Southern Bakeries, LLC, (2016)

Docket Number:15-CA-101311
 
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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.

Southern Bakeries, LLC and Bakery, Confectionery, Tobacco and Grain Millers Union, Local 111.

Cases 15–CA–101311, 15–CA–103186, 15–CA– 104063, 15–CA–106033, 15–CA–107597, 15–CA– 108613, 15–CA–109746, 15–CA–109753, 15–CA– 109755, 15–CA–115945, 26–CA–077268, and 26– CA–077536

August 4, 2016

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA

On July 17, 2014, Administrative Law Judge Robert

A. Ringler issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply. The General Counsel filed crossexceptions and a supporting brief, and the Respondent 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, cross-exceptions, and briefs, and has decided to adopt the judge’s rulings, findings,1 and conclusions as modified below, to amend the remedy, and to adopt his recommended Order as modified and set forth in full below.2

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.

In the absence of exceptions, we adopt the judge’s findings that the Respondent: (1) violated Sec. 8(a)(5) and (1) by unilaterally installing surveillance cameras; (2) violated Sec. 8(a)(1) when Supervisor Kenny White threatened employee Christopher Contreras with job loss; and

(3) violated Sec. 8(a)(3) and (1) by investigating employees Lorraine Marks and Vicki Loudermilk and placing letters in their personnel files. Additionally, in the absence of exceptions, we adopt the judge’s dismissal of the allegation that Contreras’ discharge was unlawful.

The Respondent filed bare exceptions asserting that the judge erred in finding that it unlawfully threatened discharge, job loss, and unspecified reprisals. The Respondent presented no argument in support of these exceptions. Accordingly, we find, pursuant to Sec. 102.46(b)(2) of the Board’s Rules and Regulations, that these exceptions should be disregarded. See, e.g., New Concept Solutions, LLC, 349 NLRB 1136, 1136 fn. 2 (2007).

2 We shall modify the judge’s Conclusions of Law, remedy, and recommended Order to remedy the violations found and in accordance with the Board’s standard remedial language. In accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016),

The Respondent operates a commercial bakery in Hope, Arkansas. From 2005 until 2013, the Respondent recognized the Union as the representative of a unit of its production and sanitation employees. The parties’ most recent collective-bargaining agreement expired on February 8, 2012. On July 3, 2013, while a decertification petition was pending, the Respondent withdrew recognition from the Union. The judge found, and we agree, that the withdrawal of recognition was unlawful, and that the Respondent committed numerous other violations of Section 8(a)(1), (3), and (5) of the Act before and after the withdrawal of recognition. Specifically, we affirm the judge’s findings, for the reasons stated in his decision, that the Respondent violated Section 8(a)(1) by creating an impression of surveillance and promising to reward employees with higher wages and other unspecified benefits if they rejected the Union; Section 8(a)(3) and (1) by disciplining employees Sandra Phillips and Lorraine Marks; and Section 8(a)(5) and (1) by changing plant access rights and procedures and space for employee union meetings, withdrawing recognition from the Union, and unilaterally granting unit employees a wage increase after withdrawing recognition.3 In addition, for the reasons explained in section I below, we affirm the judge’s findings that the Respondent violated Section 8(a)(1) by disparaging the Union, threatening plant closure, and stating that bargaining would be futile. Finally, as discussed in section II, we find merit to several of the General Counsel’s exceptions and accordingly find that the Respondent promulgated an unlawful rule and con-

we shall modify the judge’s recommended Order to require the Respondent to compensate Marks for the adverse tax consequences, if any, of receiving a lump-sum backpay award and to file a report with the Regional Director for Region 15 allocating the backpay award to the appropriate calendar year. We shall substitute a new notice to conform to the Order as modified and in accordance with Durham School Services, 360 NLRB No. 85 (2014).

3 In affirming the judge’s finding that the Respondent created an unlawful impression of surveillance, we rely on Frontier Telephone of Rochester, Inc., 344 NLRB 1270, 1276 (2005), enfd. 181 Fed.Appx. 85 (2d Cir. 2006). In affirming the judge’s findings that the Respondent unilaterally changed the Union’s access rights before and after it withdrew recognition from the Union, we rely on T.L.C. St. Petersburg, 307 NLRB 605, 610 (1992), enfd. 985 F.2d 579 (11th Cir. 1993), and Ernst Home Centers, 308 NLRB 848, 848–849 (1992).

The judge cited two cases, decided by a two-member Board, that were later invalidated by the Supreme Court. See New Process Steel,

L.P. v. NLRB, 130 S.Ct. 2635 (2010). However, both cases were subsequently reconsidered by a three-member panel of the Board and the resulting decisions, which adopted the rationale and result of the respective two-member decision, were judicially enforced. Stevens Creek Chrysler, 353 NLRB 1294, 1295–1296 (2009), incorporated by reference at 357 NLRB 633 (2011), enfd. Mathew Enterprise v. NLRB, 498 Fed.Appx. 45 (D.C. Cir. 2012); Turtle Bay Resorts, 353 NLRB 1242, 1275 (2009), incorporated by reference at 355 NLRB 706 (2010), enfd. 452 Fed.Appx. 433 (5th Cir. 2011).

364 NLRB No. 64

2

ducted unlawful interrogations.4

I.

A. Unlawful Disparagement of the Union

On January 17, 2013, the Respondent disseminated a document entitled: “Answers to Employee Questions Dated January 16, 2013.”5 The document asserted that it was presenting “the facts and truths about contract negotiations and union statements.” It began by recounting the bankruptcy eight years earlier of the Respondent’s predecessor, Meyer’s Bakeries, whose employees had been represented by the Union. The document then addressed the parties’ prior contracts, noted that the parties had been negotiating a new contract for close to a year, and stated that, in the event of impasse, the Respondent could implement its best and final offer. The memo then stated in relevant part:

All that the union could do is reject the contract terms and call for a strike (as they recently did at Hostess Bakeries)6 but the union cannot guarantee anything SBLLC [Southern Bakeries] does not agree to do. The union cannot guarantee 45 to 50 cent raises or any raises. The union appears to have plans to take our employees out on strike here in Hope, same as they did recently at Hostess, where over 18,000 jobs were lost and 33 bakeries and 500 retail outlets were closed. Perhaps that is why the International (Maryland) BCTGM representatives have come to Hope.

. . . .

The union often makes promises they have no ability to keep. . . . The union leaders have nothing to lose because while employees are on strike the leaders still have their pay, benefits and employment even if our employees have none. For your protection, ask the union to put their guarantees and promises in writing.

. . . .

The union statement that [the Respondent] is “gonna fire [H]ispanics (Latino employees) if they change their names” simply makes us sad and is entirely false. We believe the union feels they can frighten our employees into allowing the union to continue to control their

4 We find it unnecessary to pass on the judge’s finding that the Respondent violated Sec. 8(a)(1) by coercively interrogating employees on January 23, 2013, as it would be cumulative of other violations found.

5 There was no testimony about the memo or the “employee questions” to which it refers.

6 Here and elsewhere in the record, the Respondent referred to Hostess Bakeries, a company with employees represented by the Union.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

working lives at SBLLC.

In fact, SBLLC values the diversity of our workforce. We are truly an Equal Opportunity Employer. We welcome all applicants, including Latino applicants and employees as evidenced by the large number of Latino employees that are currently a part of our team.

You should ask the union if they have ever complained about SBLLC supposedly favoring Hispanic applicants and employees. They have complained. We determined that their complaints were factually unfounded – we treat all applicants and employees equally. The company provided the Local union with a copy of our Equal Employment Opportunity policy to review with the International and raised concerns that the Local was discriminating against Hispanics through targeted grievance allegations.

In addition, the document repeatedly labeled the Union’s alleged campaign statements as “incredible,” “false,” “misleading,” and “frighten[ing].” We therefore agree with the judge that the document unlawfully disparaged the Union.

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