Hartman and Tyner, Inc. d/b/a Mardi Gras Casino and Hollywood Concessions, Inc.

MARDI GRAS CASINO 679 Hartman and Tyner, Inc., d/b/a Mardi Gras Casino and Hollywood Concessions, Inc. and UNITE HERE! Local 355, affiliated with UNITE HERE! Cases 12–CA–072234, 12–CA–072238, 12–CA–072245, 12–CA–072246, 12–CA–072248, 12–CA–072251, 12–CA–072254, 12–CA–072257, and 12–CA–072263 September 30, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND SCHIFFER On April 25, 2013, the Board issued a Decision and Order in this proceeding, which is reported at 359 NLRB 895 (2013). Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit, and the General Counsel filed a cross-application for enforcement. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally in- firm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appoint- ments to the Board were not valid. Thereafter, the Board issued an order setting aside the Decision and Order, and retained this case on its docket for further action as ap- propriate. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the judge’s decision and the record in light of the exceptions and briefs. We have also considered the now-vacated Decision and Order, and we agree with the rationale set forth therein.1 Accordingly, we affirm the judge’s rul- ings, findings, and conclusions and adopt the judge’s recommended Order to the extent and for the reasons stated in the Decision and Order reported at 359 NLRB 895, which is incorporated herein by reference. The judge’s recommended Order, as further modified herein, is set forth in full below. 2 1 In finding that the Respondent’s interrogation of Nnaemeka shows that it knew, or at least suspected, that she supported the Union, we rely on Southern Pride Catfish, 331 NLRB 618, 620 (2000), and McLean Roofing, 276 NLRB 830, 833 (1985). We do not rely on Evenflow Transportation, 358 NLRB 695 (2012), cited in the vacated decision. 2 We shall also modify the judge’s recommended Order and substi- tute a new notice in accordance with our recent decision in Don Cha- vas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). We shall further modify the notice in accordance with Durham School Services, 360 NLRB 85 (2014). ORDER The Respondent, Hartman and Tyner, Inc., d/b/a Mardi Gras Casino and Hollywood Concessions, Inc., Hallan- dale Beach, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees regarding their union sympathies and the union activities of other em- ployees. (b) Threatening employees with unspecified reprisals because of their union activities. (c) Threatening employees with arrest for engaging in protected concerted union activities. (d) Informing employees that they have been dis- charged because they engaged in protected concerted union activities. (e) Suspending, discharging, or otherwise discriminat- ing against employees because of their union activities in support of UNITE HERE! Local 355, affiliated with UNITE HERE!, or any other labor organization. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Sochie Nnaemeka, James Walsh, Dianese Jean, Alicia Bradley, Theresa Daniels-Muse, Tashana McKenzie, Amanda Hill, and Steven Wetstein full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. (b) Make Sochie Nnaemeka, James Walsh, Dianese Jean, Alicia Bradley, Theresa Daniels-Muse, Tashana McKenzie, Amanda Hill, and Steven Wetstein whole for any loss of earnings and other benefits suffered as a re- sult of the discrimination against them, in the manner set forth in the amended remedy section of this decision. (c) Compensate Sochie Nnaemeka, James Walsh, Di- anese Jean, Alicia Bradley, Theresa Daniels-Muse, Tashana McKenzie, Amanda Hill, and Steven Wetstein for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file a report with the So- cial Security Administration allocating the backpay award to the appropriate calendar quarters. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspensions and discharges, and within 3 days thereafter, notify the employees in writing that this has been done and that the suspensions and discharges will not be used against them in any way. 361 NLRB No. 59 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680 (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to determine the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its Hallandale Beach, Florida, facility copies of the at- tached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 12, in English, Haitian Creole, and such other languages as the Regional Director determines are necessary to ful- ly communicate with employees, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consec- utive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 30, 2011. (g) Within 21 days after service by the Region, file with the Regional Director for Region 12 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively question you about your un- ion sympathies or the union activities of your fellow em- ployees. WE WILL NOT threaten you with unspecified reprisals because of your union activities. WE WILL NOT threaten you with arrest for engaging in protected concerted union activities. WE WILL NOT inform you that you have been dis- charged because you engaged in protected concerted union activities. WE WILL NOT suspend, discharge, or otherwise dis- criminate against you for supporting UNITE HERE! Lo- cal 355, affiliated with UNITE HERE! or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Sochie Nnaemeka, James Walsh, Dianese Jean, Alicia Bradley, Theresa Daniels-Muse, Tashana McKenzie, Amanda Hill, and Steven Wetstein full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Sochie Nnaemeka, James Walsh, Di- anese Jean, Alicia Bradley, Theresa Daniels-Muse, Tashana McKenzie, Amanda Hill, and Steven Wetstein whole for any loss of earnings and other benefits result- ing from their suspensions and discharges, less any inter- im earnings, plus interest. WE WILL compensate Sochie Nnaemeka, James Walsh, Dianese Jean, Alicia Bradley, Theresa Daniels-Muse, Tashana McKenzie, Amanda Hill, and Steven Wetstein for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file a report with the Social Security Administration allocating the back- pay award to the appropriate calendar quarters. MARDI GRAS CASINO 681 WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful suspensions and discharges of Theresa Daniels-Muse, Tashana McKenzie, and Amanda Hill and the unlawful discharges of Sochie Nnaemeka, James Walsh, Dianese Jean, Alicia Bradley, and Steven Wetstein, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the suspensions and dis- charges will not be used against them in any way. HARTMAN AND TYNER, INC. D/B/A MARDI GRAS CASINO AND HOLLYWOOD CONCESSIONS, INC. The Board’s decision can be found at www.nlrb.gov/case/12–CA–072234 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.