Western Cab Company,

Docket Number28-CA-131426

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.

Western Cab Company and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL–CIO/CLC. Cases 28–CA– 131426, 28–CA–132767, and 28–CA–135801

May 16, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE

AND MCFERRAN

On September 2, 2015, Administrative Law Judge Ariel L. Sotolongo issued the attached decision. The Charging Party filed exceptions, a supporting brief, an answering brief, and a reply brief. The Respondent filed crossexceptions, a supporting brief, an answering brief, and a reply brief. The General Counsel filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs1 and has decided to affirm the judge’s rulings, findings,2 and conclusions only to the ___________________________

1 The Charging Party 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 Charging Party 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 affirming the judge’s finding that the Respondent did not violate Sec. 8(a)(1) by removing from its employee breakroom industry-related periodicals that happened to contain a Union advertisement, we observe that no party has excepted to the judge’s application of Wright Line 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Applying that analytical framework, we agree with the judge that the General Counsel did not establish an improper motive. Moreover, we reject the Charging Party’s argument that the Respondent failed to overcome the presumptive unlawfulness of rules barring distribution of union literature during nonwork time in a nonwork area. As the judge found, the rule here was not designed to bar the distribution of union literature; rather, it was designed to bar the distribution of industry-related periodicals that contained advertisements that endorsed driver practices in violation of State and/or local law, and it was enforced on that basis.

We also agree, for the reasons stated by the judge, that the statements by Vladimir Grigoriv and Marilyn Moran did not violate Sec. 8(a)(1). However, we disavow the judge’s inaccurate characterization of the Board’s decision in Bomber Bait Co., 210 NLRB 673 (1974).

extent consistent with this Decision and Order, to amend the conclusions of law and remedy, and to adopt the judge’s recommended Order as modified and set forth in full below.3

We reverse the judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing to give the Union pre-imposition notice and an opportunity to bargain over discretionary employee discipline during the parties’ first-contract negotiations. At the time of the judge’s decision, Board precedent did not require such notice and bargaining. The judge nonetheless found a violation because he anticipated the Board’s reversal of governing law.4 Although a subsequent Board decision newly established that there was a bargaining obligation under these circumstances, that decision was given only prospective effect. See Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016).5 Accordingly, the Respondent’s failure to give the Union notice and an opportunity to bargain over proposed discipline was not unlawful.6

We agree with the judge that the Respondent violated Section 8(a)(5) and (1) by failing to notify the Union and provide it an opportunity to bargain over its provision of health insurance to recently-hired employees. The Respondent unilaterally made its health insurance package available to employees after 60 days of employment, where previously the insurance package had only been available to employees after a year’s tenure. The Re-

Contrary to the judge, the Board in Bomber Bait found the statement “[the union] won’t help you because you won’t be here that long” to be lawful in the particular facts of that case. Id. at 674.

3 We shall amend the judge’s conclusions of law and remedy in accordance with our findings herein. We shall modify the judge’s recommended Order to conform to our findings and the Board’s standard remedial language and in accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). We shall substitute a new notice to conform to the Order as modified.

4 See Fresno Bee, 337 NLRB 1161 (2002), overruled by Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016). The judge was obligated to apply Fresno Bee in deciding this allegation because Fresno Bee was controlling precedent at the time he issued his decision. See Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984) (“We emphasize that it is a judge’s duty to apply established Board precedent which the Supreme Court has not reversed. It is for the Board, not the judge, to determine whether precedent should be varied.”).

5 Chairman Miscimarra adheres to his dissent in Total Security Management, supra, slip op. at 17-42, and would not require employers to engage in pre-imposition discipline bargaining. On this basis, he concurs in the finding that the Respondent did not violate the Act by its refusal to bargain over employee discipline.

6 Because we find no underlying violation, the judge’s proposed remedy and the Charging Party’s exceptions thereto need not be addressed.

365 NLRB No. 78

2

spondent argues that its unilateral change was privileged because, as the judge found, the Affordable Care Act (“ACA”) mandated coverage for these recently-hired employees. Although providing health insurance coverage to recent hires may have been an ACA requirement, the Respondent has nonetheless failed to meet its burden to show that the change it made was mandated by the ACA and thus did not involve discretionary decisionmaking over which the Respondent was obligated to bargain.

It is well established that when an employer is compelled to make changes in terms and condition of employment in order to comply with the mandates of another statute, it must provide the collective-bargaining representative of its employees with notice and an opportunity to bargain over the discretionary aspects of such changes.7 As found by the judge, the Respondent here had discretion over the length of the waiting period for newly hired employees to become eligible for coverage under the plan. The ACA prohibits employer-sponsored health insurance plans from imposing a waiting period of more than 90 calendar days to receive coverage.8 However, while the ACA establishes a maximum waiting period of 90 days, it does not prohibit employers or insurers from implementing a shorter waiting period. The Respondent does not contend that it was compelled, either by the ACA or by its insurer, to adopt a 60-day waiting period rather than a 30- or 90-day waiting period, or even no waiting period at all. Further, as the judge found, the Respondent possessed discretion with respect to adopting procedures for notifying and enrolling re-___________________________

7 See generally Foodway, 234 NLRB 72, 77 (1978) (“[T]he Act is the legislative scheme which, in final analysis, prescribes Respondent’s bargaining obligation. While the mandate and requirements of other Federal statutes may serve to limit the area of discretion which a party may exercise in fulfilling [its] bargaining obligation . . . to enter into the bargaining process in good faith is not thereby minimized or obviated.”). See also Watsonville Register-Pajaronian, 327 NLRB 957, 958-959 (1999) (Fair Labor Standards Act (FLSA) overtime provisions did not excuse employer’s failure to bargain over changes to employees’ schedules; FLSA did not compel the specific changes the employer made and the employer could have complied simply by paying overtime); Keystone Steel & Wire Div. of Keystone Consolidated Industries, Inc., 309 NLRB 294, 297 fn. 7, 298 (1992), rev’d on other grounds, 41

F.3d 746 (D.C. Cir. 1994) (Employee Retirement Income Security Act (ERISA) did not excuse employer’s failure to bargain over changes to pension plan; even if ERISA compelled plan changes, it did not compel the specific changes the employer made without bargaining).

8 In his decision, the judge mistakenly assumes that the maximum waiting period permitted under the ACA is 60 days. However, as the Respondent acknowledges in its reply brief to the Board, the maximum waiting period under the ACA is actually 90 days. See Public Health Service Act Section 2708, as added by ACA Section 1201 (42 U.S.C. § 300gg-7) (“A group health plan and a health insurance issuer offering group health insurance coverage shall not apply any waiting period . . . that exceeds 90 days.”).

cently-hired employees in its insurance plan. Cf. B&B Trucking, 345 NLRB 1, 5 (2005) (unilateral change to insurance enrollment period unlawful). Finally, the ACA and its regulations give an employer some discretion as to how to achieve minimum compliance with the ACA’s plan requirements, and therefore the Respondent had discretion over the type of health insurance plan it offered to recently-hired employees.9 By failing to provide the Union...

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