includes a “zipper clause”:
23. SCOPE OF AGREEMENT
This Agreement shall represent complete collective bar-
gaining and full agreement by the parties in respect to rates
25 Strube later testified he operated the backhoe competently by the
time Respondent made the schedule change.
26 Respondent does not argue that the collective-bargaining agree-
ment’s management-rights clause controls the matter, as management
rights do not survive the contract expiration. Beverly Health & Rehabil-
itation Services, Inc. v. NLRB, 297 F.3d 468 (6th Cir. 2002).
27 Much of Holland’s direct testimony was to leading questions and
Holland did not always give the answer to the question that was asked
of pay, wages, hours of employment, or other conditions of
employment which shall prevail during the term of this
Agreement, and any matters or subjects not covered have
been satisfactorily adjusted, compromised, or waived by the
parties for the life of this Agreement.
(GC Exh. 2 at 15.) (emphasis added)
Respondent attorney Holland served as lead negotiator for Re-
spondent for the 2013–2017 Agreement. The lead union negoti-
ator was John Martin. Section 11.2 language, above, then al-
lowed a regular workweek with any five continuous days during
a Sunday through Saturday week. Holland testified Respondent
told the Union it wanted more flexibility in scheduling. Holland
further informed the Union it had “no imminent desire” to
change the schedule. (Tr. 223.) 27
In 2018, General Manager McCown examined the language
and believed it gave Respondent the power to make changes in
the schedule. (Tr. 173–174.) Respondent planned to implement
staggered shifts, starting on Sunday, Monday, or Tuesday, each
running 5 consecutive days. (Tr. 171.)
2. Respondent develops the groundskeepers’ new schedule,
then notifies the Union
On August 16, at a regular morning meeting with the
groundskeepers, General Manager McCown, with Molina pre-
sent, announced that he wanted to change the Monday through
Friday schedule to stagger the employees on different 5 days:
Three employees would work Monday through Friday; 3 other
employees would work Tuesday through Saturday; and 3 em-
ployees would work Wednesday through Sunday. McCown
asked for volunteers to change the schedules to cover the shifts.
Strube said he wanted to talk to Union President Rodriguez and
other bargaining unit employees first. (Tr. 96.)28 Respondent
continued to ask the groundskeepers which shift schedules they
wanted, starting with the backhoe operators.
Later in the morning of August 16, McCown emailed Union
President Rodriguez about the intended change:
I wanted to inform you that due to the needs of our busi-
ness we are adjusting our schedule slightly to a split shift,
effective this Sunday. This will ensure we have the appro-
priate staffing every day of the week. If you have any con-
cerns, or would like to discuss, I am available anytime. If
you would like to meet today, tomorrow, Saturday, or Sun-
day, I can arrange that as well. The guys selected their shifts
this morning.
McCown testified that he was informing the Union but not offer-
ing to bargain, because the contractual language permitted him
to make the desired change. (Tr. 179.)
Late that night, Rodriguez responded to McCown in an email,
or, in the alternative, he started a narrative. His testimony included parol
evidence on the negotiation of Sec. 11.2 of the expired collective-bar-
gaining agreement. I give significant weight to Holland’s testimony that
Respondent had no imminent plans to make schedule changes when the
contract language was negotiated and so informed the Union.
28 Molina denied that Strube raised any concerns at that meeting. (Tr.
250.) However, another groundskeeper told Molina that the staggered
days had been tried in the past and never worked.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
stating that the Union objected to the schedule changes and de-
manded to bargain. He also stated that the time in which Re-
spondent sought to implement was unreasonable and demanded
that Respondent wait until the parties could bargain, probably
during the first week of September based upon the schedule of
Respondent’s attorney. (GC Exh. 12.) Rodriguez maintained
that the proposed change would cause the employees to miss
overtime and double-time, which were part of the current con-
tract negotiations. (Tr. 140.)
On August 18, McCown emailed to Rodriguez that he was
available to meet on Monday August 20 or after Wednesday Au-
gust 22 to discuss. McCown also explained Respondent’s inter-
pretation of Section 11.2 and how it permitted Respondent to
schedule. (GC Exh. 12.) Respondent did not implement the
schedule changes.
On August 20, Rodriguez, by email, told McCown that the
Union did not agree with Respondent’s reading of Section 11.2
or its belief that it had no obligation to bargain. As such, he again
demanded to bargain, but wanted to wait until the next bargain-
ing session for the successor collective bargaining agreement.
(GC Exh. 12.)
On August 23, McCown emailed Rodriguez. He stated:
. . . I offered to meet with you to discuss whether the Company
had any bargaining obligation over the decision or impact and,
if so, to bargain with you; offered to delay implementation of
the change until August 26th and offered multiple days to meet
with you, but you have no accepted any of them. Our inability
to meet has been caused by your refusal to meet and not by any
action of our labor attorney; in fact, he would have been there
at our meeting. It appears you are more interested in arguing
via e-mail and delaying the schedule change than any construc-
tive meeting.
McCown then offered dates on each day through Wednesday
August 29 to discuss the schedule change. He also offered dates
for meeting on the successor collective-bargaining agreement.
Rodriguez then question McCown and Respondent attorney Hol-
land whether the dates offered were not for contract negotiations.
Holland replied that the September 10 date was for the contract,
but the earlier dates were about the schedule change. Holland
wrote, “You’ve asked to bargain over that change. We need that
change to occur. If you want to discuss it please contact
[McCown] and arrange to meet on one of the dates listed below.”
Within 15 minutes, Rodriguez emailed them back. He again
stated that the Union wanted to negotiate it with the next bar-
gaining session for the contract, on September 10. Holland
quickly responded:
If you refuse to meet Rich to discuss the schedule
change and the issues raised by your multiple e-mails we
will have no choice but to go forward with the schedule
change.
At your request, we have offered 11 different dates to
meet and discuss the schedule change. Your refusal to meet
on any of those days is a refusal to bargain. Your refusal is
ironic given the Union requested bargaining.
Please get in touch with Rich to meet to discuss the
schedule change and any alleged impact on one of the days
he has offered. If you refuse to meet on any of those dates
we will see you on September 10th but will proceed with the
change effective August 26th.
(GC Exh. 12 at 4.)
Rodriguez then emailed back that he was not refusing to meet
but Respondent was acting in bad faith “by offering piecemeal
bargaining.”
3. Respondent implements schedule change and two weeks
later reverts to the original Monday through Friday schedule for
all groundskeepers
On August 31, Respondent, by attorney Holland, emailed Ro-
driguez that the schedule change would be implemented on Sun-
day September 9. Holland also stated that the Union’s failure to
meet on the dates offered constituted a waiver. (GC Exh. 12 at
3.)
On September 9, Respondent implemented the schedule
change. Although bargaining unit employees still worked 5 con-
secutive days, 6 employees no longer started their work week on
Monday. Respondent scheduled the three bargaining unit em-
ployees Sunday through Thursday, and three for Tuesday
through Saturday.
The schedule changes only lasted two weeks: Respondent re-
turned to the previous Monday through Friday schedule for all
groundskeepers. (Tr. 97–98.) Respondent found that the sched-
ule changes were not helpful to its needs because it still needed
employees to work outside their schedule and still resulted in
overtime. The schedule also was unpopular with the employees.
On about September 24, McCown told the employees that they
all would return to a Monday through Friday schedule. Respond-
ent did not notify the Union about changing the schedules. (Tr.
144–145.)
B. Respondent Maintains That General Counsel Changed The-
ories Posttrial and Was Not Afforded Due Process
Post-hearing briefs were filed on June 28, 2019. Within its
brief, Respondent includes an exhibit with a post-hearing email
exchange with General Counsel. According to Respondent,
General Counsel, pre-hearing, apparently told Respondent that
he did not intend to argue over contract expiration as a basis to
find a unilateral change; however, on June 14, 2019, General
Counsel told Respondent it would no longer exclude the contract
expiration as a basis to argue Respondent’s alleged unilateral ac-
tions violated the Act. (R. Br. at 13 and attached Exh. A; R.
Supp. R. Br. at 2 and its attached exhibit). Respondent points
out that General Counsel’s opening statement only referred to
past practice and not to the expiration of the contract.
Although Respondent did not move to include its post-hearing
information in the record, I issued an Order to Show Cause, dated
July 17, 2019, for Respondent to either file a motion to reopen
the hearing to adduce additional evidence or file a supplemental
brief to address General Counsel’s alleged changed theory. If
Respondent selected to re-open the hearing, it would have been
required to make an offer of proof of the evidence it intended to
present. In either case, Respondent was given until July 25,
2019, to respond to the Order to Show Cause and, if selected, the
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 17
supplemental brief would be due August 8, 2019.29
In response to the Order to Show Cause, Respondent, on July
23, 2019, notified all parties that it intended to file a supple-
mental brief and requested an additional week, until August 15,
2019, to file its supplemental brief. On July 25, 2019, I granted
to request for additional time to file the brief but extended only
until August 14, 2019. Because Respondent chose not to present
any additional evidence and therefore the evidence “remains un-
changed.” Enloe Medical Center, 348 NLRB 991 (2006) (opin-
ion after remand for a respondent to provide additional evidence
and respondent objected instead).
Respondent filed a timely supplemental brief in which it
spends about 75 percent on arguing that it still is denied due pro-
cess30 and about 25 percent on the actual issue.
Respondent argues General Counsel could not change theories
and it had no notice of the idea that Section 11.2 expired with the
collective-bargaining agreement and it should not have to re-
spond now. It also contends that even had General Counsel
moved to amend the complaint, it should have been rejected.31
Procedural due process requires notice and opportunity to be
heard. Earthgrains Co., 351 NLRB 733, 735 (2007). An agency
cannot change theories in midstream without giving a respondent
a reasonable notice of the change. Lamar Advertising of Hart-
ford, 343 NLRB 261, 265 (2004). Procedural due process has
flexible characteristics that are “unrestrained by bright line
rules.” Id., citing Steinert v. Winn Group, Inc., 440 F.3d 1214,
1222 (10th Cir. 2006).
Regarding Respondent’s notice, the complaint and the charge
provide sufficient notice. The complaint allegations32 are suffi-
ciently broad to encompass both past practice and contract expi-
ration. The complaint comports with §102.15(b) of the Board’s
Rules and Regulations: “A clear and concise description of the
acts which are claimed to constitute unfair labor practices, in-
cluding, where known, the approximate dates and places of such
acts and the names of Respondent’s agents or representatives
who committed the acts.”
Additionally, Charge 20–CA–227245, on which the com-
plaint is based, alleges Respondent violated Section 8(a)(5) “by
unilaterally changing and implementing new workweek
29 General Counsel, on July 18, 2019, contended that it did not change
theories but was responding to Respondent’s anticipated defense of
waiver. General Counsel’s argument regarding waiver is “(1) that Sec-
tion 11.2 is not a clear and unmistakable waiver of the Union’s right to
bargain over the schedule changes, and (2) Section 11.2 did not survive
the expiration of the contract to the extent it is considered a negotiated
waiver.”
30 Respondent mis-cites ILA, Local 28 (Ceres Gulf, Inc.), 367 NLRB
No. 128 (2019) as ILWU. The case procedurally does not assist Re-
spondent’s point as there the respondent union was granted a second
hearing due to issues unrelated to due process, and then General Counsel
raised the new argument at a de novo hearing. Id., slip op. at 1, fn. 2.
Respondent also argues that it could have better prepared for litigation
had it been provided subpoenaed documents from the Union. This stab
at the subpoena issue is well beyond the scope of the Order and irrelevant
to its due process arguments.
31 Respondent also argues, without support, that General Counsel’s
conduct, as a policy matter, encourages deprivation of due process.
32 To reiterate the complaint allegations:
¶13(a): About September 9, 2018, Respondent changed the workweek
schedules for bargaining unit employees on an expired contract
and during the course of contract negotiations without the con-
sent of affected employees and the Union.” The record is devoid
of any stipulation between the parties that only past practice con-
trolled whether Respondent violated the Act or that contract ex-
piration is unrelated to interpretation of the contractual provi-
sions. The complaint and charge adequately express the unilat-
eral changes alleged.33 The remainder of Respondent’s argu-
ment about amending the complaint is purely speculative.
Respondent cites NLRB v. Majestic Weaving Co., 355 F.2d
854 (2d Cir. 1966) because an employer was denied due process
when “the underlying decision had not been fully litigated. Fur-
ther, the court denied the NLRB’s request for a new hearing, stat-
ing ‘we see no good reason to permit the Board to start afresh.’”
(R. Supp. Br. at 5–6, citing 355 F.2d at 862). The complaint
there missed a significant fact, which is not the case here. 355
F.2d at 861–862. Further Respondent made a choice to respond
to the Order to Show Cause and did not argue in its response that
it should not be made to respond at all. This argument is a tardy
attempt to have two (or three) bites of the proverbial apple.
Per Enloe, supra, I reject Respondent’s argument that it did
not have to respond now. Respondent also argues that it would
have approached the case differently had it know of General
Counsel’s theory. However, despite given the opportunity to ad-
duce additional evidence, it opted not to reopen the case.
Respondent cites no cases in its briefs to demonstrate that it
could rely only upon General Counsel’s opening statement to
show what theories General Counsel intends to pursue. It incor-
rectly contends that nothing in the record raises the possibility
that General Counsel would rely upon a theory that Section 11.2
no longer applied after contract expiration: When Respondent
attorney Holland testified, General Counsel asked on cross-ex-
amination whether Holland was familiar with a case called “Bot-
tom Line.” Bottom Line, discussed in more detail below, deals
with an employer’s bargaining obligations and the requirements
to maintain status quo after contract expiration. Although Hol-
land was not required to answer the question, Respondent should
have seen the handwriting on the wall with this question.
The allegation presented also is closely related to the specific
schedule of its employees, to Tuesday through Saturday or Thursday
through Sunday.
¶13(b): About September 20, 2018, Respondent changed the work-
week schedule of the same employees . . . back to Monday through Fri-
day, instead of Tuesday through Saturday or Thursday through Sunday.
¶13(c): The subjects set forth above in subparagraphs [13(a)] and
[13(b)] related to wages, hours, and other terms and conditions of em-
ployment of the Unit and are mandatory subjects for the purposes of
collective bargaining.
¶13(d): Respondent engaged in the conduct described above in subpar-
agraphs 13(a) and 13(b) without first bargaining with the Union to a
good-faith impasse with respect to this conduct and the effects of this
conduct.
33 Respondent also is not assisted with NLRB v. H.E. Fletcher Co.,
298 F.2d 594, 600 (1st Cir. 1962). The issue again was failure to make
the pleading at all and was never fully litigated at hearing. As I have
found the complaint was adequate with §102.15 of the Board’s Rules and
Regulations and Respondent had been given the opportunity to reopen
the record, Respondent has had fair notice and an opportunity to be heard
on the matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
allegations of the complaint (even if Respondent does not see it)
and I will consider the theory that the Union no longer waived
its rights under Section 11.2 of the expired collective-bargaining
agreement. Enloe, 348 NLRB at 991–992. Even if the allega-
tions and theories were not clear to Respondent before General
Counsel’s email, procedural due process has been met. Because
Respondent did not adduce any further evidence, I conclude that
the matter was fully litigated. Respondent has had an oppor-
tunity to brief the matter and did so. Therefore, Respondent has
had notice and the opportunity to be heard.
Respondent should have had a clue from General Counsel’s
questioning of Holland where General Counsel’s case was
headed. Even if it did not, Respondent now has been given op-
portunity to either reopen the record, which it did not select, or
brief the legal theory without opening the record, which it chose.
Respondent has not been deprived of procedural due process.34
C. Parties’ Positions Regarding the Alleged Unilateral
Changes
General Counsel argues that Respondent established a past
practice of working staff Monday through Friday and deviated
when it set in motion a different staggered 5 consecutive days.
General Counsel also contends, in response to Respondent’s ar-
gument that the Union waived its rights, the negotiated language
of Section 11.2 does not survive contract expiration.
Respondent contends that the language of Section 11.2 in the
negotiated yet expired collective-bargaining agreement provides
Respondent the right to make such changes and the Union
waived its rights to protest. Respondent also contends that the
change was not “material, substantial and significant,” as only
six employees’ schedules were changed and only for 2 weeks.35
Respondent further argues that the employees “voluntarily”
changed their schedules. Respondent also contends that the Un-
ion failed to engage in timely effects bargaining when it refused
opportunities over 24 days, but also contends its notification was
merely a courtesy. (R. Br. at 7, 13.)
D. Credibility
Although the facts are essentially undisputed, one dispute
arises with Respondent’s supplemental brief: whether the em-
ployees were told they had to pick their schedules or whether
they “volunteered.” Respondent also admits that the employees
would have been assigned to shifts had they not “volunteered.”36
Here, I credit Strube’s discussion of what happened. Although
Strube retained his Monday through Friday schedule, this sched-
ule was unlike volunteering for overtime, which the employees
had been declining. The choice described by Respondent is not
a meaningful one: Although employees were given a choice of
which schedule to work, they were not given a choice of not
34 Respondent cites Truck Drivers Local 692 (Great Western
Unifreight System), 209 NLRB 446 (1974). That case involved a bill of
particulars and summary judgment; the procedural differences make it
inapplicable to the present case.
35 Respondent also contends that the history of the negotiations for
this collective-bargaining agreement provision shows that Respondent
wanted more flexibility for scheduling and received it. To that end, Re-
spondent provided testimony from attorney Holland. Holland’s direct
testimony, to primarily leading questions, resulted in narratives that
accepting the schedule changes, particularly with the looming
prospect of involuntary assignment to shifts.
E. Analysis
An employer must bargain over material and substantial
changes in wages, hours, or terms and conditions of employer
that are mandatory subjects of bargaining. Fresno Bee, 339
NLRB 1214 (2003). To establish a prima facie case for Section
8(a)(5) unilateral change, General Counsel must demonstrate
“the employer made a material and substantial change in a term
of employment without negotiating with the union.” Id. at 1214.)
The employer defends by demonstrating that it was privileged to
make the unilateral change. Id.
Despite negotiating the language into the collective-bargain-
ing agreement, Respondent made no changes in schedules for
well over 5 years after the collective-bargaining agreement went
into effect. The schedule also existed in the Monday through
Friday format for at least 2 years before the collective-bargaining
agreement went into effect. In the meantime, the collective-bar-
gaining agreement expired at the end of 2017. The tension be-
tween the negotiated contractual language and the past practice
creates the primary issue in whether Respondent unlawfully uni-
laterally changed the start of the 5-work days per week for the
groundskeepers.
1. Respondent’s change in work schedules are material, sub-
stantial and significant
Work schedules are mandatory subjects of bargaining. Green
Apple Supermarket of Jamaica, Inc., 366 NLRB No. 124, slip
op. at 22–23 (2018); Paul Mueller Co., 332 NLRB 332, 334
(2000). Weekend work requirements are material and substan-
tial changes to terms and conditions. NLRB v. Bloomfield Health
Care Center, 372 Fed. Appx. 115, 121-122 (2d Cir. 2010), enfg.
352 NLRB 252 (2008).
An employer must notify the Union of changes to work sched-
ules and provide the Union with a reasonable opportunity to ne-
gotiate the changes. Indiana Hospital, 315 NLRB 647, 657
(1994). Failure to do so results in a violation of Section 8(a)(5)
and (1) of the Act. Id., citing Angelica Healthcare Services, 284
NLRB 844, 853 (1987). Also see: Keeler Brass Co. d/b/a Keeler
Die Cast, 327 NLRB 585, 589 (1999) (changes in schedules and
any resulting reduction in overtime are mandatory subjects);
Tuskegee Area Transportation System, 308 NLRB 251 (1992),
affd. 5 F.3d 1499, reh’g denied (11th Cir. 1993), cert. denied 511
U.S. 1083 (1994). Despite Respondent’s additional defenses,
discussed below, I find that Respondent did not negotiate the in-
itial shift change with the Union, as required, and it did not notify
or bargain with the Union at all regarding the shift change made
two weeks later.
sometimes did not reflect what was answered. Significant, however, was
Respondent’s admission against interest, testifying that no schedule
change was imminent.
36 Respondent contends that General Counsel “only quibbles with the
days of the week for which employees were permitted to volunteer over
a two week period or otherwise be scheduled by inverse seniority per
section 11.2.” (R. Supp. Br. at 9.) In the same paragraph, Respondent
states there is no dispute that Respondent had the right to set the weekly
schedules.
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 19
Respondent claims that the change in scheduling was not ma-
terial or substantial. McClatchy Newspapers, Inc., 339 NLRB
1214, 1216 (2003), cited by Respondent, gives it no quarter. The
portion cited by Respondent discusses a ministerial and de min-
imis effect of an employer’s change to a different pay roll period.
The Board found the employer did not need to bargain that
change with the newly formed bargaining unit. (Id. at 1215–
1216.) Closer to the present case, the Board also found that the
employer was required to bargain with the union about a change
in the lunch periods and schedules, which were “permanent and
systemic” and therefore material and substantial. (Id. at 1215.)
When Respondent made the initial change, it had no indication
that the change would be temporary, so it was permanent and
systemic, as was the second change.
Respondent also cites Crittenton Hospital, 342 NLRB 686
(2004), in which the Board determined a change in dress code
prohibiting nurses from wearing fake nails was not proven to be
material, substantial and significant. Because previous hospital
policies “strongly” discouraged wearing them, the Board rea-
soned that nurses did not use them, so the change “would not be
significant to them.” (Id. at 686–687.) Schedules requiring
weekend work when none was required before are a horse of a
different color. The schedule changes disrupted a well-settled
routine. Bloomfield Health Care, supra.
Respondent claims the schedule changes were de minimis be-
cause they were temporary. The record contradicts this conclu-
sion: When Respondent made the initial change, it never in-
formed the Union or the employees of its intention of making the
change “temporary.” Nothing in the record reflects Respondent
telling the employees the change in scheduling was temporary
and had it been successful in relieving scheduling issues, it
would not have been temporary. Its stated reasons for changing
back to the previous schedule were that it still was not suffi-
ciently staffed with groundskeepers, which is “post hoc rational-
ization for its conduct.” See Graymont PA, Inc., 364 NLRB No.
37 (2016). Respondent’s changes in schedules therefore are ma-
terial, substantial and significant.
2. The zipper clause in the expired collective-bargaining agree-
ment demonstrates that the Union only waived its rights on
scheduling until contract expiration
Respondent claims that Section 11.2 in the expired collective-
bargaining agreement remains active and controls the situation,
giving it the “express right” to make changes. (R. Br. at 10.) It
also contends that the Board does not have the power to resolve
the contractual disputes. I find that Section 11.2, in which the
Union waived its rights to bargain over schedules, only remained
in effect during the term of the contract. Let’s deal first with the
contention that the Board does not have the power to resolve this
disputed contractual area, then Respondent’s claimed rights to
change the schedule in an expired collective-bargaining agree-
ment.
a. The Board’s power to resolve contractual disputes
The Board has the power to resolve contractual disputes when
37 Respondent cites a number of cases claiming that the contract pro-
vided a clear and unmistakable waiver. However, cases cited support
that finding in unexpired contracts. See, e.g.: Baptist Hospital of East
the disputes are related to determination of an unfair labor prac-
tice. See generally Hallmark Phoenix 3, LLC v. NLRB, 820 F.3d
696, 705 (5th Cir. 2016).
I find no support for Respondent’s argument that the Board
cannot interpret the contract because Respondent has “a sound
arguable basis for ascribing a particular meaning to [the] the con-
tract and [the] action is in accordance with the terms of the con-
tract as he construes it.” R.Br., citing NCR Corp., 271 NLRB
1212 (1984), citing Vicker’s, Inc., 153 NLRB 561, 570 (1965).
Examples provided by Respondent point to mid-term contract
changes, not the expired collective-bargaining agreement. In
NCR, the Board said it would not serve as the arbitrator to inter-
pret the disputed contract language and that the employer’s ac-
tions were based upon “a substantial claim of contractual privi-
lege.” (Id. at 1213.) This situation arose during the term of the
contract, during which arbitration was an option. Id. at 1214-
1215. Similarly, “sound arguable basis” was applied to a mid-
term contract change in Bath Marine Draftsmen’s Assn v. NLRB,
475 F.3d 14, 20–21 (1st Cir. 2007), affg. 345 NLRB 499 (2005).
b. The Union only waived its rights during the term of the
Agreement, not after its expiration
The issue is determining whether the Union has waived its
rights to bargain about scheduling after the contract expired. As-
sessment of the collective-bargaining agreement requires reason-
able construction; interpretation is not a piecemeal effort but re-
quires examination of the contract in its entirety. Healthbridge
Management, LLC, 365 NLRB No. 37, slip op. fn. 25 (2017),
enfd. 902 F.3d 37 (2d Cir. 2018). To do otherwise violates the
long-standing principles of “accepted rules of contract interpre-
tation.” Textron Puerto Rico, 107 NLRB 583, 587-588 and fn.
5 (1953). Also see: Mastro Plastics Corp. v. NLRB, 350 U.S.
270, 279 (1956); Knollwood Country Club, 365 NLRB No. 22,
fn. 8 (2017); Capitol Trucking, Inc., 246 NLRB 135, 140 (1979);
Alliance Mfg. Co., 200 NLRB 697, 700 (1972). In applying
these principles of contractual interpretation, the interpretation
here cannot be limited to Section 11.2, but also must be inter-
preted in conjunction with the zipper clause.
The zipper clause explicitly limits both parties from reopening
the terms of the Agreement during the life of the agreement. The
Union waived its rights to bargain scheduling for the term of the
Agreement only and no longer. Wilkes-Barre Hospital Co., LLC
v. NLRB, 857 F.3d 364, 377 (D.C. Cir. 2017), enfg. 362 NLRB
1212 (2015).37
Respondent does not identify any other reason why this con-
tractual term survives expiration. Like the employer in Wilkes-
Barre, Respondent contends that the Union waived its rights,
presumably for all eternity or until the parties entered a new con-
tract, whichever came first. However, as with many cases,
waiver must be clear and unmistakable. Id., citing Honeywell
Int’l, Inc. v. NLRB, 253 F.3d 125, 133 (D.C. Cir. 2001).
Respondent is required to show that the Union clearly and un-
mistakably waived its rights post-expiration. During the term of
the contract, then, the Union clearly waived its rights to bargain
Tennessee, 351 NLRB 71 (2007); Continental Tel. Co. of California, 274
NLRB 1452 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
over the schedule cases.38 Not so after contract expiration. Re-
spondent relies upon the bargaining history as its intent was clear
to have flexibility to schedule 5-day workweeks, starting on any
day of the week. (R. Br. 11–12.) No additional language in the
Agreement shows what will happen with the Union’s waiver af-
ter the contract expired. Bargaining history does not demon-
strate such an intent. Wilkes-Barre, 857 F.3d at 378–379. Re-
spondent therefore cannot rely upon the contract language to
state the Union had no right to demand bargaining over Respond-
ent’s planned schedule changes. The Union had a right to de-
mand bargaining over Respondent’s planned schedule changes
and Respondent was obliged to do so.39 Wilkes-Barre, supra.
Because the collective-bargaining agreement expired and the
waiver was no longer in effect, the situation is controlled by past
practice and Bottom Line, infra.40
3. Respondent’s past practice is the status quo
“’To avoid running afoul of the unilateral change doctrine, an
employer must maintain the status quo as to terms and conditions
of employment after the expiration of a collective bargaining
agreement.’” Prime Healthcare Services-Encino LLC. v. NLRB,
890 F.3d 286, 293 (D.C. Cir. 2018), citing Wilkes-Barre, 857
F.3d at 372. Here the status quo is established by a past practice
that continued over a year and a half after the collective-bargain-
ing agreement expired.
A past practice must occur with such regularity and frequency
that employees could reasonably expect the “practice” to con-
tinue or reoccur on a regular and consistent basis. Philadelphia
Coca-Cola Bottling Co., 340 NLRB 349, 353–354 (2003), enfd.
112 Fed. Appx. 65 (D.C. Cir. 2004); Eugene Iovine, Inc., 328
NLRB 294, 297 (1999). The party asserting the existence of a
past practice, here the General Counsel, must establish the regu-
larity and frequency specific to its circumstances. General Die
Casters, Inc., 359 NLRB 89, 90 (2012); North Star Steel Co.,
347 NLRB 1364, 1367 (2006). Because a past practice becomes
a term and condition of employment, the past practice cannot be
changed without offering the collective-bargaining representa-
tive notice and an opportunity to bargain, absent clear and une-
quivocal waiver of this right. Sunoco, Inc., 349 NLRB 240, 244
(2007), citing Granite City Steel Co., 167 NLRB 310, 315
(1967); DMI Distribution of Delaware, 334 NLRB 409, 411
(2001); Exxon Shipping Co., 291 NLRB 489, 493 (1988); Queen
Mary Rest. Corp. v. NLRB, 560 F.2d 403, 408 (9th Cir. 1977).
During the period in which parties are negotiating a new col-
lective-bargaining agreement and expiration of the old one, the
status quo controls whether an employer may implement a uni-
lateral change and is controlled by the substantive terms of the
expired collective-bargaining agreement. Wilkes-Barre, 857
F.3d at 374, citing, inter alia, Intermountain Rural Elec. Ass’n v.
NLRB, 984 F.2d 1562, 1567 (10th Cir. 1993), enfg. 305 NLRB
783 (1991).
However, Respondent admits that, during bargaining before
the 2013 contract, it advised the Union it sought no imminent
38 Unlike General Counsel, I find the language clear and unmistakable.
39 In Wilkes-Barre Hospital, supra, the expired contract did not limit
the pay raises to the term of the contract. Here, the zipper clause makes
clear that the terms of the waiver last only as long the duration of the
contract.
changes. Not only were changes not “imminent,” Respondent
made no changes for at least 7 years, during which time the most
recent collective-bargaining agreement came and went. This
practice solidified over this lengthy period. General Counsel
therefore demonstrated this past practice existed for years, in-
cluding well after the collective-bargaining agreement expired.
Respondent maintains that it had a “continuing right to decide
on the weekly start day for schedules under Section 11.2 of the
CBA and per continuing practice.” (R. Br. 10, citing Raytheon
Network Centric Systems, 365 NLRB No. 161 (2017).) Re-
spondent implies that the schedule changes were “’minor varia-
tions” from past actions or mere particularizations or delinea-
tions of carrying out ‘an establish[ed] rule or practice.’” (R.
Supp. Br. at 9.)
Like Raytheon, the alleged unilateral changes occurred after
the collective-bargaining agreement expired. Under the terms of
the collective-bargaining agreement, the employer negotiated
language that allowed it to change benefits for bargaining unit
employees. At this point, Raytheon and this matter diverge be-
cause the past practice here and in Raytheon are inapposite. The
employer in Raytheon made changes annually over a period of
years during the term of the contract. The Board discussed a
“dynamic past practice” in which the employer regularly
changed terms and conditions of employment as permitted in the
contract. Raytheon, 365 NLRB No. 161, slip op. at 6, fn. 24.
Here, Respondent admitted in negotiations that it had no im-
minent intent to change the Monday through Friday schedules,
which existed at the time the expired collective-bargaining
agreement was negotiated. Respondent did not make any
changes until over 18 months after the collective-bargaining
agreement expired. In other words, Respondent failed to take
advantage of the negotiated language from at least January 2013
until September 2018, past expiration, well over 5 years. The
change from Respondent’s failure to change schedules for well
over 7 years to a postexpiration requirement is not a minor vari-
ation of an established practice at all. For this Respondent, no
pre-expiration dynamic past practice existed to warrant its failure
to negotiate before implementing the post-expiration schedule
changes.
4. Respondent was obligated to bargain before implementation
While the parties are negotiating a collective-bargaining
agreement, an employer must refrain from any implementing
changes “’unless and until an overall impasse has been reached
on bargaining for an agreement as a whole,’ subject to certain
exceptions.” Oberthur Technologies of America Corp., 368
NLRB No. 5, slip op. at 2 fn. 7, citing Bottom Line Enterprises,
302 NLRB 373, 374 (1991), enfd. mem. sub nom Master Win-
dow Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994), and
RBE Electronics of S.D., 320 NLRB 80, 81–82 (1995). The ex-
pired collective-bargaining agreement, with limited exceptions,
remains the status quo, which an employer must maintain. In-
termountain Rural Electrical Assn. v. NLRB, 984 F.2d at 1568.
40 Respondent’s situation is distinguishable from Metalcraft of
Mayville, Inc., 367 NLRB No. 116 (2019). The employer stopped dues
checkoff, which was intertwined with interpretation of the state’s shift to
right to work. Because the employer relied upon a change in state law to
interpret the contract, it is inapplicable here.
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 21
Respondent fails to demonstrate that the status quo, the same
schedule in effect for at least 7 years, required an immediate
change beyond its control or requiring rapid change. Even when
not included in the collective-bargaining agreement, longstand-
ing and regular practice or custom may become terms and con-
ditions of employment. See Hotel Texas, 138 NLRB 706, 712–
713 (1962), enfd. 326 F.2d 501 (5th Cir. 1964); Frontier Homes
Corp., 153 NLRB 1070, 1072–1073; Central Illinois Public Ser-
vice Co., 139 NLRB 1407, 1415 (1962), enfd. 324 F.2d 916 (7th
Cir. 1963). If the unilateral change of the past practice is mate-
rial, substantial, and significant, the employer may violate Sec-
tion 8(a)(5) of the Act if it changes it without notice and negoti-
ation to the Union. Alamo Cement Co., 281 NLRB 737, 738
(1986); Flambeau Airmold Corp., 334 NLRB 165, 171 (2001).
The outcome here is controlled by Intermountain Rural Ec.
Ass.n, 305 NLRB 783, 787–788 (1991), enfd. 984 F.2d 1562,
reh’g denied (10th Cir. 1993). The parties were negotiating a
successor contract after the previous contract expired. At issue
was employer’s alleged unilateral change of overtime premium
pay calculation. The previous contract’s language had changed,
yet since that time—over 7 years—the employer retained the
same overtime pay calculation. As in the current situation,
“[t]his uninterrupted and accepted custom had thus become an
implied term and condition of employment by mutual consent of
the parties.” Id.
Respondent also fails to demonstrate that it was privileged to
make unilateral changes under Bottom Line, supra, and RBE, su-
pra. The Bottom Line exceptions that permit an employer to im-
plement changes are: when the union delays bargaining; and,
when economic exigencies compel prompt action. Bottom Line,
302 NLRB at 374. An economic exigency occurs under compel-
ling economic consideration, which is “’an unforeseen occur-
rence, having a major economic effect [requiring] the company
to take immediate action.’” Hankins Lumber Co., 316 NLRB
837, 838 (1995), citing Angelica Healthcare Services, 284
NLRB 844, 852–853 (1987). Business necessity is not the same
condition and does not excuse a failure to bargain. Hankins
Lumber, 316 NLRB at 838, citing Farina Corp., 310 NLRB 318,
321 (1993). Nor do losses of significant accounts or contracts,
operating at a competitive disadvantage provide adequate ex-
cuses. RBE Electronics of S.D., Inc., 320 NLRB at 81. An em-
ployer must demonstrate that its unilateral change was com-
pelled and that external events, beyond the employer’s control,
or not reasonably foreseeable required a rapid change. RBE
Electronics, 320 NLRB at 82. This Respondent did not do.
Other cases cited by Respondent are inapplicable because they
arose before the collective bargaining agreement expired, e.g.:
Continental Telephone Co. of Calif., 274 NLRB 1452, 1452–
1453 (1985) (attendance policy changes during term of collec-
tive-bargaining agreement); Baptist Hospital of East Tennessee,
351 NLRB 71 (2007) (broadly worded management rights clause
in unexpired agreement permitted hospital to determine shift
starting; hospital changed holiday scheduling policy before the
contract expired).
5. Respondent demonstrates neither exigent circumstances nor
delays in Union’s bargaining to warrant implementation with-
out negotiation
Despite Respondent’s averments that it needed to adapt
quickly to its business demands, Respondent does not demon-
strate any economic exigency requiring implementation before
the parties could negotiate a complete successor collective-bar-
gaining agreement. In Hankins Lumber, 316 NLRB at 837–838,
the employer determined to permanently lay off employees be-
cause of a chronic shortage of raw materials. The chronic short-
age was not compelling economic circumstances that required
immediate action such as lay off. Id.
Similarly, the problem with staffing weekends with
groundskeepers was not new. Respondent proves no exigency
requiring the scheduling change, which ultimately failed.
McClatchy, supra at 1214–1215, does not support Respondent’s
need for a rapid change with limited bargaining time. The sched-
ule changes in McClatchy resulted from the employer’s shift to
a new printing system, which was not a bargainable decision, so
the employer was required to bargain the bargainable effects.
Here, the shift changes were not related to any management de-
cision that was not bargainable but required effects bargaining;
as recognized above, the change directly impacted a term and
condition of employment.
Respondent also contends that the Union failed to bargain
over a period of 24 days. The Union made a timely request to
bargain —the same day as notified—once Respondent notified
it of its intent to make a change in schedules. The case is differ-
entiated from Citizens National Bank of Wilmar, 245 NLRB 389,
389–390 (1979), petitions for rev. denied 644 F.2d 39 and 644
F.2d 40 (D.C. Cir. 1981) (no violation when union did not de-
mand bargaining but only protested the action of the employer).
The parties were scheduled to bargain about the successor
contract on September 10, the day before Respondent imple-
mented the staggered week schedules. Respondent already de-
layed implementation for a short time. However, the 24-day pe-
riod includes the period in which Respondent first notified the
Union. Given no exigent circumstances, Respondent could have
waited at least 1 more week to negotiate at the session on Sep-
tember 10, instead of implementing the day before contract ne-
gotiations. Additionally, the Union was within its rights to de-
mand bargaining during the contract negotiations.
6. Respondent also was obligated to bargain regarding the ef-
fects of its decision
Even if found to have waived its rights to bargain over Re-
spondent’s decision on the schedule, Respondent still had an ob-
ligation to bargain the effects of the change. Natomi Hospitals
of California, Inc., d/b/a Good Samaritan Hospital, 335 NLRB
901, 902–903 (2001) (change in staffing grid caused changes);
Bridon Cordage, Inc., 329 NLRB 258, 258–259 (1999) (layoffs
caused by business decision of inventory reduction were bar-
gainable effects). The effects here included how employees
were paid for overtime on the weekend. Respondent failed to
bargain with the Union at all regarding the effects of the schedule
change and reversion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
F. Conclusions Regarding Unilateral Changes in Shift
Schedules
Respondent’s changes to the past practice of shift scheduling,
particularly affecting weekend work, are material and substan-
tial. The changes occurred after the collective-bargaining agree-
ment expired, which required Respondent to notify and bargain
with the Union. Respondent never took advantage of the con-
tractual language during the term of the contract and the zipper
clause limited Respondent’s rights to change schedules to the
term of the contract. Although Respondent notified the Union
about the initial change, it did not engage in bargaining. Regard-
ing the reversion to the prior schedule two weeks after imple-
mentation, Respondent provided no notification whatsoever to
the Union. I therefore find that Respondent violated Section
8(a)(5) and (1) by unilaterally changing the groundskeepers’
schedules on the two occasions alleged.
VIII. RESPONDENT’S OTHER AFFIRMATIVE DEFENSES AND DEMAND
FOR ATTORNEY’S FEES
The proponent of an affirmative defense has the burden of es-
tablishing it. Babcock & Wilcox Construction Co., 361 NLRB
1127, 1140 (2014), citing Broadway Volkswagen, 342 NLRB
1244, 1246 (2004) (finding the burden on the party raising an
untimely charge defense under Sec. 10(b) of the Act), enfd. 483
F.3d 628 (9th Cir. 2007). Respondent’s answer included several
defenses that were not addressed at hearing or in its brief.
For example, Respondent’s answer defends that the allega-
tions should be deferred to arbitration. The collective-bargain-
ing agreement contains a grievance-arbitration provision, which
does not survive the expiration of the collective-bargaining
agreement unless the grievance arose before the expiration of the
collective bargaining agreement. Litton Financial Printing Div.
v. NLRB, 501 U.S. 190, 198–199, 205–206 (1991). Because
these events occurred after the collective-bargaining agreement
expired on December 31, 2017, deferral is inappropriate. An-
other example was that the charges were filed outside the 6-
month statute of limitations, which Respondent did not address
at hearing or in its brief. Therefore, the affirmative defenses,
other than those to the allegations above, are dismissed.
Respondent also demands attorneys’ fees from General Coun-
sel. Its brief contains no evidence of bad faith to support this
demand, which is denied.
CONCLUSIONS OF LAW
1. Respondent Northstar Memorial Group, LLC d/b/a Sky-
lawn Funeral Home, Crematory and Memorial Park, is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the Act.
2. The following are Respondent’s supervisors within the
meaning of Section 2(11) and/or agents within the meaning of
Section 2(13):
Richard McCown General Manager
Lorenzo Molina Superintendent
3. During the parties’ collective-bargaining agreement nego-
tiations, Ronald J. Holland was Respondent’s agent with the
meaning of Section 2(13).
4. The Charging Party Cemetery Workers, Golf Courses and
Green Attendants, SEIU Local 265 is a labor organization within
the meaning of Section 2(5) of the Act representing:
Full-time and regular part-time cemetery employees, including
grounds maintenance employees, mechanics, mausoleum
workers, and crematorium workers employed by the Employer
at its Skylawn Memorial Park California facility, excluding all
managerial employees, salespersons, morticians, embalmers,
office clerical employees, all other employees, guards and su-
pervisors, as defined in the National Labor Relations Act, as
amended.
5. The above unit is appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
6. On about May 3, 2018, Respondent violated Section
8(a)(1) of the Act by telling or requesting that an employee re-
move a pro-union sign from the employee’s personal vehicle
while the vehicle was parked in yard parking.
7. On about May 3 and two further incidents in May 2018,
Respondent violated Section 8(a)(1) of the Act by blocking the
view of a pro-union sign on an employee’s personal vehicle
while the vehicle was parked in yard parking.
8. On September 9, 2018, Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing the schedul-
ing for bargaining unit employees without affording the Union
an opportunity to bargain with Respondent about those changes,
and without bargaining with the Union to a good-faith impasse.
9. About September 23, 2018, Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing the scheduling
for bargaining unit employees without notifying the Union or af-
fording the Union an opportunity to bargain with the Respondent
about those changes and its effects, and without bargaining with
the Union to a good-faith impasse.
10. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent Northstar Memorial Group,
LLC d/b/a Skylawn Funeral Home, Crematory and Memorial
Park has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
Because Respondent violated Section 8(a)(5) and (1) by
changing the terms and conditions of employment of its unit em-
ployees without giving the Union an opportunity to bargain, I
shall order Respondent to rescind the unlawful unilateral
changes it made, upon request from the Union. The Respondent
also must make unit employees whole for any loss of earnings
and other benefits attributable to its unlawful unilateral changes.
In this regard, backpay 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 pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
Respondent must compensate affected employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 20, within
21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
awards to the appropriate calendar years for each employee.
NORTHSTAR MEMORIAL GROUP, LLC D/B/A SKYLAWN FUNERAL HOME, CREMATORY AND MEMORIAL PARK 23
AdvoServ of New Jersey, Inc., 363 NLRB No. 143, slip op. at 1–
2 (2016).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended41
ORDER
Respondent Northstar Memorial Group, LLC d/b/a Skylawn
Funeral Home, Crematory and Memorial Park, San Mateo, Cal-
ifornia, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Telling or asking employees to remove pro-union signs
from your personal vehicle while the vehicle is parked in yard
parking.
(b) Blocking view of prounion signs on employees’ personal
vehicles while the vehicles are parked in yard parking.
(c) Changing terms and condition of employment of its unit
employees, including changing shift schedules, without first no-
tifying the Union and giving it an opportunity to bargain.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees,
notify and, on request, bargain with the Union as the exclusive
collective-bargaining representative of the following appropriate
unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed
agreement:
Full-time and regular part-time cemetery employees, including
grounds maintenance employees, mechanics, mausoleum
workers, and crematorium workers employed by the Employer
at its Skylawn Memorial Park California facility, excluding all
managerial employees, salespersons, morticians, embalmers,
office clerical employees, all other employees, guards and su-
pervisors, as defined in the National Labor Relations Act, as
amended.
(b) Upon request by the Union, rescind the changes in the
terms and conditions of employment for its unit employees that
were unilaterally implemented in September 2018.
(c) Make unit employees whole for any loss of earnings and
other benefits suffered as a result of the unlawful unilateral
changes in the manner set forth in the Remedy section of the de-
cision.
(d) Compensate affected employees for the adverse tax con-
sequences, if any, of receiving lump-sum backpay awards, and
file with the Regional Director for Region 20, within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the appro-
priate calendar year for each employee.
(e ) Preserve and, within 14 days of request, or such additional
41 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes
due under the terms of this Order.
time as the Regional Director may allow for good cause shown,
provide at a reasonable place designated by the Board or its
agents, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records, in-
cluding an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days after service by the Region, post at its San
Mateo, California facility copies of the attached notice marked
“Appendix.”42 Copies of the notice, on forms provided by the
Regional Director for Region 20, after being signed by Respond-
ent’s authorized representative, shall be posted by Respondent
and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily
posted. In addition to physical 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
Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or covered by any
other material. If Respondent has gone out of business or closed
the facility involved in these proceedings, Respondent shall du-
plicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Respond-
ent at any time since August 1, 2018.
(g) Within 21 days after service by the Region, file with the
Regional Director for Region 20 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
Dated Washington, D.C. August 23, 2019
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT ask or tell you to remove pro-union signage from
your vehicle or block the sign while parked in yard parking.
WE WILL NOT unilaterally change terms and conditions of em-
ployment, including your work schedule, without giving the
42 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Union an opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce you in the exercise of the rights listed above.
WE WILL, before implementing any changes in wages, hours
or other terms and conditions of employment of bargaining unit
employees, notify and on request, bargain with the Union as the
exclusive collective-bargaining representative of our employees
in the following bargaining unit:
Full-time and regular part-time cemetery employees, including
grounds maintenance employees, mechanics, mausoleum
workers, and crematorium workers employed by the Employer
at its Skylawn Memorial Park California facility, excluding all
managerial employees, salespersons, morticians, embalmers,
office clerical employees, all other employees, guards and su-
pervisors, as defined in the National Labor Relations Act, as
amended.
WE WILL, on request by the Union, rescind the schedule
changes for our bargaining unit employees that were unilaterally
implemented in September 2018 and restore the status quo ante
that existed prior to the change until such time as we have bar-
gaining with the Union to an agreement or impasse.
WE WILL make you whole for any losses suffered as the result
of our unlawful unilateral changes to your work schedule, plus
interest.
WE WILL compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director for Region 20,
within 21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the backpay
awards to the appropriate calendar year for each employee.
NORTHSTAR MEMORIAL GROUP, LLC D/B/A
SKYLAWN FUNERAL HOME, CREMATORY
ANDMEMORIAL PARK
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20-CA-227245 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.