BOZZUTO'S, INC., (2017)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.
Bozzuto’s, Inc. and United Food and Commercial Workers Union, Local 919. Case 01–CA–115298
December 12, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
On June 25, 2015, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and supporting, answering, and reply briefs. The General Counsel filed cross exceptions and supporting and answering briefs.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2
1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
There were no exceptions to the judge’s findings that the Respondent violated Sec. 8(a)(1) of the Act when, on October 1, 2013, while explicitly acknowledging its awareness of the union organizing campaign, it announced and implemented wage increases, and by maintaining a policy that conditioned continued employment on an agreement by employees to refrain from talking about any discipline that they have received or about their terms and conditions of employment.
2 In accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143, slip op. at 1 (2016), we shall modify the judge’s recommended tax compensation and Social Security reporting remedy.
In accordance with our recent decision in King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir. 2017), we shall also amend the remedy to require the Respondent to compensate affected employees for their search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings. For the reasons stated in his separate opinion in King Soopers, supra, slip op. at 9-16, Chairman Miscimarra would adhere to the Board’s former approach, treating search-for-work and interim employment expenses as an offset against interim earnings.
Last, we amend the judge’s remedy to reflect the correct date on which McCarty’s backpay and other monetary remedies should be tolled: May 28, 2014, the date of the last opportunity to accept the Respondent’s reinstatement offer and the date on which McCarty rejected it. See Cliffstar Transportation Co., 311 NLRB 152, 154-155 (1993) (quoting Southern Household Products Co., 203 NLRB 881, 882 (1973) (“backpay is tolled on the date of actual reinstatement[;] on the date of rejection; or in the case of those who did not reply, on the date of the last opportunity to accept.”)).
This case presents several issues related to a union organizing campaign at the Respondent’s facility in Cheshire, Connecticut. The issues include whether the Respondent violated Section 8(a)(1) by interrogating employee Todd McCarty; whether the Respondent violated Section 8(a)(3) and (1) by suspending and discharging McCarty, and by disciplining and subsequently discharging employee Patrick Greichen; and whether to order the Respondent to read our remedial notice aloud to employees on work time.
The judge found all the foregoing violations, but declined to grant the General Counsel’s request to have the Respondent read the notice aloud. We affirm the judge’s findings, and we grant the General Counsel’s noticereading request.
The credited evidence establishes that, sometime in September 2013,3 Todd McCarty contacted a representative of the Union. On September 22, McCarty, Patrick Greichen, and two other employees met with the union representative to discuss organization at the Respondent’s facility. On Monday, September 23, McCarty and Greichen began soliciting employees to support the Union. As the judge found, they initially tried to keep their union activity under the radar. Despite their efforts, the Respondent became aware of the union activity by September 26.4
1. Todd McCarty
As noted above, the Union’s organizing campaign began on Monday, September 23. Approximately 1 week later, Rick Clark, the Respondent’s vice president of warehouse, transportation and risk management, stopped employee and union supporter Todd McCarty as he was exiting the restroom and asked him what was going on with “this union stuff.” McCarty replied that he was not going to talk to Clark about it. The General Counsel alleges, and the judge found, that this inquiry constituted an unlawful interrogation. We agree.5
We shall modify the judge’s recommended Order and substitute a new notice to reflect these remedial changes and to conform to the Board’s standard remedial language.
3 All dates are in 2013 unless otherwise noted.
4 The record shows that sometime before October 1, an employee told the Respondent’s vice president of warehouse, transportation and risk management, Rick Clark, of McCarty’s involvement in the organization efforts, but, as discussed infra, McCarty, who testified that, initially, he “was [a] little more covert [than Greichen],” did not become open about his support until later.
5 Contrary to our dissenting colleague’s assumption that the interrogation took place on September 27, the record and the judge’s decision as a whole indicate that it occurred about October 1. While the complaint alleges that, “on or about [September 27], the Respondent interrogated employees,” the judge, relying on McCarty’s testimony, stated that the interaction occurred “the week after the campaign started.” As noted supra, the campaign began on Monday, September 23. It goes
In determining whether the questioning of an employee constitutes an unlawful interrogation, the Board considers the totality of the circumstances, including whether the employee is an open and active union supporter; whether there is a history of employer antiunion hostility or discrimination; the nature of the information sought (especially if it could result in action against individual employees); the position of the questioner in the company hierarchy; and the place and method of interrogation. See Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985); Relco Locomotives, 359 NLRB 1145, 1156 (2013), affd. and incorporated by reference at 361 NLRB No. 96 (2014); Westwood Health Care Center, 330 NLRB 935, 939 (2000); Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). The Board also considers the timing of the interrogation and whether other unfair labor practices were occurring or had occurred. See Vista Del Sol Health Services, Inc. d/b/a Vista Del Sol Healthcare, 363 NLRB No. 135, slip op. at 17 (2016) (citing Gardner Engineering, 313 NLRB 755, 755 (1994), enfd. as modified on other grounds 115
F.3d 636 (9th Cir. 1997)); see also Seton Co., 332 NLRB 979, 982 (2000) (in finding an unlawful interrogation, Board noted that “the interrogation occurred against a background of numerous other unfair labor practices…”); EDP Medical Computer Systems, 284 NLRB 1232, 1264–1265 (1987) (finding that two conversations, in and of themselves, might not be considered coercive, but when viewed in the context of the employer’s 8(a)(1) conduct, the questioning was coercive as it reasonably tends to color employees’ perception of the character and reason for the inquiries); see also Greenfield Die & Mfg. Corp., 327 NLRB 237, 237 (1998) (finding employer’s interrogation of leading union activists unlawful where it occurred against a background of other unfair labor practices, including the discharge of one of them several months later, and noting that the employer’s statement to the employees that it did not want a union was likely to convey the message that it viewed any campaigning by them with intense displeasure).
Applying and balancing those factors here, we agree with the judge that Clark’s questioning of McCarty was unlawful. Clark was a high-ranking official;6 he initiated
without saying that the week after the September 23 start date of the campaign was the week of October 1.
6 While our colleague notes that McCarty and Clark had “a good relationship,” the Board has found that a “supervisor’s statements may be coercive regardless of his friendship with an employee and regardless of whether the remark was well intended.” Management Consulting, Inc., 349 NLRB 249, 250 fn. 6 (2007) (citing Trover Clinic, 280 NLRB 6, 6 fn. 1 (1986), and finding that the “apparently friendly nature” of a supervisor’s admonition did not negate a finding of coercion); see Acme
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a conversation in which he questioned an active, but not yet open, union supporter; McCarty, who noticed an increase in management’s presence on the floor around the same time as this inquiry, did not answer Clark’s question;7 and the inquiry occurred at or near the same time as the Respondent’s unlawful discrimination against union supporter Patrick Greichen, including his disciplinary warning and discharge,8 and its unlawfully motivated pay increase to employees.9
Our dissenting colleague maintains that McCarty was an open union supporter who “made no effort...
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