RHCG Safety Corp., (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.

RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA. Cases 29–

CA–161261 and 29–RC–157827

June 7, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On May 18, 2016, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and Charging Party Union filed answering briefs, and the Respondent filed reply briefs.

The National Labor Relations 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

In this consolidated unfair labor practice and representation case the judge found that the Respondent violated the Act by unlawfully interrogating and discharging employee Claudio Anderson, and interfered with the representation election by providing a voter list that failed to substantially comply with the Board’s voter-list requirements. We agree with these findings, as further discussed below.³

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 in accordance with our decisions in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), J. Picini Flooring, 356 NLRB 11 (2010), and the Board’s standard remedial language. In accordance with our decision in King Soopers, Inc., 364 NLRB No. 93 (2016), we shall also order the Respondent to compensate employee Claudio Anderson for his search-forwork and interim employment expenses regardless of whether those expenses exceed interim earnings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, 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). We shall substitute a new notice to conform to the Order as modified.

³ There are no exceptions to the judge’s dismissal of the allegations that the Respondent violated Sec. 8(a)(1) by threatening employees with job loss and reduced wages if they selected the Union as their bargaining representative or to the judge’s conclusion that he need not consider the Union’s other election objections in light of his sustaining the voter list objection.

1. The interrogation

   Under the totality of the circumstances test, we agree with the judge that Supervisor David Scherrer unlawfully interrogated Anderson when texting him on July 30, 2015, “U working for Redhook or u working in the union?” See, e.g., Rossmore House, 269 NLRB 1176, 1177–1178 & fn. 20 (1984), affd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985); NLRB v. McCullough Environmental Services, 5 F.3d 923, 928 (5th Cir. 1993). Anderson testified that he never told Scherrer or any other supervisor that he had signed a union card, visited the union office, or supported the Union, and the Respondent concedes that Anderson was not an open union supporter at the time of the interrogation. See Davies Medical Center, 303 NLRB 195, 205 (1991) (employee questioned not an open supporter), enfd. 991 F.2d 803 (9th Cir. 1993) (unpublished). Further, Scherrer sent the text in direct response to Anderson’s inquiry about whether he could return to work. By juxtaposing working for Redhook with working in the Union, Scherrer’s text strongly suggested that the two were incompatible.⁴ Cf. Facchina Construction Co., 343 NLRB 886, 886 (2004) (questioning an applicant about his union sentiments or activity tends to be coercive because it suggests that employment is conditioned on the answer), enfd. 180 Fed.Appx. 178 (D.C. Cir. 2006) (unpublished); Boydston Electric, Inc., 331 NLRB 1450, 1450 fn. 5 (2000) NLRB v. Shelby Memorial Hospital Assn., 1 F.3d 550, 559–560 (7th Cir. 1993) (given employee’s recent return from layoff, it is doubtful that employee believed that he could take supervisor at his word when supervisor prefaced questioning the employee about union activity and his possible involvement in it, by stating that the employee could tell him that it was none of his business). Next, while Supervisor Scherrer was not one of the Respondent’s highest ranking officials, he did have the power to put Anderson to work on his jobsites. Further, contrary to the Respondent’s claims that Scherrer was merely inquiring whether Anderson was available for work, that was not what Scherrer asked.⁵ Scherrer also did not have or

   ⁴ We reject the Respondent’s contention that a text message cannot be found to constitute an unlawful interrogation. The Board has found, with court approval, that an unlawful interrogation need not be face-toface. See, e.g., McGlaughlin v. NLRB, 652 F.2d 673, 674 (6th Cir. 1981) (coercive interrogation occurred via a phone call); NLRB v. Bighorn Beverage, 614 F.2d 1238, 1240–1242 (9th Cir 1980) (coercive interrogation occurred via a written job application form). The Respondent offers no reason why the Board should provide a safe harbor for coercive employer interrogations via text messages.

   ⁵ In rejecting the Respondent’s claim that Scherrer merely wanted to make sure that Anderson was available for work, we further note that the Respondent does not claim that it had a rule prohibiting outside

   communicate to Anderson any legitimate purpose for asking if he was working in the Union. See, e.g., Windemuller Electric, Inc., 306 NLRB 664, 673 (1992) (no legitimate reason for question and none conveyed to employee), enfd. 34 F.3d 384 (6th Cir. 1994). Nor did Scherrer provide Anderson with any assurances against reprisals. NLRB v. Brookwood Furniture, 701 F.2d 452, 462 (5th Cir. 1983) (no evidence that employer had a valid purpose for question and none conveyed, and no assurances against reprisals).

   We reject the Respondent’s contention that the judge should not have received into evidence the screenshot of the text constituting the interrogation (and certain other texts that Anderson and Supervisor Scherrer exchanged), because the General Counsel did not move into evidence screenshots of 10 additional text messages that Anderson and Scherrer exchanged between July 29 and August 4. The Respondent points to nothing in the Federal Rules of Evidence that required the judge to reject the screenshots of the text messages that Anderson did take simply because the General Counsel did not move into evidence screenshots of all the text messages that Anderson and Supervisor Scherrer exchanged. Nor, contrary to the Respondent, do the “missing” text messages make it impossible for the Board to determine the legality of the interrogation.

   Rule 106 of the Federal Rules of Evidence provides, “If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.” The Rule “is concerned with misleading impressions created by taking statements in documents or recordings out of context.” 1 Weinstein’s Federal Evidence § 106.02[1] ( 2d ed. 2013). However, the admitted screenshot of the text constituting the unlawful interrogation is not incomplete. Accordingly, there is no “part” of the “statement” that the General Counsel failed to move into evidence.

   Although the Rule also provides for the admission of related writings that in fairness ought to be considered, the General Counsel could not have moved screenshots of those other messages into evidence. None of the other messages that Scherrer and Anderson exchanged were on the phones that Anderson and Scherrer had at time of the unfair labor practice hearing; neither individual had screenshots of those messages; and the cell phone pro

   employment, and Anderson specifically asked to return to work before Scherrer’s text interrogation. Further, Scherrer’s purported concern about Anderson’s availability is at odds with the Respondent’s claim elsewhere in its exceptions brief that Scherrer had no work for Anderson at that time.

   viders did not have copies of the actual content of those texts. See United States v. Thompson, 501 Fed.Appx. 347, 364 (6th Cir. 2012) (unpublished) (rejecting defendant’s rule of completeness argument “because the government admitted 100% of what they were in possession of”).

   Moreover, Anderson’s failure to take screenshots of all of the text messages he exchanged with Scherrer did not prevent the Respondent from questioning Scherrer about his communications with Anderson during the relevant time period, and about the circumstances surrounding those communications, when Scherrer testified at the unfair labor practice hearing. See United States v. Harry, 927 F.Supp. 2d 1185, 1192, 1227 (D.N.M. 2013) (although Rule 106 might have allowed defendant to introduce other individual’s text messages to him had they not been lost, he is not without a remedy because he can testify about the missing texts), affd. 816 F.3d 1268 (10th Cir. 2016). In fact the Respondent asserts in its reply brief to the General Counsel’s answering brief that “Scherrer explained the content of his communications with...