Strategic Resources, Inc., (2016)

Docket Number:19-CA-070217
 
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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.

Strategic Resources, Inc. and International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge W-24. Cases 19–CA– 070217, 19–CA–070224, 19–CA–072173, 19–CA– 072184, 19–CA–077901, 19–CA–088406, 19–CA– 103576, 19–CA–111874

July 12, 2016 DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN

On February 4, 2015, Administrative Law Judge John

  1. McCarrick 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 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 exceptions1 and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions, to

    1 There are no exceptions to the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by refusing to provide and unreasonably delaying in providing information to the International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge W-24 (Union), by failing to meet with the Union at reasonable times and places for bargaining, by refusing to bargain in good faith with the Union over a confidentiality agreement, protective order, or other appropriate procedure to address confidentiality concerns of the Respondent, by taking the position that it reached impasse with the Union in bargaining for a confidentiality agreement, and by withdrawing recognition from the Union as the exclusive collective-bargaining representative of bargaining unit employees on August 19, 2013. There are no exceptions to the judge’s dismissal of the remaining complaint allegations. Further, there are no exceptions to the judge’s finding that the Regional Director was justified in revoking a January 2013 settlement agreement between the parties.

    2 For the reasons stated by the judge, we adopt his findings that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally changing the formula for calculating bargaining unit employees’ holiday pay. In particular, we agree with the judge that the Respondent established a practice of paying unit employees non-prorated holiday pay. Even assuming, however, that the Respondent’s distribution of 8 hours’ pay for the 3 paid holidays occurring between April and September in 2011 was insufficient to constitute an “established practice,” we would still find that the Respondent violated the Act by unilaterally deciding to prorate holiday pay as of October 2011. As the judge noted, by letter dated May 12, 2011, the Respondent recognized the Union as the exclusive collective-bargaining representative of unit employees and acknowledged that, as of that date, it had implemented its initial terms and conditions of employment for the unit. One of these terms materialized in the form of a recurring distribution of 8 hours’ holiday pay to unit employees for Memorial Day, Independence Day, and Labor Day in 2011. Thus, the Respondent’s subsequent unilateral change to that

    amend the remedy, and to adopt the recommended Order as modified and set forth in full below.3

    AMENDED REMEDY

    Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by unilaterally altering its formula for calculating bargaining unit employees’ holiday pay, we shall order the Respondent to make bargaining unit employees whole. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), 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).

    In addition, in accordance with our recent decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), we shall order the Respondent to compensate bargaining unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 19, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year for each employee.

    term, by which it implemented a prorated holiday-pay formula without giving the Union notice or an opportunity to bargain over the change, violated Sec. 8(a)(5) and (1). See Bronx Health Plan, 326 NLRB 810, 813 (1998), enfd. 203 F.3d 51 (D.C. Cir. 1999); Banknote Corp. of America, 315 NLRB 1041, 1041 (1994), enfd. 84 F.3d 637 (1996), cert. denied 519 U.S. 1109 (1997). Member Miscimarra agrees that the Respondent violated Sec. 8(a)(5) and (1) when it changed one of its initial terms and conditions of employment without giving the Union notice and an opportunity to request bargaining. He does not reach or pass on his colleagues’ finding that paying non-prorated holiday pay had become an established practice at the time Respondent changed it.

    In its exceptions, the Respondent argues that it lawfully began prorating holiday pay in order to correct an error caused by employees who, it contends, incorrectly entered their time in dereliction of what the Respondent instructed them to do. The Respondent waived that argument by failing to raise it before the judge. See Yorkaire, Inc., 297 NLRB 401 (1989), enfd. 922 F.2d 832 (3d Cir. 1990). We would nevertheless reject the Respondent’s argument, as there is insufficient evidence that employees improperly or erroneously claimed 8 hours’ holiday pay against the Respondent’s clear policy and instruction.

    3 We have amended the remedy and modified the judge’s recommended Order to more closely conform to the Board’s standard remedial language, to the violations found, and to the circumstances of this case, as explained herein. We shall substitute a new notice to conform to the Order as modified.

    We have corrected several inadvertent typographical errors made by the judge in his decision. These errors have not affected our disposition of this case.

    364 NLRB No. 42

    2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    Although we have found that the Respondent has violated Section 8(a)(5) and (1) by unlawfully refusing to furnish information requested by the Union in 2012 and 2013 concerning the terms and conditions of bargaining unit employees’ employment, we must separately consider whether it is appropriate to order the Respondent to provide that information to the Union at this time. The Union requested that information to assist it in its thenongoing contract negotiations with the Respondent. However, it appears from the record that while the Respondent continues to function as a corporate entity, its contract with the U.S. Department of Defense for transportation services at Joint Base Lewis McChord (JBLM) has expired, it no longer operates there, and it does not employ any bargaining unit employees.4 Thus, consistent with our decision in Boeing Co., 364 NLRB No. 24 (2016), we refer the issue of the Union’s need for the information to the compliance stage of these proceedings. Accordingly, we will order the Respondent to produce the requested information, unless the Respondent establishes in the compliance proceeding, under the procedure set forth in Boeing Co., that the Union has no need for the information.

    Further, when a respondent has committed violations of the Act, the Board typically orders it to post, for 60 days, a notice to employees in conspicuous places within its facility, including all places where notices to employees are customarily posted. However, in this case, because it appears that the Respondent neither maintains a presence at JBLM nor employs any bargaining unit employees, physical posting of the notice is not a feasible remedial option, and the General Counsel has conceded as much. Accordingly, we shall decline to order the Respondent to physically post the notice.

    The Respondent and the General Counsel agree, however, that it is appropriate for the notice to be mailed, and Board precedent “provides for the mailing of individual notices when posting will not adequately inform the employees of the violations that have occurred and their rights under the Act.” Parkview Hospital, Inc., 343 NLRB 76, 76 fn. 3 (2004) (citing Indian Hills Care Center, 321 NLRB 144 (1996)). Accordingly, we shall order the Respondent to mail a copy of the attached notice marked “Appendix” to the Union and to the last known addresses of the bargaining unit employees employed by

    4 The Respondent did not argue during the hearing before the administrative law judge that the production of the information should not be ordered. Rather, it asserted in its Exceptions to the Administrative Law Judge’s Decision that the ALJ erred by ordering the production of the information, based on the General Counsel’s statement in its posthearing brief to the ALJ that the Respondent no longer employed the employees.

    the Respondent at any time from the onset of the unfair labor practices until the date the notices are mailed.

    The Respondent has excepted to the judge’s Order requiring it to distribute the notice electronically in accordance with J. Picini Flooring, 356 NLRB 11 (2010). The Respondent contends that the judge’s Order is inappropriate because mailing the notice alone will be sufficient and because the Respondent no longer employs bargaining...

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