Schwarz Partners Packaging, LLP d/b/a MaxPak

368 NLRB No. 8 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive 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. Schwarz Partners Packaging, LLC d/b/a MaxPak and United Steelworkers International Union. Cases 12–CA–109207 and 12–RC–073852 June 17, 2019 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL On August 29, 2012, the National Labor Relations Board issued an unpublished Decision and Direction in this proceeding adopting in large part the hearing of- ficer’s findings that the Respondent had engaged in ob- jectionable conduct prior to a March 15, 2012 election held pursuant to a Stipulated Election Agreement. The decision also directed the Regional Director to open and count two challenged ballots, as to which no exceptions were filed, and to issue a revised tally. If the revised tally showed that the Union did not receive a majority of the valid ballots cast, the decision directed the Regional Director to set aside the election and order a new elec- tion. In a second election, the Union received a majority of valid votes, and it was certified on November 6, 2012. On June 26, 2015, the National Labor Relations Board issued a Decision and Order, reported at 362 NLRB 1131, granting the General Counsel’s motion for sum- mary judgment and finding that the Respondent unlaw- fully withdrew recognition from and subsequently failed and refused to recognize and bargain with the Union. Thereafter, the Respondent filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit, and the General Counsel filed an application for enforcement. At the time of the Decision and Direction in the repre- sentation proceeding, the composition of the Board in- cluded two persons whose appointments to the Board had been challenged as constitutionally infirm. On June 26, 2014, the United States Supreme Court issued its deci- sion in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appointments were not valid. Thereafter, the court of appeals, at the Board’s request, remanded this case for further proceedings consistent with the Supreme Court’s decision.1 1 While the Respondent’s petition for review was pending, several post-Noel Canning court decisions made clear that Noel Canning-based objections to the Board’s composition can be raised at any time, includ- ing after the parties had engaged in bargaining, as was the circumstance here. See UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015); SSC Mystic Operating Co. v. NLRB, 801 F.3d 302 (D.C. Cir. 2015); and The National Labor Relations Board has consolidated the underlying representation proceeding with the unfair labor practice proceeding and delegated its authority in both proceedings 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 Respondent’s objections to the election held on March 15, 2012, and the hearing officer’s report recommending disposition of them. A de novo review was necessary because the Board’s August 29, 2012 decision in the rep- resentation proceeding ordered that the election be set aside if the Union lost and in that way directly affected the election results at a time when the Board lacked a valid quorum.2 Based on this review, as discussed be- low, we set aside the August 29, 2012 Decision and Di- rection of Election and order a new election. We also dismiss the underlying unfair labor practice complaint, which was based on the Respondent’s refusal to bargain with the invalidly certified union. The initial tally of ballots showed 39 votes for and 38 against the Union, with 2 challenged ballots. Notably, no exceptions were filed regarding the hearing officer’s rec- ommendation to overrule the challenged ballots, which resulted in a revised tally showing 39 for and 40 against the Union, with no challenged ballots. We find that be- cause the challenged ballots were cast before any action by the invalidly constituted Board and no exceptions were filed, the Decision and Direction could not have affected those ballots, and we accept the revised tally. With regard to the Union’s objections, the Board has reviewed the hearing officer’s report and record in light of the exceptions and briefs. We adopt the hearing of- ficer’s findings and recommendations only to the extent discussed herein. Specifically, while the Hearing Officer found that Objections 5, 7, and 11 should be sustained and the election set aside on that basis, we review and sustain only Objection 11. Because we find the conduct alleged in Objection 11 sufficient to warrant setting aside Hospital of Barstow, Inc. d/b/a Barstow Community Hospital v. NLRB, 820 F.3d 440 (D.C. Cir. 2016). Based on these decisions, the Board requested remand to address the Respondent’s challenge, which the Board had previously found the Respondent had waived by entering into negotiations with the Union. MaxPak, 362 NLRB 1131 (2015). 2 The invalid Board’s imprint on the election sets this case apart from other post-Noel Canning cases in which the Board relied on the results of elections that occurred when the Board’s composition was invalid. See, e.g., Panera Bread, 361 NLRB 1236 (2014); Stamford Hospitality, 361 NLRB 1012 (2014); Sands Casino Resort Bethlehem, 361 NLRB 916 (2014); STG Int’l, Inc., Case 21–RC–097525 (June 22, 1015). In the above cases, the constitutionally infirm Board did not issue a decision that directly affected election results. Here, however, we find that the August 29, 2012 Decision and Direction of Election lacks a valid Board imprimatur and cannot stand. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 the election results, we find it unnecessary to pass on Objections 5 and 7. With respect to Objection 11, the hearing officer found that Converting Superintendent Doug Stewart engaged in objectionable conduct by stating to employee Sonja Phil- lips, when he wrongly accused her of being tardy, that if the Union represented her, he would already have dis- charged her. Stewart then echoed that sentiment by stat- ing to employees in weekly safety meetings that he liked unions because it was easier to get rid of people. We note that the hearing officer credited the employees’ tes- timony in this regard over Stewart’s denials. In doing so, the hearing officer properly considered the employees’ current employee status. See Flexsteel Industries, 316 NLRB 745, 745 (1995) (current employee testimony contradicting statements of supervisors is “particularly reliable because those witnesses are testifying adversely to their pecuniary interests”), affd. mem. 83 F.3d 419 (5th Cir. 1996). We agree with the hearing officer that Stewart’s state- ments threatened the employees with stricter discipline if they selected the Union as their exclusive bargaining representative, implying that any protections the employ- ees currently had shielding them from discipline would diminish once the Union was elected. As the hearing officer explained, each employee “got the message from Stewart,” which was that “the surest protection of your job security is a vote against the Union.” See, e.g., Pa- cific Coast Sightseeing Tours & Charters, Inc., 365 NLRB No. 131, slip op. at 5–7, 9–10 (2017) (statements that if the union came in, supervisor would write up em- ployee for being 30 seconds late, and employees would have more requirements, found objectionable); Miller Industries Towing Equipment, Inc., 342 NLRB 1074, 1074, 1084 (2004) (general manager’s statement that if the union was elected, the employer would have to en- force breaktimes and lunchtimes more strictly); Family Foods, Inc., 300 NLRB 649, 661–662 (1990) (supervi- sor’s statement that unionization would make it easier to discharge people was an unlawful threat of reprisal), enf. denied on other grounds, 968 F.2d 1214 (6th Cir. 1992). These statements were unlawful threats that had a ten- dency to interfere with the employees’ free choice and could have affected the election results. The record does not support the Respondent’s claim that these statements occurred outside the critical period. Phillips testified that Stewart’s statement to her occurred after a safety meeting “a couple of days before the elec- tion,” and employee Waldemar Ortiz noted that on more than one occasion, and at least at two or three of the weekly safety meetings leading up to the election, Stew- art stated that unions made it easier to “get rid of peo- ple.” Equally meritless are the Respondent’s claims that Stewart’s statement to Phillips was not objectionable because there was no evidence of dissemination and Phil- lips was personally unaffected. These arguments ignore that Stewart repeated a similar message to the unit during the weekly meetings and that Phillips’ subjective reac- tion to the statement is irrelevant in determining whether it is objectionable. Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995) (Board applies an objective test, i.e., whether the conduct of a party to an election has the ten- dency to interfere with the employees' freedom of choice; hearing officer erroneously considered whether a threat altered an employee’s behavior).3 Accordingly, because it was directed by an infirm Board, we shall set aside the second election and the No- vember 6, 2012 certification of representative based on it. We review de novo the hearing officer’s first deci- sion, sustain the Union’s objection 11, and direct a third election. Having found the certification invalid, we va- cate the Board’s Decision and Order reported at 362 NLRB No. 138, and we dismiss the complaint.4 ORDER The complaint issued August 1, 2013, is dismissed. DIRECTION OF THIRD ELECTION It is directed that the Regional Director for Region 12 shall set aside the second election in this proceeding. A third election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Regional Director deems appropriate. The Regional Director shall direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote are those employed during the payroll period ending imme- 3 In sustaining this objection, we do not rely on General Manager Steve Wasko’s statement to employees at a mandatory meeting that a group of employees who were “on the borderline of losing their jobs” were the ones who wanted a union. 4 After the court’s remand, the Respondent filed a statement of posi- tion in which it asserted for the first time that the complaint in this proceeding was unlawfully issued because the Supreme Court found that Acting General Counsel Lafe Solomon lacked authority under the Federal Vacancies Reform Act in NLRB v. SW General, Inc. d/b/a Southwest Ambulance, 137 S.Ct. 929 (2017). The Respondent’s con- tention is untimely, because the Respondent failed to raise the issue in its answer to the complaint. See, e.g., H&M Int’l Transp. Inc., 363 NLRB No. 139 (2016) (FVRA-based challenge to complaint’s validity is waived if not timely raised), enfd. 719 F. Appx. 3 (D.C. Cir. 2018). In any event, in view of our dismissal of the complaint, we need not otherwise address this contention or the Respondent’s challenge to the notice-reading remedy. Moreover, there is no merit to the Respond- ent’s additional claim that its petition for review to the circuit court divested the Board of jurisdiction over the representation proceeding. Pursuant to Sec. 9(c) of the Act, 29 U.S.C. § 159(d), the Board retains authority to resume processing the representation case in a manner consistent with the court’s ruling in the unfair labor practice case. See Boire v. Greyhound Corp., 376 U.S. 473, 477–479 (1964). SCHWARZ PARTNERS PACKAGING, LLC D/B/A MAXPAK 3 diately before the date of the Notice of Third Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the date of the election directed herein and who retained their em- ployee status during the eligibility period and their re- placements. Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those in the military services may vote if they appear in person at the polls. Ineligible to vote are em- ployees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike that began more than 12 months before the date of the election di- rected herein and who have been permanently replaced. Those eligible shall vote whether they desire to be repre- sented for collective bargaining by United Steelworkers International Union. To ensure that all eligible voters have the opportunity to be informed of the issues in the exercise of their statu- tory right to vote, all parties to the election should have access to a list of voters and their addresses that may be used to communicate with them. Excelsior Underwear, Inc., 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is directed that an eligibility list containing the full names and addresses of all the eligible voters must be filed by the Respondent with the Regional Director within 7 days from the date of the Notice of Third Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The Regional Director shall make the list available to all parties to the election. No extension of time to file the list shall be granted by the Regional Director except in extraordinary circum- stances. Failure to comply with this requirement shall be grounds for setting aside the election if proper objections are filed. Dated, Washington, D.C. June 17, 2019 ______________________________________ Lauren McFerran, Member ______________________________________ Marvin E. Kaplan, Member ________________________________________ William J. Emanuel Member (SEAL) NATIONAL LABOR RELATIONS BOARD