Hendrickson Trucking Company, (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.
Hendrickson Trucking Company and Local 164, International Brotherhood of Teamsters (IBT). Cases 07–CA–086624 and 07–CA–095591
October 11, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
On May 16, 2014, Administrative Law Judge Donna Dawson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.
On April 12, 2016, following an unpublished remand order by the Board,1 the judge issued the attached Order Ratifying and Adopting Decision.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,2 and conclusions, to
amend the remedy,3 and to adopt the recommended order as modified and set forth in full below.4
1 The Board’s Order remanding this proceeding to the judge, available at https://www.nlrb.gov/case/07–CA–086624, rejected the Respondent’s argument that the Regional Director lacked authority to issue the complaint in this matter because she was appointed at a time when the Board lacked a quorum, as this argument is factually erroneous. Further, the Board found it unnecessary to reach the Respondent’s argument that the Acting General Counsel lacked authority to prosecute this case. See id. at 3 fn. 4. This argument is now moot as on April 15, 2016, General Counsel Richard F. Griffin, Jr. issued a Notice of Ratification stating the following: “After appropriate review and consultation with my staff, I have decided that the issuance of the complaint in this case and its continued prosecution are a proper exercise of the General Counsel’s broad and unreviewable discretion under Section 3(d) of the Act.”
2 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. In addition, some of the Respondent’s exceptions allege that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit.
The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties.
We note that Monmouth Care Center, 354 NLRB 11 (2009), a twomember decision cited by the judge, was incorporated by reference in a three-member panel decision following issuance of the Supreme
Court’s decision in New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010) (holding that under Sec. 3(b) of the Act, a delegee group of at least three members must be maintained in order to exercise the delegated authority of the Board). See Monmouth Care Center, 356 NLRB 152 (2010), enfd. 672 F.3d 1085 (D.C. Cir. 2012).
Contrary to the judge and his colleagues, Chairman Miscimarra would not find that the Respondent violated Sec. 8(a)(5) by failing to provide relevant information requested by the Union on July 31 and November 30, 2012. In his view, the summary the Respondent provided to the Union on January 9, 2013, was a sufficient response to those requests. Chairman Miscimarra would find, however, that the Respondent violated Sec. 8(a)(5) and (1) by unreasonably delaying its response to those requests.
3 The remedy section of the judge’s decision is amended as follows. Backpay for the unfair labor practice strikers denied immediate reinstatement on November 30, 2012, shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950)—not, as the judge ordered, in accordance with Ogle Protection Service, Inc., 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). Loss of earnings and other benefits resulting from the Respondent’s unlawful unilateral changes shall be computed in accordance with Ogle Protection Service, supra, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). So shall reimbursements for any expenses resulting from the Respondent’s failure to make required contributions to the Michigan Conference of Teamsters Welfare Fund, including reimbursement of amounts that employees were required to contribute for coverage under the Fund following the Respondent’s unlawful implementation of its final offer on about June 23, 2012. Benefit fund contributions shall be made in the manner set forth in the remedy section of the judge’s decision. Because the Board’s powers under Sec. 10(c) are strictly remedial, Chairman Miscimarra would deduct from any make-whole award to the Union’s Welfare Fund the amount that the Fund would have paid out for covered claims but did not pay out as a result of the Respondent’s unlawful implementation of its final offer in the absence of a valid impasse. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941) (holding that the purpose of the Board’s remedies is the “restoration of the situation, as nearly as possible, to that which would have obtained but for” the unfair labor practices).
4 Although the Respondent excepted to the judge’s finding that it unlawfully refused to bargain with the Union on request, it does not argue that the judge’s recommended affirmative bargaining order is improper even assuming the Board affirms the judge’s finding. We therefore find it unnecessary to provide a specific justification for the affirmative bargaining order. See Lily Transportation Corp., 363 NLRB No. 15, slip op. at 3 fn. 5 (2015), enfd. 853 F.3d 31 (1st Cir. 2017); Heritage Container, Inc., 334 NLRB 455, 455 fn. 4 (2001); see also Scepter Inc. v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002).
In accordance with our recent decision in King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), we shall order the Respondent to compensate affected employees for their search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings. Search-forwork and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. For the reasons stated in his separate opinion in King Soopers, supra, slip op. at 12–16, Chairman Miscimarra would adhere to the Board’s former approach, treating search-for-work and interim employment expenses as an offset against interim earnings. We
365 NLRB No. 139
In adopting the judge’s findings, we clarify the following point. During the course of bargaining, the Union requested detailed cost-savings calculations from the Respondent after the Respondent repeatedly stated it was losing money. The Respondent failed to respond to these requests or produce that information during bargaining. While the judge appropriately relied on the Respondent’s failure to respond to the Union’s requests as evidence that the Respondent did not bargain in good faith to a valid impasse,5 and we rely on it as such, the judge mistakenly concluded that this failure constituted a separate violation of Section 8(a)(5) of the Act. The complaint did not so allege. For the same reason, we also disavow the judge’s statements in both her 2014 decision and her 2016 order that the Respondent bargained in bad faith. The complaint did not allege bad-faith bargaining, and the parties did not litigate that issue. 6
shall also modify the judge’s recommended Order to conform to the Board’s standard remedial language and in accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), and we shall substitute a new notice to conform to the Order as modified.
5 Chairman Miscimarra agrees that the parties had not reached a valid bargaining impasse at the time the Respondent implemented its final offer, and therefore the Respondent violated Sec. 8(a)(5) when it implemented the terms of that offer. In so finding, however, he does not rely on several aspects of the judge’s analysis. First, Chairman Miscimarra does not rely, as evidence that bargaining had not reached a valid impasse, on the fact that the Respondent did not furnish the Union its 2011 tax return. The judge found that the Respondent had a duty to furnish the 2011 return “once it received” the return on the basis that the Respondent had permitted the Union’s accountant to review its tax returns for 2008, 2009, and 2010. Chairman Miscimarra disagrees that by furnishing its tax returns for those 3 years, the Respondent incurred an ongoing duty to provide additional tax returns. He finds there was no such duty. Second, because Sec. 8(d) precludes the Board from dictating any term of a collective-bargaining agreement, Chairman Miscimarra disagrees with the judge’s finding that the Respondent’s proposal of a judicial rather than an arbitral forum to resolve grievances at step 4 of the grievance process “constituted a lack of good-faith bargaining.” See H. K. Porter Co. v. NLRB, 397 U.S. 99, 107–108...
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