UPS Supply Chain Solutions, Inc.

373 NLRB No. 12 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. UPS Supply Chain Solutions, Inc. and International Brotherhood of Teamsters, Local 439. Case 32– CA–309933 January 3, 2024 ORDER GRANTING MOTION BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX On August 4, 2023, the National Labor Relations Board issued a Decision and Order in this proceeding,1 finding that the Respondent violated Section 8(a)(5) of the Act by failing and refusing to recognize and bargain with the Un- ion as exclusive collective-bargaining representative of the employees in the appropriate unit since August 25, 2022. The Order also severed for future consideration the General Counsel’s request that the Board adopt a compen- satory remedy requiring the Respondent to make employ- ees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act. The Respond- ent filed a motion for reconsideration, and the Union filed a brief in opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In our underlying decision, we found that the Respond- ent’s failure to bargain began on August 25, 2022, the date that the Respondent first affirmatively refused the Union’s first postelection request to bargain. In its motion for re- consideration, the Respondent argues that, pursuant to Howard Plating Industries, Inc., 230 NLRB 178, 179 (1977), a precertification refusal to bargain only violates the Act with respect to unilateral changes, not a refusal to begin contract negotiations while objections to the elec- tion were pending. Accordingly, the Respondent con- tends, its August 25, 2022 refusal to bargain could not have violated the Act. Additionally, the Respondent ar- gues that the Board’s decision to sever and retain jurisdic- tion of the remedial question created a disputed issue of material fact that made summary judgment inappropriate. The General Counsel did not file an opposition or state- ment of position. The Union filed an opposition, however, asserting that, pursuant to Mike O’Connor Chevrolet Buick-GMC Co., 209 NLRB 701 (1974), enfd. denied on 1 372 NLRB No. 121. 2 Mike O’Connor Chevrolet, supra, which holds that an employer acts at its peril in making unilateral changes following a union’s election vic- tory, is therefore inapposite. See San Miguel Hospital Corp., 357 NLRB 326, 327 (2011) (explaining that, the “unfair labor practices found in this case involve unilateral changes in terms and conditions of employment [following the election but before certification], not a simple refusal to initiate plenary bargaining,” which “the Board has never found unlaw- ful”), enfd. 697 F.3d 1181 (D.C. Cir. 2012). Chairman McFerran and Member Wilcox note that, in the underlying decision, the Board severed and retained for future consideration the other grounds 512 F.2d 684 (8th Cir. 1975), an employer’s duty to bargain begins at the time the election is con- ducted, and any subsequent changes are made at the em- ployer’s peril. We find merit in the Respondent’s motion because its initial refusal to bargain occurred after the election was conducted but before the certification of representative is- sued on December 6, 2022. See Howard Plating Indus- tries, Inc., 230 NLRB at 179.2 We therefore issue an amended order below, substituting December 6, 2022, for August 25, 2022, as the initial date of the Respondent’s refusal to bargain. Further, we find no merit to the Re- spondent’s argument that severing the question of a com- pensatory remedy rendered summary judgment inappro- priate. See Longmont United Hospital v. NLRB, 70 F.4th 573, 581–582 (D.C. Cir. 2023). For these reasons, the Re- spondent’s motion is granted in part and denied in part. Accordingly, we shall amend the Conclusion of Law and modify the Order consistent with our actions herein. AMENDED CONCLUSION OF LAW By failing and refusing, since December 6, 2022, to rec- ognize and bargain with the Union as the exclusive collec- tive-bargaining representative of the employees in the ap- propriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders that the Re- spondent UPS Supply Chain Solutions, Inc., Tracy, Cali- fornia, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Brotherhood of Teamsters, Local 439 (the Union) as the exclusive collective-bargaining representa- tive of the employees in the bargaining unit. (b) 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) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and General Counsel’s request that the Board adopt a compensatory remedy requiring the Respondent to make its employees whole for the lost op- portunity to bargain at the time and in a manner contemplated by the Act. In granting the Respondent’s motion here to amend the Order consistent with Howard Plating, supra, they take no position on the severed issue and do not otherwise address any future compensatory remedies that the Board may consider. In the underlying decision, Member Kaplan dis- sented from his colleagues’ decision to sever this issue and would have applied Ex-Cell-O Corp., 185 NLRB 107 (1970), to deny the General Counsel’s request for a make-whole remedy. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time Warehouse Workers II, Warehouse Workers III, Senior Warehouse Workers, Ops Admin Assistants II, Ops Admin Assistants III, and Inventory Control Associates II employed by the Em- ployer at its facilities located at 5849 W. Schulte Rd., Suite 107, Tracy, CA 95377 and 1150 E. Arbor Avenue, Suite 101, Tracy, CA 95304; excluding all other em- ployees, temporary employees, confidential employees, guards, and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facilities in Tracy, California, copies of the attached no- tice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 32, after be- ing signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive 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 facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since December 6, 2022. (c) Within 21 days after service by the Region, file with the Regional Director for Region 32 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. January 3, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan Member 3 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notices must be posted within 14 days after the facilities reo- pen and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of em- ployees have returned to work. If, while closed or not staffed by a sub- stantial complement of employees due to the pandemic, the Respondent _____________________________________ Gwynne A. Wilcox, Member (SEAL) 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 ac- tivities. WE WILL NOT fail and refuse to recognize and bargain with International Brotherhood of Teamsters, Local 439 (the Union) as the exclusive collective-bargaining repre- sentative of our employees in the bargaining unit. 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, on request, bargain with the Union and put in writing and sign any agreement reached on terms and con- ditions of employment for our employees in the following appropriate bargaining unit: All full-time and regular part-time Warehouse Workers II, Warehouse Workers III, Senior Warehouse Workers, Ops Admin Assistants II, Ops Admin Assistants III, and Inventory Control Associates II employed by us at our facilities located at 5849 W. Schulte Rd., Suite 107, Tracy, CA 95377 and 1150 E. Arbor Avenue, Suite 101, Tracy, CA 95304; excluding all other employees, tem- porary employees, confidential employees, guards, and supervisors as defined by the Act. UPS SUPPLY CHAIN SOLUTIONS, INC. is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electron- ically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Ap- peals Enforcing an Order of the National Labor Relations Board.” UPS SUPPLY CHAIN SOLUTIONS, INC. 3 The Board’s decision can be found at www.nlrb.gov/case/32-CA-309933 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.