VISION OF ELK RIVER, INC.

VISION OF ELK RIVER, INC. 1395 Vision of Elk River, Inc. and Susie Stetler. Case 18– CA–019200 December 16, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND SCHIFFER On September 28, 2012, the Board issued a Decision and Order in this proceeding, which is reported at 359 NLRB 69. Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the Dis- trict 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 court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Supreme Court’s decision. 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, cross-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 adopt the judge’s rulings, 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 69, which is incorporated herein by reference. The judge’s recommended Order, as modified herein, is set forth in full below.2 1 In finding that the General Counsel proved that the Respondent had knowledge that employee Anne Martin engaged in union activities, we find support in Metropolitan Transportation Services, 351 NLRB 657, 658, 710 (2007), in which the Board found that an employer had knowledge of an employee’s union sympathies based on evidence that he wore a large union button to a company meeting. We do not rely on Flex-N-Gate, 358 NLRB 621 (2012), cited in the vacated Decision and Order. 2 We shall modify the judge’s recommended Order in accordance with our recent decision in Don Chavas, LLC d/b/a Tortillas Don Cha- vas, 361 NLRB 101 (2014), and to conform to the Board’s standard remedial language. We shall substitute a new notice in accordance with Durham School Services, 360 NLRB 694 (2014). Our dissenting colleague raises one point not addressed in the earlier decision. He cites the fact that the Respondent gave a positive profes- sionalism score to one member of the Union’s organizing committee, which he asserts undermines our conclusion that the General Counsel ORDER The National Labor Relations Board orders that the Respondent, Vision of Elk River, Inc., Elk River, Minne- sota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off or otherwise discriminating against em- ployees for supporting the Union or any other labor or- ganization. (b) Laying off or otherwise discriminating against em- ployees for participating in Board proceedings. (c) 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 Trudy Edick, Sharron Lynas, Anne Martin, Susie Stetler, and Susan Walberg full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Trudy Edick, Sharron Lynas, Anne Martin, Susie Stetler, and Susan Walberg whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section incorporated by reference in this De- cision. (c) Compensate Trudy Edick, Sharron Lynas, Anne Martin, Susie Stetler, and Susan Walberg for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and file a report with the Social Security Administration allocating the backpay award to the ap- propriate calendar quarters for each employee. (d) 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. proved that the Respondent laid off the five discriminatees because of their union activities. However, it is well settled that the General Counsel need not prove that an employer discriminated against all union supporters to establish that it discriminated against some. See, e.g., Handicabs, Inc., 318 NLRB 890, 897–898 (1995) (“[a]n employ- er’s failure to discriminate against every [employee who engaged in protected activity] does not disprove a conclusion that it discriminated against one of them,” and collecting relevant cases), enfd. 95 F.3d 681 (8th Cir. 1996). Accord: Livin’ Spoonful, Inc., 361 NLRB 595, 595 fn. 3 (2014). 361 NLRB No. 155 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1396 (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoffs, and within 3 days thereafter notify Edick, Lynas, Martin, Stetler, and Walberg in writing that this has been done and that the layoffs will not be used against them in any way. (f) Within 14 days after service by the Region, post at its Elk River, Minnesota facility copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 18, 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 physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the penden- cy of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent since August 31, 2009. (g) Within 21 days after service by the Region, file with the Regional Director for Region 18 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. MEMBER MISCIMARRA, dissenting. In 2009, the Respondent’s client, the Elk River School District, mandated changes to bus routes that required the Respondent to lay off five employees. It is undisputed that union activity played no role in the Respondent’s decision to lay off five employees. However, the Gen- eral Counsel alleged that the Respondent selected the five alleged discriminatees for layoff because of their long-past union activities (and also that it selected three of those five in part because of their participation in long-settled or withdrawn unfair labor practice charges). For the reasons set forth in the dissenting opinion of for- mer Member Hayes, 359 NLRB 69, 77–83, I would 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.” adopt the judge’s decision dismissing the complaint in its entirety.1 In particular, I believe the majority’s unfair labor practice findings are undermined by the following considerations. First, only one of the five alleged discriminatees, Shar- ron Lynas, played more than a minor role in the Union’s unsuccessful organizing campaign back in 2007. The General Counsel failed to prove that the Respondent even knew about the minor union activities of Anne Mar- tin, Susie Stetler, and Susan Walberg when it decided to lay them off. Second, the statements relied upon by the majority as evidence of union animus were made 2 years before the layoffs at issue, and numerous decisions (cited in former Member Hayes’ dissent) establish that statements that remote in time do not support a causal nexus between union activity and adverse employment action. Third, the statements were made by two managers, one of whom played no role in the layoff decisions and was absent from the workplace for health reasons when they were made, and the other of whom played only a minis- terial role, merely recording employees’ performance scores calculated by a different manager in order to select the five poorest performers for layoff. Further, the statements themselves are ambiguous and reasonably susceptible to interpretations that do not betray any union animus. Fourth, there is no evidence that any of the Respond- ent’s employees, including the alleged discriminatees, engaged in any union activity in the 2 years between the September 2007 Board election and the August 2009 layoffs. Fifth, while the Respondent made several errors when calculating employees’ attendance scores, those mistakes actually benefited Stetler, Walberg, and Trudy Edick by giving them higher scores than they deserved. And, alt- hough Lynas should have received 5 additional attend- ance points, she would have been among the five lowest- scoring employees even if her score had been calculated accurately. Thus, the errors reveal no bias or animus against union supporters. Sixth, while “professionalism,” one of the three criteria used by the Respondent to evaluate employees for layoff, involved some subjective judgment, use of a subjective criterion does not itself evidence union animus. Further, the General Counsel did not prove that the Respondent manipulated professionalism scores to retaliate against the alleged discriminatees for their protected activities. I 1 Member Hayes served on the Board after being nominated by the President and confirmed by the Senate. The validity of his appointment was not called into question by NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). VISION OF ELK RIVER, INC. 1397 note here that the Respondent gave a perfect profession- alism score of 20 to employee Julie Thornton, who, un- like four of the alleged discriminatees, actually served on the Union’s organizing committee in 2007, of which the Respondent was well aware. Seventh, Stetler and Martin received subpoenas to tes- tify in an unrelated Board case that settled more than a year before the layoffs, and neither employee ever testi- fied against the Respondent’s interests. Additionally, while the Respondent’s agents perceived that Edick had played some role in a third unfair labor practice charge filed by the Union in 2008, the Union withdrew that charge long before the layoff decisions at issue. None of the General Counsel’s evidence establishes that the Re- spondent harbored any animus toward employee partici- pation in Board proceedings. For the above reasons and for those explained more fully in former Member Hayes’ dissent, I believe that the General Counsel has not satisfied his burden of proving that the Respondent selected any of the five alleged dis- criminatees for layoff because of their protected activi- ties. I would therefore affirm the judge’s decision and dismiss the complaint in its entirety. Accordingly, I re- spectfully dissent. 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 or otherwise discriminate against you for supporting the Union or any other labor organi- zation. WE WILL NOT lay off or otherwise discriminate against you for participating in Board proceedings. 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 Trudy Edick, Sharron Lynas, Anne Martin, Susie Stetler, and Susan Walberg 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. WE WILL make Trudy Edick, Sharron Lynas, Anne Martin, Susie Stetler, and Susan Walberg whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, less any net interim earnings, plus interest. WE WILL compensate Trudy Edick, Sharron Lynas, Anne Martin, Susie Stetler, and Susan Walberg for the adverse tax consequences, if any, of receiving a lump- sum backpay award, and file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful layoffs of those employees, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the layoffs will not be used against them in any way. VISION OF ELK RIVER, INC. The Board’s decision can be found at www.nlrb.gov/case/18–CA–019200 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.