Neises Construction Corp., (2017)

Docket Number:13-CA-135991

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.

Neises Construction Corp. and Indiana/Kentucky/Ohio Regional Council of Carpenters. Cases 13–CA–135991, 13–CA–139977, and 13–RC–135485

September 11, 2017



On April 10, 2015, Administrative Law Judge Arthur

J. Amchan issued the attached decision in this consolidated unfair labor practice and representation case. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party each filed an answering brief, and the Respondent filed reply briefs responding to each answering brief. In addition, the General Counsel filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply 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 only to the extent consistent with this Decision, Order, and Direction, and to adopt the recommended Order as modified and set forth in full below.2

The Respondent does residential concrete work in the Crown Point, Indiana area. In late June or early July

1 The Respondent has implicitly 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.

The record shows that Union Representative James Slagle visited the Respondent’s jobsite in July 2014, not July 2013 as the judge stated in his decision. This error does not affect our disposition of the case.

2 We have amended the judge’s conclusions of law and remedy consistent with our findings herein. We shall modify the judge’s recommended Order to conform to our findings and to the Board’s standard remedial language. We shall also substitute a new notice to conform to the Order as modified.

The General Counsel filed a motion to strike the Respondent’s exceptions or, alternatively, for an extension of time to file a response to the Respondent’s exceptions and cross-exceptions and a supporting brief. The Board’s Associate Executive Secretary granted the requested extension of time, and the General Counsel subsequently filed an answering brief, cross-exceptions and a supporting brief, and a reply brief. Accordingly, we find that the motion to strike is moot.

2014,3 the Union began organizing the Respondent’s wall and footer carpenters. On August 25 or 26, the Union informed Brian Neises, the Respondent’s coowner, that it had obtained signed union authorization cards from a majority of the wall and footer carpenters, and it requested voluntary recognition. Neises declined, and the Union filed a representation petition on August 26. An election was held on October 3, and the tally of ballots showed 5 votes for and 3 against the Union, with 11 challenged ballots. The Union filed objections to the election, which were consolidated for consideration with the unfair labor practice allegations in this proceeding.

The judge found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by posting a notice at its facility requiring employees to obtain a commercial driver’s license (CDL), thereby implicitly threatening to enforce a policy which had never been previously enforced,4 and by issuing reprimands to wall and footer employees Robert Carpenter and Mike Keilman.5 We also agree with the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by terminating lead organizer Dominic Valenta.6 Contrary to the judge, how

3 All dates are in 2014 unless otherwise stated.

4 We agree with the judge that the Respondent violated Sec. 8(a)(1) by posting a notice of a CDL requirement that had never previously been enforced. The timing of the posting, shortly after the representation petition was filed, conveyed to employees a message that the Respondent intended to enforce the CDL requirement because of their union activities. See, e.g., Robert Orr/Sysco Food Services, LLC, 343 NLRB 1183, 1193 (2004); Hall of Mississippi, Inc., 249 NLRB 775, 776–777 (1980). Thus, contrary to the Respondent’s contention, it is irrelevant whether any employees were actually disciplined pursuant to the CDL policy after the new notice was posted.

5 The complaint alleged that the reprimands violated Sec. 8(a)(3) and (1) of the Act. In his Conclusion of Law 2, the judge stated that the reprimands violated Sec. 8(a)(3) and (1), but in his decision, the judge found an 8(a)(1) violation only and did not address the 8(a)(3) allegation. In light of our finding below that the Respondent’s stricter enforcement of its attendance policy violated Sec. 8(a)(3), we find that the reprimands, which were issued pursuant to this stricter enforcement, violated Sec. 8(a)(3) as well. See, e.g., Dynamics Corp. of America, 286 NLRB 920, 921 (1987), enfd. 928 F.2d 609 (2d Cir. 1991).

In any event, the Respondent filed a bare exception to the judge’s conclusion that the reprimands violated Sec. 8(a)(3) and (1) and were objectionable. The Respondent presented no argument in support of this exception. Accordingly, pursuant to Sec. 102.46(b)(2) of the Board’s Rules and Regulations, this exception may be disregarded, and we find it appropriate to do so here. See, e.g., Encino Hospital Medical Center, 364 NLRB No. 128, slip op. at 1 fn. 1 (2016); New Concept Solutions, LLC, 349 NLRB 1136, 1136 fn. 2 (2007).

6 In affirming the judge’s conclusion that Valenta’s termination violated Sec. 8(a)(3) and (1) under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), we do not rely on his citation to American Gardens Management Co., 338 NLRB 644 (2002), which characterizes Wright Line as requiring the General Counsel to establish a nexus between the employee’s protected activity and the adverse employment action. See, e.g., Mesker Door, Inc., 357 NLRB 591, 592 & fn. 5 (2011) (General Counsel estab-

365 NLRB No. 129


ever, and as explained below, we find that the Respondent also violated the Act by more strictly enforcing its attendance policy and by threatening an employee with job loss and closure of the Company if employees chose to be represented by the Union. Finally, as discussed below, we shall direct the Regional Director for Region 13 to open and count four challenged ballots, to certify the Union as the employees’ representative if the revised tally of ballots shows that the Union received a majority of the votes, and, if not, to conduct a rerun election.

1. As stated above, the judge found, and we agree, that the Respondent violated the Act by terminating Valenta and reprimanding Carpenter and Keilman. However, the judge dismissed the related allegation that, as evidenced by Valenta’s termination and Carpenter’s and Keilman’s reprimands, the Respondent enforced its attendance poli

lishes antiunion motivation of employer’s conduct by showing “union activity by the employee, employer knowledge of that activity, and antiunion animus by the employer”; the General Counsel’s initial burden does not include a fourth “nexus” element).

Nonetheless, the judge correctly found that Valenta’s union activity, which included talking to union representatives, distributing authorization cards, and encouraging coworkers to support the Union, was a motivating factor in the Respondent’s decision to discharge him. The timing of Valenta’s August 29 discharge—just 3 days after the Union filed the representation petition—and the Respondent’s contemporaneous unfair labor practices show discriminatory antiunion animus. See Lucky Cab Co., 360 NLRB 271, 274 (2014). Knowledge can be inferred from the Respondent’s general knowledge of employees’ union activities (which is established by the Union’s disclosure to the Respondent on August 25 or 26 that a majority of the Respondent’s employees had signed union authorization cards and by the filing of the representation petition on August 26), the timing of Valenta’s discharge, and the Respondent’s antiunion animus. See Coastal Sunbelt Produce, 362 NLRB No. 126, slip op. at 2 (2015). We also adopt the judge’s finding that the reasons given for Valenta’s discharge were pretextual, which further supports our finding that Valenta’s discharge was unlawfully motivated and defeats any attempt by the Respondent to show that it would have discharged Valenta even in the absence of his union activities. See id. Finally, we find that Valenta’s discharge violated Sec. 8(a)(3) on the additional basis that it resulted from the Respondent’s stricter enforcement of its attendance policy, which was unlawful for the reasons explained below. See Hyatt Regency Memphis, 296 NLRB 259, 263 (1989), enfd. 944 F.2d 904 (6th Cir. 1991).

Chairman Miscimarra disagrees with his colleagues’ understanding of the General Counsel’s burden under Wright Line. In Chairman Miscimarra’s view, the General Counsel must make a particularized showing that links an employee’s protected activity to the adverse employment action. See Wright Line, above at 1089 (the General Counsel must make “a prima facie showing sufficient to support the inference that protected conduct was a ‘motivating factor’ in the employer’s decision”). In other words, the General Counsel must...

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