Novelis Corporation, (2016)

Date26 August 2016
Novelis Corporation and United Steel, Paper and
Forestry, Rubber Manufacturing, Energy, Al-
lied Industrial and Service Workers, Interna-
tional Union, AFLCIO.
Novelis Corporation, and United Steel, Paper and
Forestry, Rubber Man ufacturing, Energy, Al-
lied Industrial and Service Workers, Interna-
tional Union, AFLCIO. Cases 03CA121293,
03CA121579, 03CA122766, 03CA123346,
03CA123526, 03CA127024, 03CA126738,
and 03RC120447
August 26, 2016
On January 30, 2015, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed ex ceptions and a supporting brief, and the
Intervenors filed exceptions and a memorandum of law
in support.1 The General Counsel filed separate answer-
ing briefs in response to the Respondents and the Inter-
venors exceptions, and the Charging Party filed single
answering brief to both sets of exceptions. Thereafter,
the Respondent filed separate reply br iefs to the answer-
ing briefs. The Respondent also filed motions to r eopen
the record, the General Counsel filed oppositions to each
of the Respondents motions, and the Respondent filed
reply briefs to the General Counsels opposition briefs.
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 exceptions2 and brief s and has decided to
affirm the judges ru lings,3 findings,4 and conclusions, as
1 During the hearing, the judge granted four bargaining unit employ-
ees limited Intervenor status to oppose the General Counsel s request
for a bargaining order.
2 The General Counsel requests that we disregard the Respondent s
exceptions because the Respondents supporting brief did not comply
with Sec. 102.46(c) of the Boards Rules and Regulations. The General
Counsels request is denied inasmuch as the exceptions and supporting
brief substantially comply with the Rules requirements. See La Gloria
Oil & Gas Co., 337 NLRB 1120, 1120 fn. 1 (2002).
The General Counsel argues in h is answering brief to the Interve-
nors exceptions and supporting memorandum that those exceptions
and arguments should be struck to the extent they exceed the limited
grant of participation by addressing the merits of the 8(a)(1) and (3)
allegations. We deny the General Counsels request because the Inter-
venors exceptions and corresponding arguments do not change the
result here.
3 The Respondent excepts to many of the judges evidentiary and
procedural rulings. Sec. 102.35 of the Boards Rules and Regulations
provides, in pertinent part, that a judge should regulate the course of
modified here, and to adopt the recommended Order as
modified and set forth in full below.5
The complain t alleges that the Respondent committed
numerous and widesp read unfair labor practices during
the Unions 20132014 campaign to organize the Re-
spondents employees at its aluminum products manufac-
turing plant in Oswego, New York. The campaign began
after the Respondent announced on December 16, 2013,
that it would implement changes that would effectively
reduce employees compensation. Specifically, the Re-
spondent stated that, beginning January 1, 2014,6 em-
ployees would no longer r eceive Sunday premium pay,
and that holidays and vacation days would no longer be
used in calculating overtime eligibility (hereinafter re-
ferred to as unscheduled overtime pay). In response,
employee Everett Abare discussed the Respondents an-
nounced changes with coworkers and then met with
James Ridgeway, the Union locals president, to discuss
seeking union representation.
Between December 17, 2013, and January 5, Abare
and the rest of an organizing committee of about 25 em-
ployees obtained 351 signed union authorization cards
from the almost 600 coworkers who would comprise the
prospective unit. On January 9, upon reaching a card
majority showing of support, the Union submitted a de-
the hearing and take any other action necessary in furtherance of the
judges stated duties and as authorized by the Boards Rules. Thus, the
Board accords judges significant discretion in controlling the hearing
and d irecting the creation of the record. See Parts Depot, Inc., 348
NLRB 152, 152 fn. 6 (2006), enfd. mem. 260 Fed. Appx. 607 (4th Cir.
2008). Further, it is well established that the Board will affirm an evi-
dentiary ruling of a judge unless that ruling constitutes an abuse of
discretion. See Aladdin Gaming, LLC, 345 NLRB 585, 587 (2005),
petition for review denied sub nom. Local Joint Executive Board of Las
Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). After a careful review of
the record, we find no abuse of discretion in any of the challenged
4 The Respondent has excepted to some of the judges credibility
findings. The Boards established policy is not to overrule an adminis-
trative law judges credibility resolutions unless the clear preponder-
ance 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 Respondents exceptions allege that the
judges rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judges decision and the entire
record, we are satisfied that the Respondents contentions are without
5 We shall amend the judges Conclusions of Law and modify his
recommended Order to conform to the violations found and to the
Boards standard remedial language. We shall substitute a new notice
to conform to the Order as modified.
6 All dates are in 2014, unless otherwise noted.
mand for voluntary recognition to the Respondent. The
Respondent declined recognition, and the Union imme-
diately filed a petition for a Board representation elec-
tion. On the same date, the Respondent announced that it
was restoring Sunday premium pay and un scheduled
overtime pay. The election was held on February 20 and
21, resulting in a tally of 273 votes for the Union, and
287 against it, with 10 challenged ballots The Union
filed objections to th e election that have been consolidat-
ed for consideration with the unfair labor practice allega-
tions in this proceeding.
On March 29, Abare posted a comment on Facebook
that was critical of b oth his pay and of those employees
who voted against the Union. On April 4, the Respond-
ent demoted Abare on the g rounds that his posting vio-
lated its social media policy.
The judge found that the Respondent engaged in nu-
merous and pervasive v iolations of Section 8(a)(1) of the
Act during the preelectio n period. Specifically, he found
that the Respondent restored Sunday premium pay and
unscheduled overtime pay to discourage employees from
supporting the Union,7 threatened employees with plant
closure if they voted for union representation,8 th reatened
that it would lose business if they selected the Union as
their bargaining representative, threatened employees
with job loss, a reduction in wages, and more on erous
working conditions, disparaged the Union, 9 maintained
an overly broad work rule that interfered with employ-
7 We adopt the judges findings that the Respondent violated Sec.
8(a)(1) by restoring Sunday premium pay and unscheduled overtime
pay to discourage employees from supporting the Union. However, we
do not rely on his finding that the solicitation of crew leaders to sign
authorization cards provided circumstantial evidence of the Respond-
ents prior knowledge of the union campaign, nor do we rely on any
suggestion that the Unions January 9 demand letter provided such
evidence of employer knowledge.
8 We find that the statements at issue are more accurately described
as threats of job loss, and we will modify the Order and notice language
for this violation accordingly.
9 The judge found that the Respondent unlawfully disparaged the
Union by posting a redacted letter from the Boards Regional Office to
the Respondent and, using this redaction, falsely representing to the
employees that the Union had filed charges seeking the rescission of
their Sunday premium pay and unscheduled overtime, and that the
Respondent would have to rescind these benefits retroactive to January
1 as a result. We agree with the judge that the Respondents conduct
violated the Act, because its statements and misuse of the Regions
letter were clearly calculated to mislead employees as to the Unions
conduct with regard to restoration of the benefits. Under these circum-
stances, the Respondents conduct violated Sec. 8(a)(1) as it constitutes
interference, restraint, and coercion that unlawfully tended to under-
mine the Union. See Faro Screen Process, Inc., 362 NLRB 718, 718
719 (2015), and cases cited therein.
ees use of the Respondents email system fo r Section 7
purposes, selectively and disparately enforced the Re-
spondents posting and distribution rules,10 prohibited
employees from wearing union insignia on their uni-
forms while permitting employees to wear antiunion and
other insignia, interrogated employees about union activ-
ities,11 solicited employees complaints and grievances
and promised employees improved terms and conditions
of employment if they did n ot select the Union, and
maintained and gave effect to an overly broad unlawful
social media policy. He also found that the Respondent
violated Section 8(a)(3) by its postelection demo tion of
10 The judge found that, on four occasions i n January, the Respond-
ents supervisors unlawfully removed union literature from break areas
and either replaced it with company literature o f a similar nature or
permitted company literature to remain in those break areas. He rea-
soned that the supervisors conduct was unlawfully discriminatory.
Although we agree with the judge that the Respondent violated Sec.
8(a)(1) on all four occasions, we affirm these violations because each of
these supervisors removed union literature from a mixed-use area. See
Superior Emerald Park Landfill, LLC, 340 NLRB 449, 456-457 (2003)
(confiscation of union literature from mixed use employee break area
found unlawful). Chairman Pearce agrees with the judges rationale for
all of these findings.
11 We adopt the judges findings that the Respondents supervisor
Bro violated Sec. 8(a)(1) by interrogating employees on January 23 and
30. We find it unnecessary to pass on whether Supervisor Formoza
unlawfully interrogated employees on January 28, a s any such finding
would be cumulative and would not affect the remedy. For the same
reason, Chairman Pearce finds it unnecessary to pass on whether Bro
unlawfully interrogated employees on January 23.
We also find that, as alleged in the complaint, Bro violated Sec.
8(a)(1) by threatening employees on January 23 that they did not have
to work for the Respondent if they were unhappy with their terms and
conditions of employment. Although the judge did not make a specific
finding on this complaint allegation, he addressed the issue in his anal-
ysis and included the violation in his conclusions of law.
Finally, we agree with the judge that on January 28 Supervisor
Formoza violated Sec. 8(a)(1) by impliedly threatening an employee
with layoff if employees selected the Union as their bargaining repre-
sentative. We shall modify the Conclusions of Law, Order, and notice
to include this violation.
12 We affirm the judges finding that the Respondent violated Sec.
8(a)(1) and (3) by demoting Abare because of his protected concerted
and union activities. However, we do not rely on the judges analysis
under Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir.1981), cert. denied 455 U.S. 989 (1982), approved i n
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The
Wright Line analysis is appropriately used in cases that turn on the
employers motive. Phoenix Transit System, 337 NLRB 510, 510
(2002), enfd. 63 Fed. Appx. 524 (D.C. Cir. 2003). But where the con-
duct for which the employee is disciplined is protected activity, the
Wright Line analysis is n ot appropriate. Id.; see also St. Josephs Hos-
pital, 337 NLRB 94, 95 (2001). Here, it is undisputed that the Re-
spondent demoted Abare because of his social media posting. The
judge found, and we agree, that Abares Facebook posting constituted
protected, concerted activity and union activity. Further, we agree with
the judge that, under Triple Play Sports Bar & Grille, 361 NLRB 308,
Based o n these unfair labor practices and the parallel
election objections, the judge concluded that the results
of the election must be set aside. The judge further con-
cluded that the Boards traditional remedies could not
alone erase the coercive effects of the Respondents un-
lawful conduct, and that a Gissel13 remedial bargaining
order was therefore necessary. The Respondent and the
Intervenors except to the issuance of a bargain ing order.
In addition to disputing the judges unfair labor practice
findings, they contend that whatever violations occurred
can adequately be remed ied through traditional means.
They also dispute the judges finding that the Union h ad
majority support on January 9 and assert that the General
Counsel failed to show that any unfair labor practices
actually caused a decline in employee support for the
Union. Finally, the Respondent conten ds that employee
and m anagement turnover and the passage of time have
substantially dissipated the adverse effects of any unlaw-
ful conduct.
For reasons previously stated here and in the judges
decision, we affirm his numerous unfair labor practice
findings. As discussed below, we find no merit in the
Respondents and the Intervenors arguments that a Gis-
sel b argaining order is not necessary to remedy the lin-
gering effects of that unlawful conduct.
As a preliminary matter, we briefly address the argu-
ment that the judge erred in finding that the General
Counsel properly authenticated, and entered into the rec-
ord, signed authorization cards from 351 of 599 un it em-
ployees. The Respondent contends that many cards wer e
improperly procured on the basis of misrepresentations.
It argues that dozens of employees testified that they
were told that signing an authorization card would entitle
the signer to receive information about the Union, would
be used only to get an election, or would not count as a
311313 (2014), affd. 629 Fed. Appx. 33 (2d Cir. 2015), Abare s Face-
book posting did not lose its protected status under the Act. See also
Desert Springs Hospital Medical Center, 363 NLRB 1824, 1824 fn. 4
(2016) (clarifying that Triple Play and not Wright Line is applicable
where discipline is for protected concerted activity). However, in find-
ing that Abares conduct did not forfeit the Acts protection, we do not
rely on the judges invocation of NLRB v. Electrical Workers IBEW
Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), and Linn v.
United Plant Guard Workers Local 114, 383 U.S. 53 (1966), because
this case does not present any issues regarding disparagement or dis-
loyalty. We note that the Respondent specifically stated that it was not
relying on Jefferson Standard and Linn; rather, it contended that
Abares conduct lost any protection under the Act because it was dis-
criminatory and threatening to co-employees. We do not agree with
these characterizations.
13 See NLRB v. Gissel Packing Co., 395 U.S. 575, 610 (1969).
vote for the Union. We find no merit in the Respond-
ents contention.
It is well -settled Board law that a card that un ambigu-
ously states on its face that it is for the pu rpose of author-
izing the union to represent employees in collective bar-
gaining is presumed valid.14 Here, the language on the
Unions card explicitly and unambiguously indicated that
its purpose was to authorize representation in collec-
tive bargaining and to be used to secure union recogni-
tion and collective bargaining rights.
In order to invalidate an unambiguous card, it must be
clear that the signers were told to disregard completely
the clear language on the card, which, as found by the
judge, did not occur in this case. Although a few solici-
tors indicated that the card wou ld be used to get more
information or get an election, they did not direct the
signer to disregard the lan guage on the card. To the con-
trary, the evidence shows that card solicitors consistently
directed employees to read the cards. They asked em-
ployees to provide the detailed information requested by
the card and to sign it, and told employees that they
could have their card returned if they changed their
Further, we find that the Respondents assertion that
the judge erred in finding unwitnessed cards authenticat-
ed is unavailing. It is well settled that the Board “will …
accept as authentic any authorization cards which were
returned by the signatory to the person soliciting them
even though the solicitor did not witness the actual act of
signing. McEwen Mfg. Co., 172 NLRB 990, 992
(1968). In addition, we find without merit the Respond-
ents contention that several of the union authorization
cards were not authenticated at trial because the signa-
tures were verified by the judge rather than the actual
signer. As the judge found, the Board has long held,
consistent with Section 901(b)(3) of the Federal Rules of
Evidence, that a judge or a handwriting expert may de-
termine the genuineness of signatu res on authorization
cards by comparing them to W-4 forms in the emp loyers
records. See Traction Wholesale Center Co., 328 NLRB
1058, 1 059 (19 99), enfd. 2 16 F.3d 92 (D.C. Cir. 2000);
Justak Bros. and Co., 253 NLRB 1054, 1079 (1981),
enfd. 664 F.2d 1074 (7th Cir. 1981). Here the judge
14 See Cumberland Shoe Corp., 144 NLRB. 1268 (1963), and Gissel,
supra, 395 U.S. at 606 (In resolving the conflict among the circuits in
favor of approving the Boards Cumberland rule, we think it sufficient
to point out that employees should be bound by the clear language of
what they sign unless that language is deliberately and clearly canceled
by a union adherent with words calculated to direct the signer to disre-
gard and forget the language above his signature.)

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