RELCO LOCOMOTIVES, INC.

National Labor Relations Board - Board Decisions

Nov 12, 2014

361 N.L.R.B. 911 (N.L.R.B. 2014)

RELCO LOCOMOTIVES, INC. 911
Relco Locomotives, Inc. and International Brother-
hood of Electrical Workers, Local Union No.
347. Case 18–CA–074960
November 12, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On June 12, 2013, the Board issued a Decision and
Order in this proceeding, which is reported at 359 NLRB
1145. Thereafter, the Respondent filed a petition for
review in the United States Court of Appeals for the
Eighth Circuit, and the General Counsel filed a cross-
application for enforcement.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals vacated the Board’s Decision and Order and
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein.1 Accordingly, we affirm the judge’s rul-
1 In adopting the judge’s finding that the Respondent knew that em-
ployees Mark Douglas and Jerry Sindt engaged in union activity, we
rely on Supervisor Cliff Benboe’s separate unlawful interrogations of
Douglas and Sindt, the timing of Douglas’s and Sindt’s terminations,
the Respondent’s general knowledge of its employees’ union activity,
the Respondent’s otherwise demonstrated union animus, and the pre-
textual reasons offered by the Respondent for the terminations. See
North Atlantic Medical Services, 329 NLRB 85, 85–86 (1999) (finding
that the Board may infer employer knowledge of specific employees’
union activity based on “the timing of the alleged discriminatory ac-
tions; the Respondent’s general knowledge of its employees’ union
activities; the Respondent’s animus against the Union; and the pre-
textual reasons given for the adverse personnel actions”), enfd. 237
F.3d 62 (1st Cir. 2001). We do not rely on Evenflow Transportation,
Inc., 358 NLRB 695, 697 (2012), cited in the vacated Decision and
Order.
In adopting the judge’s findings that the Respondent unlawfully so-
licited grievances and instructed an employee not to distribute authori-
zation cards on “company time,” we do not rely on Latino Express, 358
NLRB 823 (2012), but rather on the decisions cited in that case for the
relevant propositions, nor do we rely on Loparex LLC, 353 NLRB 1224
(2009), enfd. 591 F.3d 540 (7th Cir. 2009), cited by the judge.
ings, findings, and conclusions and adopt the judge’s
recommended Order to the extent and for the reasons
stated in the Decision and Order reported at 359 NLRB
1145, which is incorporated herein by reference. The
judge’s recommended Order, as further modified herein,
is set forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Relco Locomotives, Inc., Albia, Iowa, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively questioning its employees about their
union activities on behalf of International Brotherhood of
Electrical Workers, Local Union No. 347, or any other
labor organization.
(b) Instructing employees not to distribute union au-
thorization cards on company time.
(c) Soliciting employee complaints and grievances and
impliedly promising to remedy those complaints and
grievances in order to discourage employees from select-
ing union representation.
(d) Maintaining a distribution and solicitation policy
requiring employees to seek authorization from man-
agement before employees engage in any distribution or
solicitation, including that during nonwork time and in
nonwork areas.
(e) Discharging employees because they engage in un-
ion activities or other protected concerted activities to
discourage employees from engaging in those activities.
(f) 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 this Order, rescind
the Respondent’s handbook rule stating, “Employees are
not permitted to . . . solicit or distribute literature without
In finding a broad cease-and-desist order and a public reading of the
notice appropriate, we agree with the rationale in the Amended Remedy
section of the vacated Decision and Order. We note that the United
States Court of Appeals for the Eighth Circuit enforced the Board’s
decisions in Relco Locomotives, Inc. (Relco I), 358 NLRB 229 (2012)
(cited in the vacated Decision and Order and the judge’s decision), and
Relco Locomotives, Inc. (Relco II), 358 NLRB 298 (2012) (same), both
of which found that the Respondent committed multiple violations of
the Act. NLRB v. Relco Locomotives, Inc., 734 F.3d 764 (8th Cir.
2013). Accordingly, both decisions are binding on the Respondent and,
together with this case, establish its proclivity to violate the Act and its
general disregard for its employees’ rights.
2 We shall modify the judge’s recommended Order and substitute a
new notice in accordance with our recent decision in Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). We shall further
modify the notice in accordance with our decision in Durham School
Services, 360 NLRB 694 (2014).
361 NLRB No. 96

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
management approval,” and notify employees in writing
that this has been done.
(b) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the un-
lawful solicitation and distribution rule has been rescind-
ed, or (2) provide the language of a lawful rule; or pub-
lish and distribute to all current employees a revised em-
ployee handbook that (1) does not contain the unlawful
rule, or (2) provides the language of a lawful rule.
(c) Within 14 days from the date of this Order, offer
employees Mark Douglas and Jerry Sindt full reinstate-
ment to their former positions, or if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
(d) Make Mark Douglas and Jerry Sindt whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them in the manner set forth in
the remedy section of this decision.
(e) Compensate Mark Douglas and Jerry Sindt for the
adverse tax consequences, if any, of receiving a lump-
sum backpay award, and file a report with the Social
Security Administration allocating the backpay award to
the appropriate calendar quarters.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful terminations
of Mark Douglas and Jerry Sindt, and within 3 days
thereafter, notify them in writing that this has been done
and that the terminations will not be used against them in
any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Albia, Iowa copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 18, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed its operations at Albia, Iowa the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since October 1, 2011.
(i) Within 14 days after service by the Region, hold a
meeting or meetings during working time and at the Re-
spondent’s facility, and scheduled to ensure the widest
possible attendance, at which the attached notice is to be
read by a responsible management official of the Re-
spondent or by a Board agent, in the presence of a re-
sponsible management official of the Respondent.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 18 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT coercively question you about your ac-
tivities on behalf of International Brotherhood of Electri-
cal Workers, Local Union No. 347 or any other labor
organization.
WE WILL NOT instruct you not to distribute union au-
thorization cards on company time.
WE WILL NOT solicit your complaints and grievances
and impliedly promise to remedy those complaints and

RELCO LOCOMOTIVES, INC. 913
grievances in order to discourage you from selecting un-
ion representation.
WE WILL NOT maintain a solicitation and distribution
policy requiring you to obtain management approval for
soliciting and distributing in nonwork areas during non-
worktime.
WE WILL NOT discharge you because you engage in ac-
tivities on behalf of International Brotherhood of Electri-
cal Workers, Local Union No. 347, or any other labor
organization, to discourage you from engaging in union
activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL, within 14 days from the date of the Board’s
Order, rescind our employee handbook rule stating,
“Employees are not permitted to . . . solicit or distribute
literature without management approval,” and we will
notify you in writing that this has been done.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful solici-
tation and distribution rule has been rescinded, or (2)
provide the language of a lawful rule; or WE WILL publish
and distribute to all current employees a revised employ-
ee handbook that (1) does not contain the unlawful rule,
or (2) provides the language of a lawful rule.
WE WILL, within 14 days from the date of the Board’s
Order, offer employees Mark Douglas and Jerry Sindt
full reinstatement to their former positions or, if these
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make Mark Douglas and Jerry Sindt whole
for any loss of earnings and other benefits suffered as a
result of their unlawful terminations in the manner set
forth in Board’s decision.
WE WILL compensate Mark Douglas and Jerry Sindt
for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and WE WILL file a report with
the Social Security Administration allocating the back-
pay award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful terminations of Mark Douglas and Jerry Sindt, and
WE WILL, within 3 days thereafter, notify them in writing
this has been done and their terminations will not be used
against them in any way.
RELCO LOCOMOTIVES, INC.

The Board’s decision can be found at
www.nlrb.gov/case/18–CA–074960 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.