READYJET, INC.,

Docket Number01-CA-132326

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.

Readyjet, Inc. and 32BJ SEIU New England 615.

Cases 01–CA–132326, 01–CA–140878, 01–CA– 155263, 01–CA–159503, and 01–CA–159509

August 16, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On October 12, 2016, Administrative Law Judge Kenneth W. Chu issued the attached decision. The General Counsel filed a brief in partial support of the decision and a motion to correct omissions from the Decision and Order, and the Respondent filed a response to the motion to correct omissions. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions.1

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 only to the extent consistent with this Decision and Order.3

We agree with the judge’s findings that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by discriminatorily issuing written warnings to employees Claudio Batista, Francisco Luna, Gerfi Mendez, Julio Medina, and Sergio Restituyo;4 discriminatori

1 The Respondent has requested oral argument. The request is denied as the record, exceptions, cross-exceptions, and briefs adequately present the issues and the positions of the parties.

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.

3 The General Counsel has cross-excepted to the judge’s failure to order that the Respondent cease and desist from telling employees that their discipline was for their participation in the strike and threatening further discipline for supporting the Union. The General Counsel also has excepted to the judge’s omission of order language requiring a public notice reading, which the judge found to be appropriate in his decision. We shall modify the judge’s recommended Order to conform to our findings and the Board’s standard remedial language, and to correct these inadvertent omissions. We shall also substitute a new notice to conform to the Order as modified.

4 In adopting the judge’s finding that the Respondent violated Sec. 8(a)(1) by issuing warnings to employees for engaging in a 1-day strike without complying with its “no call/no show” policy that requires advance notice of absences from work, we do not rely on his analysis

ly discharging Batista and Luna; telling Batista, Luna, Mendez, and Medina that their discipline was for their participation in the strike and threatening them with further discipline for their activity in support of the Union; and, through Supervisor Luis Oliva, unlawfully interrogating employees.5

The judge also found that the Respondent violated Section 8(a)(1), through Supervisor Rafael Felipe, by unlawfully interrogating employees Evelyn Gonzalez and Egla Cruz, threatening Gonzalez and Cruz with loss of employment, and creating the impression that employees’ union activities were under surveillance. It is undisputed that these allegations arose from incidents that occurred on January 7, 2014. The Respondent excepts to the judge’s findings, arguing that, because the relevant charge was filed more than 6 months later on July 8, 2014, these allegations are time barred under Section

under NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964). Under Burnup & Sims, an employer violates Sec. 8(a)(1) by disciplining an employee based on a good-faith but mistaken belief that the employee engaged in misconduct in the course of protected activity. However, the Burnup & Sims analysis “applies in cases involving mistakes of fact, not mistakes of law.” Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 6 fn. 20 (2014). Here, the Respondent admits that it disciplined the employees solely because they struck without providing advance notice, and argues that it lawfully did so. That presents an issue of law, about which the Respondent is incorrect, as employees lawfully may strike without prior notice, notwithstanding an employer’s policy that requires advance notice of employee absences. Iowa Packing Co., 338 NLRB 1140, 1144 (2003). Accordingly, because the Respondent concedes that it disciplined employees for conduct that was protected, its motive for the discipline is undisputed and no further analysis is required. CGLM, Inc., 350 NLRB 974, 974 fn. 2 (2007); HMY Roomstore, Inc., 344 NLRB 963, 966 (2005). As this is a single-motive case, we also reject the Respondent’s contention that the judge erroneously failed to apply the dual-motive analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).

5 The General Counsel has not excepted to the judge’s finding that the Respondent did not violate the Act, through Supervisor Geraldo Almonte, by interrogating an employee about his union activities.

Chairman Miscimarra disagrees with two of the remedies that his colleagues order: (1) ordering the Respondent to compensate Batista and Luna for any search-for-work and interim employment expenses regardless of whether those expenses exceed their interim earnings; and (2) ordering that the notice be read aloud to employees. First, for the reasons stated in his separate opinion in King Soopers, Inc., 364 NLRB No. 93, slip op. at 9–16 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), Chairman Miscimarra would adhere to the Board’s former approach of treating search-for-work and interim employment expenses as an offset against interim earnings. Second, notice reading is an extraordinary remedy reserved for “unfair labor practices [that] are sufficiently serious and widespread,” Homer D. Bronson Co., 349 NLRB 512, 515 (2007), enfd. mem. 273 Fed.Appx. 32 (2d Cir. 2008) (emphasis added), and Chairman Miscimarra would not find that the isolated early 2014 interrogation of two employees and the 2015 strikerelated discipline and threats to at most five employees constituted widespread violations in a bargaining unit of about 240 employees.

365 NLRB No. 120

2

10(b) of the Act. We agree.6 Accordingly, we dismiss these allegations.

AMENDED CONCLUSIONS OF LAW

  1. Delete paragraphs 7 and 8 of the judge’s Conclusions of Law and renumber the remaining conclusions accordingly.

    ORDER

    The National Labor Relations Board orders that the Respondent, ReadyJet, Inc., Boston, Massachusetts, its officers, agents, successors, and assigns, shall

  2. Cease and desist from

    (a) Discharging, disciplining, or otherwise discriminating against employees because of their support for 32BJ SEIU New England 615 or any other union.

    (b) Coercively interrogating employees about their union sympathies.

    (c) Threatening employees with discipline or discharge if they engage in protected concerted activities.

    (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.

  3. Take the following affirmative action necessary to effectuate the policies of the Act.

    (a) Within 14 days from the date of this Order, offer Claudio Batista and Francisco Luna 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 Batista and Luna 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 Batista and Luna for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 1, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years.

    (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges of Batista and Luna and within 3 days thereafter notify the employees in writing in English and Spanish that this has been done and that the discharges will not be used against them in any way.

    DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    6 Although the Respondent timely raised its 10(b) defense in its answer to the complaint, the judge failed to address this argument in his decision. The General Counsel did not respond to the Respondent’s 10(b) argument on exceptions.

    (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful disciplines of Batista, Luna, Gerfi Mendez, Julio Medina, and Sergio Restituyo and within 3 days thereafter notify the employees in writing in English and Spanish that this has been done and that the disciplines will not be used against them in any way.

    (f) 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...

To continue reading

FREE SIGN UP