Tschiggfrie Properties, LTD,
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.
Tschiggfrie Properties, Ltd and Teamsters Local 120, a/w International Brotherhood of Teamsters. Case 25–CA–161304
February 13, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
On June 24, 2016, Administrative Law Judge Keltner
W. Locke issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief and cross-exceptions, and the Respondent filed an answering brief.
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, and conclusions1 only to the extent consistent with this Decision and Order.2
1 We adopt the judge’s findings that the Respondent’s August 17, 2015 written warning to employee Darryl Galle independently violated both Sec. 8(a)(1) and (3) of the Act.
We also adopt the judge’s finding that the Respondent’s discharge of Galle violated Sec. 8(a)(3). Initially, we agree with the judge’s statement of the General Counsel’s initial Wright Line burden. See Mesker Door, Inc., 357 NLRB 591, 592 & fn. 5 (2011) (General Counsel establishes antiunion motivation of employer’s conduct in the first instance by showing “union activity by the [affected] employee, employer knowledge of the activity, and antiunion animus by the employer”; the General Counsel’s initial burden does not include a fourth “nexus” element). The judge correctly found that the General Counsel established that Galle’s union activity, which included initiating the organizing campaign, serving as the Union’s election observer, and frequently discussing the Union with coworkers, was a motivating factor in the Respondent’s decision to discharge him. The Respondent clearly had knowledge of Galle’s union activity—its August 17 warning to Galle expressly disciplined him for engaging in union discussions—and that warning also establishes animus.
The judge also correctly found that the Respondent failed to establish that it would have discharged Galle even in the absence of his union activity. The Respondent’s General Manager Rodney Tschiggfrie testified that he discharged Galle for sleeping on the job and for having a nonwork-related website open on his personal laptop on October 1, 2015. The Respondent, however, had known for months that Galle had been sleeping on the job, yet it never disciplined him for it. The Respondent claims that it was awaiting documentation from Galle’s doctor to verify if Galle had a medical condition that caused him to fall asleep on the job. However, the Respondent never followed up with Galle about this documentation even after several months had passed without receiving it. Moreover, the Respondent made no reference to sleeping on the job when discharging Galle. With regard to Tschiggfrie’s observing a nonwork-related website open on Galle’s laptop, we note that the Respondent allows employees to use their personal computers for work and does not have a rule prohibiting employees from accessing nonwork-related websites. Moreover, the Respondent did not attempt to verify Galle’s claim that he was using his
The General Counsel excepts to the judge’s finding that the Respondent’s prehearing interviews with employee Bill Kane did not violate Section 8(a)(1).3 For the reasons that follow, we reverse the judge and find this violation.
The Respondent’s attorney, Davin Curtiss, and General Manager Tschiggfrie interviewed Kane twice in preparation for the hearing in this case. The first interview was approximately a month before the hearing, and the second interview was approximately a week before the hearing. During the first interview, the Respondent questioned Kane about the union campaign and Galle’s approaching Kane to talk about the Union. Kane testified that he could not “honestly say” whether the Respondent told him that the first interview was voluntary,
laptop to get information about a truck transmission on which he was working. Instead, the Respondent immediately discharged Galle and only subsequently investigated his use of the internet. Further, although Tschiggfrie testified that the Respondent regards accessing nonwork-related websites during work time as “theft of company time,” the Respondent did not establish that it has previously punished an employee for accessing a nonwork-related website during work time or for committing any comparable infraction. We therefore find, in agreement with the judge, that the Respondent failed to establish that it would have discharged Galle even in the absence of his union activity.
Acting Chairman Miscimarra disagrees with the judge’s statement that the General Counsel does not have to prove a connection between an employer’s antiunion animus and the adverse employment action, the lawfulness of which is at issue. In Wright Line, the Board stated that the General Counsel must make “a prima facie showing sufficient to support the inference that protected conduct was a ‘motivating factor’ in the employer’s decision.” 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Thus, under Wright Line, the General Counsel must establish a link or nexus between the employee’s protected activity and the employer’s decision to take the employment action alleged to be unlawful. See Libertyville Toyota, 360 NLRB 1298, 1306 fn. 5 (2014) (then-Member Miscimarra, concurring in part and dissenting in part), enfd. 801 F.3d 767 (7th Cir. 2015); Starbucks Coffee Co., 360 NLRB 1168, 1172 fn. 1 (2014) (then-Member Miscimarra, concurring); see also AutoNation, Inc. v. NLRB, 801 F.3d 767, 775 (7th Cir. 2015) (holding that “there must be a showing of a causal connection between the employer’s anti-union animus and the specific adverse employment action on the part of the decisionmaker”); Nichols Aluminum, LLC v. NLRB, 797 F.3d 548, 554–555 (8th Cir. 2015), denying enforcement of 361 NLRB No. 22 (2014) (“Simple animus toward the union is not enough. While hostility to a union is a proper and highly significant factor for the Board to consider when assessing whether the employer’s motive was discriminatory, general hostility toward the union does not itself supply the element of unlawful motive.”) (alterations and internal quotations omitted). Applying this standard, Acting Chairman Miscimarra finds the General Counsel made the requisite prima facie showing required under Wright Line in this case.
2 We shall amend the remedy and modify the judge’s recommended Order to conform to our findings and the Board’s standard remedial language. We shall also substitute a new notice to conform to the Order as modified.
3 The General Counsel does not except to the judge’s failure to find that the Respondent’s prehearing interview with Samuel Becker violated Sec. 8(a)(1).
365 NLRB No. 34
but the Respondent did not tell Kane that it would not take any action against him as a result of the first interview. During the second interview, the Respondent again questioned Kane about the union campaign without telling him that the interview was voluntary or assuring him that it would not take action against him as a result of the interview.
When an employer interviews an employee about protected activity in preparation for an unfair labor practice hearing, “the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis.” Johnnie’s Poultry Co., 146 NLRB 770, 774–775 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965). “The Board has held that compliance with Johnnie’s Poultry safeguards constitutes the minimum required to dispel the potential for coercion in cases where an employer questions employees in preparing for a Board hearing.” Albertson’s, LLC, 359 NLRB 1341, 1343 (2013) (internal quotations omitted), affd. and incorporated by reference in 361 NLRB No. 71 (2014); see also Freeman Decorating Co., 336 NLRB 1, 19 (2001) (stating that the Board takes a “bright-line approach” in enforcing the Johnnie’s Poultry safeguards), enf. denied on other grounds sub nom. Stage Employees IATSE v. NLRB, 334 F.3d 27 (D.C. Cir. 2003).4
During both interviews, the Respondent questioned Kane about protected activity by asking him about the union campaign and Galle’s approaching him to talk about the Union. The Respondent failed to provide Kane with assurances against reprisals at both interviews and failed to inform him that his participation in the second interview was voluntary. By questioning Kane at the prehearing interviews without complying with Johnnie’s Poultry, the Respondent violated Section 8(a)(1).5
Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and de
4 We agree with the General Counsel that the judge erred by applying the Rossmore House standard governing alleged interrogations. 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). See Bill Scott Oldsmobile, 282 NLRB 1073, 1075 (1987) (finding that the dissent’s reliance on Rossmore House was misplaced because “the nature and circumstances of employer interviews in preparation for litigation justify a more formal standard for ensuring that employees’ rights are protected”).
5 Acting Chairman Miscimarra agrees that the interviews of employee Kane violated Sec. 8(a)(1), and he would reach the same result under the “totality of the circumstances” standard the Board adopted in Rossmore House, supra. He does not reach and expresses no view as...
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