Rose Fence, Inc.

1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rose Fence, Inc. and Local 553, International Broth- erhood of Teamsters. Cases 29–CA–030485 and 29–CA–030537 December 16, 2014 DECISION AND ORDER BY MEMBERS HIROZAWA, JOHNSON, AND SCHIFFER On October 22, 2012, the Board issued a Decision and Order in this proceeding, which is reported at 359 NLRB 225. Thereafter, the General Counsel filed an application for enforcement in the United States Court of Appeals for the Second Circuit. 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 ap- pointments to the Board were not valid. Thereafter, the court of appeals granted the General Counsel’s motion to vacate the Board’s Decision and Order and to remand this case for further proceedings consistent with the Su- preme Court’s decision. The court also issued a mandate returning the case to the Board. 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- 1 Member Johnson agrees with his colleagues that the Respondent violated Sec. 8(a)(5) by unilaterally laying off employees after its bar- gaining obligation arose. In so doing, he acknowledges the Respond- ent’s argument that the judge erred in finding that “past practice” is not a cognizable defense to the Respondent’s failure to bargain here be- cause it is not relying on a mere “past practice,” but on a decision made before its bargaining obligation arose. In the abstract, Member Johnson does not preclude the possibility that an employer might prevail on such on argument if, for example, it presented evidence of a master 10- year plan setting forth firm action tied to specific benchmarks that it would take annually. But the evidence presented here does not rise to such a level: the Respondent did not establish that it made a hard pre- bargaining obligation decision to lay off some ascertainable number or percentage of employees by some fixed formula every slow season. Indeed, Rosenzweig testified that “every year is different . . . if the year gets real lean I might have to reduce hours and do layoffs” (emphasis. added), and it appears that there were significant swings in the number of employees laid off in the past 8–10 years. The Respondent does not except to the judge’s finding that the number, timing, and terms of the postelection individual layoffs were not made in accord with a past practice of limited discretion; it merely argues that it is free to later work out the “details” of its prebargaining obligation decision. Under the facts presented here, Member Johnson believes that the policies 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 225, which is incorporated herein by reference. The judge’s recommended Order, as further modified herein, is set forth in full below.2 ORDER The Respondent, Rose Fence, Inc., Baldwin, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally laying off employees in the following bar- gaining unit represented by Local 553, International Broth- erhood of Teamsters (the Union): All full-time, regular part-time and seasonal drivers, in- stallers, driver-installers, helpers, installer-helpers, yard workers and carpenters employed by the Employer at its facility located at 939 Church Street, Baldwin, New York excluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. without providing the Union with timely notice and an op- portunity to bargain about the decision to lay off employees and the effects of the layoff. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Before implementing any layoff of bargaining unit employees notify and, on request, bargain with Local 553, International Brotherhood of Teamsters, as the ex- clusive collective-bargaining representative of employees in the bargaining unit, over the decision to lay off em- ployees and the effects of such layoff. (b) Within 14 days from the date of the Board’s Order, offer the employees unilaterally laid off after the Union’s selection as collective-bargaining representative 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. (c) Make the unit employees described above whole for any loss of earnings and other benefits suffered as a mandating bargaining apply to the Respondent’s 2010 decision to im- plement the consecutive layoffs and its effects. 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 694 (2014). 361 NLRB No. 134 ROSE FENCE, INC. 1199 result of the Respondent’s unilateral layoff of employees, in the manner set forth in the remedy section of the judge’s decision. (d) Compensate the unit employees described above for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters. (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 analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its Baldwin, New York facility copies of the attached noticed marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to the physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since July 2010. (g) Within 21 days after service by the Region, file with the Regional Director for Region 29 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. 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.” APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 lay off employees in the following bar- gaining unit represented by Local 553, International Brotherhood of Teamsters (the Union): All full-time, regular part-time and seasonal drivers, in- stallers, driver-installers, helpers, installer-helpers, yard workers and carpenters employed by the Employer at its facility located at 939 Church Street, Baldwin, New York excluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. without providing the Union with timely notice and an op- portunity to bargain about the decision to lay off employees and the effects of the layoff. 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, before implementing any layoff of bargain- ing unit employees notify and, on request, bargain with the Union over the decision to lay off employees and the effects of such layoff. WE WILL, within 14 days from the date of the Board’s Order, offer our employees unlawfully laid off after the Union’s selection as collective-bargaining representative full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or priv- ileges previously enjoyed. WE WILL make our unit employees who were unlawful- ly laid off whole for any loss of earnings and other bene- fits suffered as a result of our unilateral layoff of em- ployees, less any interim earnings, plus interest. WE WILL compensate our unit employees who were un- lawfully laid off for the adverse tax consequences, if any, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200 of receiving a lump-sum award, and WE WILL file a report with the Social Security Administration allocating their backpay awards to the appropriate calendar quarters. ROSE FENCE, INC. The Board’s decision can be found at www.nlrb.gov/case/29–CA–030485 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.