Synergy One Locating, LLC

National Labor Relations Board - Unpublished Board Decisions

Jul 1, 2015

28-CA-137972 (N.L.R.B. Jul. 1, 2015)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SYNERGY ONE LOCATING SERVICES, LLC
and SAFE MARKX, LLC, as Joint Employers
and Cases 28-CA-137972
28-CA-143708
INTERNATIONAL BROTHERHOOD OF 28-CA-145625
ELECTRICAL WORKERS, LOCAL 387, 28-CA-147819
AFL-CIO
DECISION AND ORDER
Statement of the Cases
On May 5, 2015, Synergy One Locating Services, LLC and Safe MarkX, LLC, as
Joint Employers (collectively, the Respondent), International Brotherhood of Electrical
Workers, Local 387, AFL-CIO (the Union), and the General Counsel of the National
Labor Relations Board entered into a Formal Settlement Stipulation, subject to the
Board’s approval, providing for the entry of a consent order by the Board and a consent
judgment by any appropriate United States Court of Appeals. The parties waived all
further and other proceedings before the Board to which they may be entitled under the
National Labor Relations Act and the Board’s Rules and Regulations, and the
Respondent waived its right to contest the entry of a consent judgment or to receive
further notice of the application therefor.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The Formal Settlement Stipulation is approved and made a part of the record, and
the proceeding is transferred to and continued before the Board in Washington, D.C.,
for the entry of a Decision and Order pursuant to the provisions of the Formal
Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following
Findings of Fact
1. The Respondent’s business
At all material times, Synergy One Locating Services, LLC (Respondent Synergy)
has been a limited liability company with an office and place of business in Phoenix,
Arizona, and has been engaged in providing utility locating services for utility
companies.
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During the 12-month period ending March 9, 2015, Respondent Synergy, in
conducting its business operations described above, provided services valued in excess
of $50,000 in states other than the State of Arizona.
At all material times, Respondent Synergy has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
At all material times, Safe MarkX, LLC (Respondent Safe MarkX) has been a
limited liability company with an office and place of business in Phoenix, Arizona, and
has been engaged in providing utility locating services for utility companies.
During the 12-month period ending March 9, 2015, Respondent Safe MarkX, in
conducting its business operations described above, provided services valued in excess
of $50,000 in states other than the State of Arizona.
At all material times, Respondent Safe MarkX has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
At all material times, Respondent Synergy and Respondent Safe MarkX have
been parties to a contract which provides that Respondent Synergy will utilize the utility
locating services and employees of Respondent Safe MarkX.
At all material times, Respondent Safe MarkX has possessed and exercised
control over the labor relations policy of and administered a common labor policy with
respect to Respondent Synergy’s employees.
At all material times, Respondent Safe MarkX and Respondent Synergy have
been joint employers of certain employees referred or considered for employment by
Respondent Safe MarkX and employed or considered for employment by Respondent
Synergy.
2. The labor organization involved
The International Brotherhood of Electrical Workers, Local 387, AFL-CIO (the
Union) is a labor organization within the meaning of Section 2(5) of the Act.
3. The appropriate unit
The following employees of the Respondent (the unit) constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time locators and lead locators employed by
the Employer in the State of Arizona, excluding all other employees,
guards, and supervisors as defined in the Act.
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Since about December 16, 2014, a majority of the employees in the unit
designated and selected the Union as their representative for the purposes of collective
bargaining with the Respondent. This is embodied in a Certification of Representative
that the Regional Director for Region 28 of the Board issued on December 29, 2014.
At all times since about December 29, 2014, based upon Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining representative of the unit.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board orders that:
The Respondent, Synergy One Locating Services, LLC and Safe MarkX, LLC,
as Joint Employers, Phoenix, Arizona, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Promulgating overly broad rules that employees cease talking with other
fellow and former employees.
(b) Promulgating an overly broad rule prohibiting its employees from engaging in
union activity.
(c) Threatening employees by inviting them to resign in order to discourage their
union activities.
(d) Threatening employees with loss of employment and closure of the
Respondent’s operations because of their support for the Union.
(e) Imposing more onerous and rigorous terms and conditions of employment on
its employees by prohibiting them from assisting other employees with work
assignments or denying employees assistance from other employees with work
assignments.
(f) Issuing discriminatory directives to employees not to assist employees with
work assignments.
(g) Threatening employees with wage reduction because of their support for the
Union.
(h) Threatening employees with unspecified reprisals because of their support
for the Union.
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(i) Disparaging employees for participating in the Board’s process.
(j) Threatening employees with termination if they engaged in union activity.
(k) Threatening employees with stricter enforcement of work rules since they
selected the Union as their bargaining representative.
(l) Threatening employees with discharge if they failed to adhere to the stricter
enforcement of work rules in place since they selected the Union as their bargaining
representative.
(m) Threatening employees with physical violence if they continued supporting
the Union.
(n) Threatening employees by informing them that employees were terminated
because of their participation in the Board’s process and because of their support for
the Union.
(o) Threatening employees with termination because they engaged in union and
protected activities.
(p) Interrogating employees about their concerted activities or activities on behalf
of the Union.
(q) Soliciting employee complaints and grievances to discourage their support
for the Union.
(r) Soliciting employees to remove the Union as their collective-bargaining
representative.
(s) Dealing directly with employees concerning terms and conditions of
employment.
(t) Failing and refusing to recognize and bargain in good faith with the Union as
the exclusive collective-bargaining representative of employees in the unit.
(u) Discharging employees because they engaged in concerted activities
involving their terms and conditions of employment or in activities in support of the
Union, and in order to discourage membership in the Union or in any other labor
organization, or for participating in the Board’s process.
(v) Refusing to reinstate employees because of their support for the Union.
(w) Unilaterally changing the terms and conditions of employment of its unit
employees, by strictly enforcing its rules, reducing its flexibility with the rules, and
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reducing the range of hours available to work, without first notifying the Union and
reaching agreement with the Union or reaching an overall good faith impasse with the
Union.
(x) Imposing discipline, including discharge, upon bargaining unit employees
without first notifying the Union and providing it with the opportunity to bargain over the
discipline to be imposed.
(y) Refusing to provide the Union with information that is relevant and necessary
to its role as employees’ exclusive collective-bargaining representative.
(z) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their rights to self organization, to form labor organizations, to join or
assist the Union or any other labor organization, to bargain collectively through
representatives of their own choosing and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Upon request, bargain collectively with the Union as the exclusive
representative of the following employees with respect to rates of pay, wages, hours of
employment and other conditions of employment, and, if an understanding is reached,
reduce it to writing and sign it; on resumption of bargaining, the Union’s status as the
exclusive collective-bargaining representative of the unit shall be extended for 12
months thereafter, as if the initial year of the certification had not expired in whole or in
part:
All full-time and regular part-time locators and lead locators employed by
the Employer in the State of Arizona, excluding all other employees,
guards, and supervisors as defined in the Act.
(b) Within 14 days from the date of the Board’s Order, if it has not already done
so, offer, in writing, Mason Crisenbacker, Sean Cherry, Jacob Cherry, Troy Hager,
Henry Maurice Pettit, Adam Valdez, Kevin Schroeder, Devin Koivisto, Timothy
Montanez, Joshua Merino, Bryan McBride, Joe Moure, Edwin Cyrus Hare IV, Dan
Huebner, David Venegas, Cory Jackson, James Redondo, Michael Cummings, Jason
Lantrip, Manny Madrid, Pete Martinez, Stan Barker, Greg Digiordi, Garret Forrest, Sal
Medina, and Jeff Rose full reinstatement to their former jobs, or if those jobs no longer
exist, to substantially equivalent positions, without prejudice to their seniority or other
rights or privileges previously enjoyed.
(c) Within 14 days from the date of the Board’s Order, remove from the
Respondent’s files any reference to the discharge of Crisenbacker, S. Cherry, J. Cherry,
Hager, Pettit, Valdez, Schroeder, Koivisto, Montanez, Merino, McBride, Moure, Hare,
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Huebner, Venegas, Jackson, Redondo, Cummings, Lantrip, Madrid, Martinez, Barker,
Digiordi, Forrest, Medina, and Rose, and within 3 days thereafter, notify those
employees, in writing, that this was done and that the discharges and discipline will not
be used against them in any way.
(d) Make whole the following employees for loss of pay suffered by reason of the
discrimination against them, by payment to them of the amounts set forth opposite their
respective names and at the times set forth in the schedule as reflected in Appendix B.
If any installment is not paid on or before the date due, the full unpaid amount shall
become immediately due and payable and the Board may, without further notice,
institute proceedings against the Respondent for the collection of the full indebtedness
remaining due, with additional interest due on the entire unpaid balance from the date of
default until full payment is received, computed in accordance with the formula set forth
in New Horizons, Inc., 283 NLRB 1173 (1987).
(e) Make whole the above-named employees for any additional loss of pay
caused by the Respondent’s failure, if any, to reinstate them in accordance with the
provisions of this Order, within 14 days from the date of this Order, by payment to them
of the respective amounts that they would have earned if properly reinstated, from the
15th day after the date of the Board’s Order to the date of a proper offer of
reinstatement, less their net earnings during such period, said amounts to be computed
on a quarterly basis.
(f) Before implementing any changes in wages, hours, or other terms and
conditions of employment, notify and, upon request, bargain collectively and in good
faith with the Union as the exclusive collective-bargaining representative of unit
employees.
(g) Provide the Union with the information requested in paragraphs 1 through 16
of its December 17, 2014 request.
(h) Within 14 days of service by the Region, post at its facilities in the Phoenix
metropolitan area, copies of the attached notice marked “Appendix A.” Copies of the
notice, on forms provided by Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places where notices to
employees are customarily posted. The Respondent will take reasonable steps 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 the facility involved in these proceedings, the Respondent 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 2, 2014.
(i) In addition to physical posting of paper Notices, the Respondent shall
distribute Notices electronically, by email, posting on an intranet or an internet site, or
other electronic means, if the Respondent customarily communicates with its
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employees by such means. The electronic posting shall remain posted for 60
consecutive days from the date it was originally posted. The Respondent will email the
Region’s Compliance Officer at cheryl.leavengood@nlrb.gov with a link to the electronic
posting location on the same day as the posting. In the event that passwords or other
log-on information is required to access the electronic posting, the Respondent agrees
to provide such access information to the Region’s Compliance Officer. If the Notice is
distributed via e-mail, the Respondent will forward a copy of the email distributed to the
Regional Compliance Officer.
(j) The Notice(s) will be read aloud by a responsible agent of the Respondent, by
or in the presence of Dervon Haskins (Haskins), Brian Jennings (Jennings), or Mike
Sturgill (Sturgill), and in the presence of an agent of the Board, or at the Respondent’s
option by an agent of the Board in the presence of Haskins, Jennings, or Sturgill, to all
employees employed by the Respondent at its Arizona job sites, including at multiple
meetings and in other languages, if necessary as determined by the Regional Director,
to ensure that it is read aloud to all employees, within 14 days from the commencement
of the standard posting period.
(k) This stipulation is subject to the approval of the Board and, immediately upon
the approval by the Board, it will be retroactively effective to the date of execution of the
stipulation.
(l) Within 21 days after service by the Region, file with the Regional Director for
Region 28 a sworn certificate of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C., July 1, 2015
___________________________________
Kent Y. Hirozawa, Member
___________________________________
Harry I. Johnson, III, Member
___________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER
AND A CONSENT JUDGMENT OF ANY APPROPRIATE
UNITED STATES COURT OF APPEALS
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT fail and refuse to bargain in good faith with the International
Brotherhood of Electrical Workers Union, AFL-CIO (the Union) as the exclusive
collective-bargaining representative of employees in the following appropriate
bargaining unit (the unit):
All full-time and regular part-time locators and lead locators employed by
the Employer in the State of Arizona; excluding all other employees,
guards, and supervisors as defined in the Act.
WE WILL NOT implement changes that affect your wages, hours, and other terms and
conditions of employment without first providing notice and an opportunity to bargain to
the Union, including by unilaterally implementing our policies concerning daily schedule
flexibility, our 30-ticket rule, overtime, assignment to project crews, insurance,
assignment of work areas, provision of locating equipment batteries, and work
productivity (sent via text message on December 16, 2014).
WE WILL NOT bypass the Union or deal directly with you by telling employees that if
any work ticket is two days late, employees will be immediately discharged.
WE WILL NOT bypass the Union or deal directly with you by promising to remedy
grievances.
WE WILL NOT refuse to provide the Union with information that is relevant and
necessary to its role as your bargaining representative.
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WE WILL NOT fail to give the Union notice and an opportunity to bargain before we
discharge you.
WE WILL NOT promulgate overly broad rules that prohibit you from talking with other
fellow and former employees.
WE WILL NOT promulgate an overly broad rule prohibiting you from engaging in union
activity.
WE WILL NOT threaten employees with wage reduction because of their support for
the Union.
WE WILL NOT threaten employees with unspecified reprisals because of their support
for the Union.
WE WILL NOT threaten employees with physical violence if they continued supporting
the Union.
WE WILL NOT threaten employees with termination because they engaged in union
and protected activities.
WE WILL NOT solicit employee complaints and grievances to discourage their support
for the Union.
WE WILL NOT solicit employees to remove the Union as their collective-bargaining
representative.
WE WILL NOT disparage you because you engaged in union activity or participated in
the National Labor Relations Board’s processes.
WE WILL NOT tell you that the business will close if you try to form a union.
WE WILL NOT tell you that you will lose your job or that your wages will be cut if you try
to form a union.
WE WILL NOT more strictly enforce work rules because you have engaged in union
and protected concerted activities, or threaten you with discharge for failing to follow
strictly enforced work rules.
WE WILL NOT threaten you by telling you that it is futile for you to support the Union.
WE WILL NOT threaten you with reprisals if you file charges with the National Labor
Relations Board.
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WE WILL NOT threaten you with unspecified reprisals by informing you that we intend
to issue a rule to employees prohibiting them from engaging in union or protected
concerted activities.
WE WILL NOT invite you to quit because you engage in union or protected concerted
activities.
WE WILL NOT tell you that you cannot talk to others about the terms and conditions of
your employment.
WE WILL NOT ask you about your concerted activities with other employees.
WE WILL NOT ask you about your union activities.
WE WILL NOT threaten you with discharge by asking you to resign because you
engaged in concerted activities.
WE WILL NOT impose onerous and rigorous terms and conditions of employment on
you by prohibiting you from assisting, or denying assistance to other employees with
their work assignments because you engage in union and concerted activities.
WE WILL NOT issue discriminatory directives to you by prohibiting you from assisting,
or denying assistance to other employees with their work assignments because you
engage in union and concerted activities.
WE WILL NOT discharge you, refuse to hire you, or refuse to consider you for hire,
because you engage in union activities, concerted activities or seek to file charges
under the National Labor Relations Act.
WE WILL NOT in any other manner interfere with your rights under Section 7 of the Act.
WE WILL, upon request, bargain with the Union as the exclusive representative of the
bargaining unit employees with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment and, if an understanding is reached,
reduce it to writing and sign it. On resumption of bargaining, the Union’s status as the
exclusive collective-bargaining representative of the unit shall be extended for 12
months thereafter, as if the initial year of the certification had not expired in whole or in
part.
WE WILL make Mason Crisenbacker, Sean Cherry, Jacob Cherry, Troy Hager, Henry
Maurice Pettit, Adam Valdez, Kevin Schroeder, Devin Koivisto, Timothy Montanez,
Joshua Merino, Bryan McBride, Joe Moure, Edwin Cyrus Hare IV, Dan Huebner, David
Venegas, Cory Jackson, James Redondo, Michael Cummings, Jason Lantrip, Manny
Madrid, Pete Martinez, Stan Barker, Greg Digiordi, Garret Forrest, Sal Medina, and Jeff
Rose whole for any loss of earnings and other benefits suffered as a result of our
discharge of them, with interest.
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WE WILL remove from our files all references to the discharges of Mason
Crisenbacker, Sean Cherry, Jacob Cherry, Troy Hager, Henry Maurice Pettit, Adam
Valdez, Kevin Schroeder, Devin Koivisto, Timothy Montanez, Joshua Merino, Bryan
McBride, Joe Moure, Edwin Cyrus Hare IV, Dan Huebner, David Venegas, Cory
Jackson, James Redondo, Michael Cummings, Jason Lantrip, Manny Madrid, Pete
Martinez, Stan Barker, Greg Digiordi, Garret Forrest, Sal Medina, and Jeff Rose, and
WE WILL notify them in writing that this has been done and that the discharges will not
be used against them in any way.
WE WILL offer, in writing, if we have not already done so, Mason Crisenbacker, Sean
Cherry, Jacob Cherry, Troy Hager, Henry Maurice Pettit, Adam Valdez, Kevin
Schroeder, Devin Koivisto, Timothy Montanez, Joshua Merino, Bryan McBride, Joe
Moure, Edwin Cyrus Hare IV, Dan Huebner, David Venegas, Cory Jackson, James
Redondo, Michael Cummings, Jason Lantrip, Manny Madrid, Pete Martinez, Stan
Barker, Greg Digiordi, Garret Forrest, Sal Medina, and Jeff Rose full reinstatement to
their former jobs, or if those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges previously enjoyed.
WE WILL provide the Union with the information it requested in paragraphs 1 through
16 of its December 17, 2014 request.
SYNERGY ONE LOCATING SERVICES, LLC
and SAFE MARKX, LLC, as Joint Employers
The Board’s decision can be found at www.nlrb.gov/case/28-CA-137972 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.
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APPENDIX B