361 N.L.R.B. 921 (N.L.R.B. 2014)

Ozburn-Hessey Logistics, LLC

National Labor Relations Board - Board DecisionsNov 17, 2014

361 N.L.R.B. 921 (N.L.R.B. 2014)

OZBURN-HESSEY LOGISTICS, LLC 921 Ozburn-Hessey Logistics, LLC and United Steel- workers Union. Cases 26–CA–024057, 26–CA– 024065, 26–CA–024090, and 26–RC–008635 November 17, 2014 DECISION, ORDER, AND CERTIFICATION BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND SCHIFFER On May 2, 2013, the Board issued a Decision, Order, and Direction in this proceeding, which is reported at 359 NLRB 1025 (2013).1 Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit. At the time of the Decision, Order, and Direction, the composition of the Board included two persons whose appointments to the Board had been challenged as consti- tutionally infirm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Can- ning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. On June 27, 2014, the Board issued an order setting aside its Deci- sion, Order, and Direction and retained this case on its docket for further action as appropriate.2 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the judge’s decision and the record in light of the exceptions and briefs. We have also considered the now-vacated Decision, Order, and Direction, and we agree with the rationale set forth therein.3 Accordingly, we affirm the judge’s rulings, findings, and conclusions and adopt the judge’s recommended Order to the extent and for the reasons stated in the Decision, Order, and Direction re- ported at 359 NLRB 1025, which is incorporated herein by reference.4 1 On May 13, 2013, the Board issued an Order denying the Re- spondent’s emergency motion to stay the opening and counting of ballots. We agree with that denial for the reasons stated in the Board’s Order. 2 Accordingly, on August 18, 2014, on motion by the Board, the court of appeals dismissed the case. 3 In finding that the Respondent’s interrogation of employee Sharon Shorter also created an impression of unlawful surveillance, we rely on Conley Trucking, 349 NLRB 308, 315 (2007), enfd. 520 F.3d 629 (6th Cir. 2008). We do not rely on McClain & Co., 358 NLRB 1070 (2012), cited in the vacated Decision, Order, and Direction. 4 We shall modify the judge’s recommended Order and notice in ac- cordance with our recent decisions in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), and Durham School Services, 360 NLRB 694 (2014). In adopting the judge’s recommendation to include a notice reading remedy, we do not rely on Jason Lopez’ Planet Earth Landscape, 358 NLRB 383 (2012), cited in the vacated Decision, Order, and Direction. In modifying the judge’s remedy to permit the Respondent, at its op- The Decision, Order, and Direction adopted, inter alia, the administrative law judge’s resolution of 10 chal- lenged ballots. Having also adopted that resolution here- in, our normal practice would be to direct the Regional Director to open and count the challenged ballots, to pre- pare and serve on the parties a revised tally of ballots, and to issue an appropriate certification. However, the Regional Director has already performed these ministeri- al tasks in response to the Board’s original Decision, Order, and Direction, and we see no purpose to be served by requiring the Regional Director to repeat them. Thus, the revised tally of ballots that issued on May 14, 2013, accurately presents the results of the election, and the Certification of Representative issued by the Acting Re- gional Director on May 24, 2013, is based upon the valid votes cast. The revised tally shows 169 for and 166 against the Petitioner, with no challenged ballots. There is no question that a majority of valid ballots was cast for the Union, and there is no question that the certification issued by the Acting Regional Director is substantively correct. Nevertheless, in an abundance of caution and in an effort to avoid further litigation that would only serve to further delay this matter, we will issue a new Certifi- cation of Representative. ORDER The National Labor Relations Board orders that the Respondent, Ozburn-Hessey Logistics, LLC (OHL), Memphis, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with discipline and other unspecified reprisals if they engage in union or other protected concerted activities. (b) Interrogating employees concerning their union or other protected concerted activities. (c) Engaging in surveillance of employees’ union or other protected concerted activities. (d) Creating the impression that employee union ac- tivities are under surveillance. (e) Confiscating union materials and related docu- ments from employee break areas. (f) Telling employees who support the Union to resign. (g) Terminating, issuing final warnings, or otherwise disciplining employees for engaging in union activities. tion, to have its managers, Senior Vice President of Operations Randall Coleman and Director of Operations Phil Smith, read the notice aloud to employees during working time in the presence of a Board agent, or to permit a Board agent to read the notice aloud to employees in those managers’ presence, we rely on HTH Corp., 356 NLRB 1397, 1404 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012). We do not rely on Marquez Bros. Enterprises, 358 NLRB 509 (2012), cited in the vacated Decision, Order, and Direction. 361 NLRB No. 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 922 (h) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer Carolyn Jones full reinstatement to her former job or, if such job no longer exists, offer her a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make Carolyn Jones whole for any loss of earnings and benefits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of this decision. (c) Compensate Carolyn Jones for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Admin- istration allocating the backpay award to the appropriate calendar quarters. (d) Within 14 days from the date of the Board’s Order, remove from its files any reference to Carolyn Jones’ unlawful discharge, and Jennifer Smith’s unlawful final warning, and within 3 days thereafter notify them in writ- ing that this has been done and that their discipline will not be used against them in any way. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the backpay amounts due under the terms of this Order. (f) Within 14 days after service by the Region, post at its Memphis, Tennessee facility copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by OHL’s authorized representative, shall be physically posted by OHL and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily post- ed. In addition to physical posting of paper notices, no- tices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily com- municates with its employees by such means. Reasona- 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ble steps shall be taken by OHL to ensure that the notices are not altered, defaced, or covered by any other materi- al. In the event that, during the pendency of these pro- ceedings, OHL has gone out of business or closed the facility involved in these proceedings, OHL shall dupli- cate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by it at the facility at any time since April 11, 2011. (g) Within 14 days after service by the Region, hold a meeting or meetings at the facility, during working hours, which will be scheduled to ensure the widest pos- sible attendance, at which the attached notice marked “Appendix” is to be read to the unit employees by Ran- dall Coleman and Phil Smith in the presence of a Board agent, or, at the Respondent’s option, by a Board agent in those officials’ presence. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers, and that it is the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All full time custodians, customer service representa- tives, senior customer service representatives, cycle counters, inventory specialists, maintenance, mainte- nance techs, material handlers, operators 1, operators 2, operators 3, quality assurance coordinators, returns clerks, and team leads employed by the Employer at its Memphis, Tennessee facilities located at: 5510 East Holmes Road; 5540 East Holmes Road; 6265 Hickory Hill Road; 6225 Global Drive; 4221 Pilot Drive; and 5050 East Holmes Road. Excluded: All other employ- ees, including office clerical and professional employ- ees, guards, and supervisors as defined in the Act. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. OZBURN-HESSEY LOGISTICS, LLC 923 FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten you with discipline and other unspecified reprisals because you support the United Steelworkers Union (the Union) or any other union. WE WILL NOT interrogate you about your union activi- ties. WE WILL NOT engage in surveillance of your union ac- tivities. WE WILL NOT create the impression that your union ac- tivities are under surveillance. WE WILL NOT confiscate union materials and related documents from employee break areas. WE WILL NOT tell employees who support the Union to quit. WE WILL NOT fire you, issue final warnings, or other- wise discriminate against you because you support the Union or any other union. WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of the rights de- scribed above. WE WILL, within 14 days from the date of this Order, offer Carolyn Jones full reinstatement to her former job or, if her job no longer exists, to a substantially equiva- lent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Carolyn Jones whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL compensate Carolyn Jones for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and WE WILL file a report with the Social Se- curity Administration allocating the backpay award to the appropriate calendar quarters. WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful dis- charge of Carolyn Jones and the unlawful written final warning to Jennifer Smith. WE WILL, within 3 days thereafter, notify Carolyn Jones and Jennifer Smith in writing that this has been done and that the discharge and final warning will not be used against them in any way. WE WILL hold a meeting or meetings at the facility, during working hours, at which this notice will be read aloud to you by Randall Coleman and Phil Smith (or the current senior vice president of operations and director of operations), in the presence of a Board agent, or by a Board agent in those officials’ presence. OZBURN-HESSEY LOGISTICS, LLC The Board’s decision can be found at http://www.nlrb.gov/case/26–CA–024057 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.