Dawn Trucking Inc.,

Docket Number:29-CA-171337
 
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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.

Dawn Trucking Inc. and Mickoy Holness. Cases 29–

CA–171337 and 29–CA–174915

August 17, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On February 8, 2017, Administrative Law Judge Benjamin W. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the 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

ORDER

The National Labor Relations Board orders that the Respondent, Dawn Trucking Inc., Rosedale, New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against employees for supporting the Building Material Teamsters Local 282, International Brotherhood of Teamsters or any other labor organization.

(b) Conditioning offers of reinstatement to employees upon rejection of the Building Material Teamsters Local 282, International Brotherhood of Teamsters as their bargaining representative.

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.

2 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language and in accordance with our decision in Excel Container, Inc., 325 NLRB 17 (1997). In addition, we shall modify the judge’s recommended broad order requiring the Respondent to cease and desist from violating the Act “in any other manner.” We find that a broad order is not warranted under the circumstances of this case, and shall substitute a narrow order requiring the Respondent to cease and desist from violating the Act “in any like or related manner.” See Hickmott Foods, 242 NLRB 1357 (1979). Finally, we shall substitute a new notice to conform to the Order as modified.

(c) Bypassing the certified bargaining representative, Building Material Teamsters Local 282, International Brotherhood of Teamsters, and dealing directly with bargaining unit employees with regard to the terms and conditions of their employment.

(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 effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario, and Kevin Wittier 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.

(b) Make Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario, and Kevin Wittier 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 the judge’s decision.

(c) Compensate Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario, and Kevin Wittier for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 29, 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.

(d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges, and within 3 days thereafter, notify the employees in writing that this has been done and that the discharges 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 designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, 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) Within 14 days after service by the Region, post at its Rosedale, New York facility copies of the attached notice marked “Appendix.”3 Copies of the notice, on

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 National Labor Relations Board” shall read “Posted Pursuant to a Judg-

365 NLRB No. 121

2

forms provided by the Regional Director for Region 29, 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. 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. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

(g) Within 14 days after service by the Region, duplicate and mail, at its own expense, after being signed by Respondent’s authorized representative, copies of the attached notice to the last known addresses of all current employees and former unit employees employed by the Respondent at any time since November 6, 2015.

(h) Within 21 days after service by the Region, file with the Regional Director for Region 29 a sworn certification 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. August 17, 2017

______________________________________

Philip A. Miscimarra, Chairman

______________________________________

Mark Gaston Pearce, Member

______________________________________

Lauren McFerran, 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

ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

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 behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

WE WILL NOT discharge or otherwise discriminate against any of you for supporting the Building Material Teamsters Local 282, International Brotherhood of Teamsters or any other labor organization.

WE WILL NOT condition offers of reinstatement to you upon your rejection of the Building Material Teamsters Local 282, International Brotherhood of Teamsters as your bargaining representative.

WE WILL NOT bypass the certified bargaining representative, Building Material Teamsters Local 282, International Brotherhood of Teamsters, and deal directly with you regarding your terms and conditions of employment.

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, within 14 days from the date of the Board’s Order, offer Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario, and Kevin Wittier full reinstatement to their former jobs or, if those jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

WE WILL make Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario, and Kevin Wittier whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest, and WE WILL also make such employees whole for reasonable search-for-work and interim employment expenses, plus interest.

WE WILL compensate Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario, and Kevin Wittier for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 29, 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.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

DAWN TRUCKING, INC. 3

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharges of Mickoy Holness, Clayton Thomas, Damion Coore, Jose Perez, Juan Rosario, and Kevin Wittier, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the discharges will not be used against them in any way.

DAWN TRUCKING INC.

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