KAG West, LLC

National Labor Relations Board - Board Decisions

Jun 16, 2015

362 NLRB No. 121 (N.L.R.B. 2015)

362 NLRB No. 121
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.
KAG-West, LLC and Miscellaneous Warehousemen
Drivers and Helpers, Local 986, International
Brotherhood of Teamsters. Cases 21–CA–
039488 and 21–CA–039665
June 16, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On September 28, 2012, the Board issued a Decision
and Order in this proceeding, which is reported at 358
NLRB No. 161. The Respondent filed a petition for re-
view 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. The court of appeals
then vacated the Board’s Decision and Order and re-
manded 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
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale it
sets forth for the reasons explained below. Accordingly,
we affirm 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 re-
ported at 358 NLRB No. 161, which we incorporate here
by reference. The Order, as further modified herein, is
set forth in full below.1

1 There are no exceptions to the judge’s dismissal of the impression-
of-surveillance allegation.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
I. BACKGROUND
The Respondent, which transports bulk petroleum
products, maintains facilities in California, Washington,
Oregon, Nevada, and Arizona. Until the events at issue
here, none of the Respondent’s approximately 7200 em-
ployees were represented by a union.
The Respondent does not grant regular periodic across-
the-board wage increases. In 2005, during an economic
boom when the Respondent had difficulty retaining driv-
ers, the Respondent implemented a wage increase of
about $3 per hour. In December 2009, faced with an
economic downturn, the Respondent reduced wages by
about $1.90 per hour for most employees. At that time,
Doug Allen, the Respondent’s business unit leader, an-
nounced that “[n]o wage increases will be given in
2010.”
After the wage reduction, the employees at the Re-
spondent’s southern California terminals began to seek
union representation. In February 2010,2 the Respondent
learned that the Miscellaneous Warehousemen Drivers
and Helpers, Local 986, International Brotherhood of
Teamsters (the Union) was mounting an organizing drive
among the drivers.
On March 16, Bruce Blaise, the Respondent’s execu-
tive vice president, sent an email to Allen with the sub-
ject line “S. California Issues.” The email stated that
Blaise planned to fly to southern California the next
morning because the Respondent’s CEO “wants us to
make sure we are moving quickly on the situation” there.
Under “[p]oints to make,” the email stated: “Our full
intention is to keep moving forward and if by late sum-
mer we feel confident we have weathered the storm and
are on more solid footing, we plan to make positive ad-
justment in pay. . . .”3 The Respondent also began the

Consistent with our decision in Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB No. 10 (2014), we shall modify the judge’s
recommended Order to require the Respondent to reimburse the
discriminatees for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and to file a report with the Social Security
Administration allocating the backpay to the appropriate calendar quar-
ters. We shall also substitute a new notice to conform to the Order as
modified and in accordance with our decision in Durham School Ser-
vices, 360 NLRB No. 85 (2014).
2 All dates are in 2010 unless stated otherwise.
3 The email stated in full:
Dennis wants us to make sure we are moving quickly on the
situation in Southern California. I’m thinking about catching an
early flight in the morning and spending Wed, Thurs, and Friday
at Rialto. May stay or come back out the next weekend to contin-
ue. Your thoughts?
Points to make:
We lost 16 trucks worth of Chevron work last fall due to rate
cuts from competitors of 12%–20%.
We lost 1.5–2.0 million worth of Circle K business in January
due to rate cuts from competitors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
process of adjusting its pricing with customers in order to
cover the anticipated wage increase.
On July 2, the Union filed a petition to represent driv-
ers, mechanics, and polishers at the Respondent’s termi-
nals in southern California. An election was held on
August 13 and 16, which the Union won. No objections
were filed, and the Union was certified on August 25.
In a memo dated August 24, the Respondent an-
nounced and granted a system wide wage increase to all
of its unrepresented employees in northern and southern
California, Arizona, and Nevada. The wage increases
ranged from $1 to $2.07 an hour, depending on location
and driver classification. The parties stipulated that the
announcement was “posted, displayed, and/or otherwise
announced and disseminated at all of the Respondent’s
bargaining unit locations in Southern California . . . as
well as at all the non-union locations in Northern Cali-
fornia, Arizona, and Nevada.” The newly represented
southern California employees, however, were not men-
tioned in the announcement and did not receive a wage
increase.
II. THE JUDGE’S DECISION
The complaint alleges, and the judge found, that the
Respondent violated Section 8(a)(3) and (1) by discrimi-
natorily denying the August 2010 wage increases to the
represented employees. Applying Wright Line,4 the
judge found that the union activity of the southern Cali-
fornia drivers motivated the Respondent to withhold the
wage increases from those employees while granting the
increases to unrepresented employees. In doing so, the
judge emphasized the timing of the increase. He discred-
ited the testimony from the Respondent’s witnesses that
the Respondent’s abrupt change in plans—from stating
that there would be no increases in 2010 to stating that it
planned to make “positive adjustments” in pay—was due
to an improving economic situation. The judge also dis-

We trimmed our overhead cost of Sacramento to try to protect
driver pay.
We are working hard on adding new business and private
fleet conversions to keep revenue up and protect jobs and further
financial deterioration.
We have rolled PCT in to try gain additional savings.
In other words, we have encountered a big challenge in a very
difficult market (KAG West actually lost money last year) and we
have worked very hard to make some tough decisions to protect
our employees and our company. At this time it appears the
moves are paying off and the numbers are improving. Our full in-
tention is to keep moving forward and if by late summer we feel
confident we have weathered the storm and are on more solid
footing, we plan to make positive adjustments in pay, etc. The
key is everyone pulling together and making it happen. That’s
how we all win in the long run.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
credited, as “entirely self-serving and unconvincing,” the
Respondent’s witnesses’ testimony that the decision to
withhold the wage increases from the represented em-
ployees was based on advice of counsel.
The judge acknowledged that under Shell Oil Co., 77
NLRB 1306, 1310 (1948), an employer is not required to
provide represented employees with the same wages and
benefits as unrepresented employees, as long as the em-
ployer does not act with an unlawful motive. The judge
found Shell Oil inapplicable, however, because he con-
cluded that the Respondent did, in fact, act with an un-
lawful motive.
III. DISCUSSION
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(3) and (1) by discriminatorily with-
holding the wage increase from unit employees. To
begin, because the alleged violation turns on the Re-
spondent’s motive, we agree with the judge that Wright
Line is the appropriate analytical framework and that the
General Counsel carried his initial burden. Union activi-
ty and employer knowledge are undisputed, and the rec-
ord supports a finding of antiunion animus for the fol-
lowing reasons.
First, the timing of the Respondent’s actions strongly
supports a finding that the Respondent was motivated by
antiunion animus. See generally Masland Industries,
311 NLRB 184, 197 (1993) (“Timing alone may suggest
anti-union animus as a motivating factor in an employ-
er’s action.”) (quoting NLRB v. Rain-Ware, Inc., 732
F.2d 1349, 1354 (7th Cir. 1984)).5 In December 2009,
the Respondent reduced wages for economic reasons and
informed employees that there would be no wage in-
creases in 2010. In February 2010, the Respondent
learned that employees were organizing. The very next
month, the Respondent prepared to implement a wage
increase—an about-face from its December 2009 posi-
tion. The March 16 email stated that the Respondent
needed to begin “moving quickly on the situation in
southern California,” an obvious reference to the organ-
izing campaign. The email then referred to plans for a
“positive adjustment in pay” in late summer.6 In early

5 Accord: Schaeff, Inc., 321 NLRB 202, 217 (1996) (noting, among
other factors, that the discriminatees were terminated within days of
meeting with a workers’ rights organization and that timing alone may
suggest animus as a motivating factor; acknowledging the absence of
any “unlawful antiunion statements”), enfd. 113 F.3d 264 (D.C. Cir.
1997); Cell Agricultural Mfg. Co., 311 NLRB 1228, 1232 (1993) (rely-
ing on timing to find mass layoffs unlawful, despite the absence of
“unlawful conduct [or] expressions of animus” prior to the layoffs;
noting that timing alone may suggest animus as a motivating factor),
enfd. in relevant part 41 F.3d 989 (8th Cir. 1994).
6 The dissent notes that an employer “may lawfully inform employ-
ees” that it wants a chance “to right previous wrongs,” citing Noah’s
KAG-WEST, LLC 3
August, shortly before the election, the Respondent de-
cided to grant a wage increase to its unrepresented em-
ployees but to exclude the bargaining unit employees.
Thus, from March through August, when it granted the
wage increase, the Respondent’s decisionmaking with
respect to the increase was driven by the union cam-
paign. 7
Second, the Respondent disseminated its August 24
memo announcing the wage increase for unrepresented
employees at facilities where the unit employees worked,
but made no contemporaneous announcement to unit
employees that it intended to bargain over implementa-
tion of a wage increase for them. That silence, when
contrasted with the Respondent’s communication with its
unrepresented employees, further indicates that the Re-
spondent’s actions were motivated by animus toward the
unit employees for having selected the Union as their
bargaining representative. The difference in the Re-
spondent’s conduct before and after the election is tell-
ing: while the campaign was ongoing and the southern
California employees had not yet voted to unionize, the
Respondent took pains to communicate with them, even
sending a high-level executive to visit the facilities, meet
with the drivers, and offer reassurance that a wage in-
crease was possible that summer. After the employees
voted for the Union, the Respondent’s behavior changed:
it announced a wage increase for its other employees,
posted the announcement in the newly represented em-
ployees’ workplace, and said nothing to reassure those

New York Bagels, 324 NLRB 266, 267 (1997), and National
Micronetics, 277 NLRB 993 (1985). In those cases, the Board ad-
dressed whether employer statements to employees constituted unlaw-
ful promises of benefits. Even assuming those cases are relevant to this
case, in which the email was from one manager to another and the
question is one of motive, they are easily distinguishable. The Board
emphasized in both cases that the employer made only “generalized
expressions” asking for “another chance.” See Noah’s, 324 NLRB at
267 (employer made “no specific promise” about “any particular mat-
ter”); National Micronetics, 277 NLRB at 993 (employer’s statement
was “vague” and merely “indicated a general desire to make things
better”). Here, the email referred specifically to a pay increase.
In part because the email predated the actual wage increase by 5
months, our colleague also questions how it could be evidence of mo-
tive for withholding the increase. In our view, the connection is clear:
the email, prepared at a time when the Respondent was attempting to
stave off unionization, specifically contemplated granting an increase in
“late summer.” The Respondent then did exactly that—but excluded
those employees who had just voted to unionize.
7 The Respondent did not announce or implement the increase until
August 24, the day before the Union was certified. The judge rejected,
on credibility grounds, the Respondent’s argument that the delay was
based on advice of counsel to avoid the appearance of trying to influ-
ence the election. Contrary to the dissent, we find no basis in the rec-
ord to overturn the judge’s credibility determinations. See Standard
Dry Wall, supra.
employees that their own opportunity to receive an in-
crease would be the subject of bargaining.8
In sum, the circumstances as a whole support the
judge’s finding that the Respondent’s withholding of the
wage increase from unit employees was discriminatorily
motivated. The Respondent’s March 16 email shows
that, from the beginning, the decision to grant the pay
increase was linked to employee sentiment about the
Union. When the southern California employees made
their sentiments clear by voting to unionize, the Re-
spondent proceeded to treat them less favorably than
those who remained unrepresented. Because we find the
evidence sufficient to support an inference that the Re-
spondent’s decision was motivated by its opposition to
the unionization effort, we conclude that the General
Counsel met his initial burden under Wright Line.9
We also agree with the judge, for the reasons stated in
his decision, that the Respondent did not meet its rebuttal
burden under Wright Line to prove that the wage increase
would have been withheld from unit employees notwith-
standing their union activity. In doing so, we observe
that the judge discredited the Respondent’s witnesses’
testimony regarding their reasons both for implementing
the wage increase for unrepresented employees and for
withholding it from unit employees.10 Other than dis-
credited testimony, the Respondent has put forth no evi-
dence to rebut the inference of discriminatory motive.
Accordingly, we affirm the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) by discrimina-
torily withholding the wage increase from employees
because they selected the Union as their bargaining rep-
resentative.

8 The dissent finds the absence of reassurance understandable, not-
ing that the parties’ relationship was “barely established” and the union
was not certified until August 25, the day after the wage increase was
announced. But the election took place on August 13 and 16, and no
objections were filed. The Respondent would have known by August
24 that the Board’s certification of the Union was imminent.
9 In finding unlawful motive, we find it unnecessary to rely on the
Respondent’s draft letter (quoted in the judge’s recitation of facts) in
which the Respondent described itself as “historically . . . a union-free
environment.”
10 The judge also relied on Aluminum Casting & Engineering Co.,
328 NLRB 8, 16 (1999), enfd. in relevant part and remanded 230 F.3d
286 (7th Cir. 2000). The Respondent correctly observes that Aluminum
Casting is factually distinguishable: there, the employer had a regular
practice of granting wage increases, but withheld the wage increase that
it would otherwise have implemented during the union organizing
campaign and expressly cast the blame for its decision on the union.
Nevertheless, the underlying principle of Aluminum Casting—that
employers may not punish employees for selecting union representation
by denying them planned increases—is applicable here. Thus, the with-
holding of granted increases from represented employees for discrimi-
natory reasons is unlawful. Shell Oil, supra. See generally Sun
Transport, Inc., 340 NLRB 70 (2003); Empire Pacific Industries, 257
NLRB 1425 (1981); B.F. Goodrich Co., 195 NLRB 914 (1972).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The National Labor Relations Board orders that the
Respondent, KAG-West, LLC, Los Angeles, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withholding a wage increase from employees be-
cause they selected the Union to be their collective-
bargaining representative.
(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) Make the employees whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them in the manner set forth in the remedy
section of the judge’s decision.
(b) Compensate employees for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar
quarters for each employee.
(c) 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 back pay due under
the terms of this Order.
(c) Within 14 days after service by the Region, post at
all its facilities in California, Arizona, and Nevada, cop-
ies of the attached notice marked “Appendix.”11 Copies
of the notice, on forms provided by the Regional Director
for Region 21, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the

11 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.”
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 24,
2010.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 21 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.
Dated, Washington, D.C. June 16, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting.
My colleagues adopt the judge's finding that the Re-
spondent violated Section 8(a)(3) and (1) by discrimina-
torily withholding a wage increase from unit employees
that was granted to nonrepresented employees.1 Because
I find, contrary to my colleagues, that the Acting General
Counsel failed to meet his initial burden for the violation,
I would dismiss the complaint.
It is well established that employers may treat repre-
sented and nonrepresented employees differently when
implementing new benefits, so long as the disparate
treatment is not unlawfully motivated. See Shell Oil Co.,
77 NLRB 1306 (1948); accord: Sun Transport, Inc., 340
NLRB 70, 72 (2003); Empire Pacific Industries, 257
NLRB 1425, 1426 (1981). To determine whether an
adverse action was, in fact, motivated by unlawful intent,
the Board applies the causation test set forth in Wright

1 On July 2, 2010, the Union, Miscellaneous Warehousemen Drivers
and Helpers, Local 986, International Brotherhood of Teamsters, filed
its petition to represent drivers, mechanics, and polishers at the Re-
spondent’s terminals in southern California. The election was held on
August 13 and 16, the Union’s victory in the election was acknowl-
edged on August 17, and the Union was certified on August 25. The
Respondent announced the wage increase at issue on August 24. All
dates are in 2010 unless otherwise indicated.
KAG-WEST, LLC 5
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). The three
elements of that test are: (1) employee engagement in
protected activity, (2) employer knowledge of that pro-
tected activity, and (3) employer animus toward the pro-
tected activity. Here, it is clear that the Acting General
Counsel has met his burden with regard to the first two
factors. Where my colleagues and I part ways, however,
is with regard to the third factor.
My colleagues’ finding of antiunion animus hangs on
the timing of the Respondent’s August 24 wage increase
announcement. In support of their position that the tim-
ing of this announcement evinces antiunion animus, the
majority notes that in December 2009, the Respondent
reduced wages for economic reasons and announced that
there would be no wage increase in 2010. They further
note that, in March, contemporaneous with the union
campaign among the southern California employees, the
Respondent prepared to implement a wage increase in
late summer. Indeed, a March 16 email between two of
the Respondent’s managers reflected this, and, on August
24, the Respondent announced its wage increase for its
unrepresented employees to all its employees.
With that background in place, my colleagues cite
Board precedent that “[t]iming alone may suggest anti-
union animus as a motivating factor in an employer’s
action.” Masland Industries, 311 NLRB 184, 197 (1993)
(quoting NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354
(7th Cir. 1984)). What my colleagues fail to consider,
however, is that in Rain-Ware, and all the cases cited
therein, the respondents engaged in other unlawful con-
duct that supported antiunion animus as suggested by
timing.2 Further, although the Board may infer animus

2 See also Bally’s Atlantic City, 355 NLRB 1319, 1321 (2010)
(“The judge also found that the General Counsel established the requi-
site union animus through the timing of Justiniano’s discharge and the
[r]espondent’s two violations of Section 8(a)(1), both of which were
directed at Justiniano.”), enfd. 646 F.3d 929 (D.C. Cir. 2011). Similar-
ly, in two additional cases cited by my colleagues—Schaeff, Inc., 321
NLRB 202 (1996) and Cell Agricultural Mfg. Co., 311 NLRB 1228
(1993), enfd. in relevant part 41 F.3d 989 (8th Cir. 1994)—the Board
did not find animus based on timing alone. In Schaeff, the Board relied
on several factors, including the abruptness of the discriminatees’ dis-
charges as well as the fact that “all three employees [who had met with
the union organizer] were terminated, a factor which, of itself, tends to
‘give rise to an inference of violative discrimination.’” Schaeff, 321
NLRB at 217 (quoting NLRB v. First National Bank of Pueblo, 623
F.2d 686, 692 (10th Cir. 1980)). In Cell Agricultural, the Board found
that the respondent committed a “hallmark” violation by a “precipitate,
unlawful mass layoff of the entire bargaining unit,” which occurred just
two days after the initial meeting between employees and the union.
The judge's finding of animus, which the Board did not expressly ad-
dress, was not based solely on timing; the judge relied on the additional
facts that “[t]he circumstances of the mass layoff differed from those of
prior layoffs” and that each employee was required to undergo an indi-
from timing, it need not invariably do so. The Board has
recognized that the timing of an action in relation to a
representation election may amount to a coincidence that,
“at best, raises a suspicion. However, ‘mere suspicion
cannot substitute for proof’ of unlawful motivation.”
Frierson Building Supply Co., 328 NLRB 1023, 1024
(1999) (citing Lasell Junior College, 230 NLRB 1076
(1977)).
Here, there is no evidence that the Respondent en-
gaged in independent acts of coercive conduct. In my
view, absent any supporting evidence of animus, the tim-
ing alone is not sufficient to satisfy the General Coun-
sel’s burden of proof. See generally St. John’s Commu-
nity Services—New Jersey, 355 NLRB 414, 417 (2010)
(Member Schaumber, dissenting) (timing alone is not
sufficient to establish antiunion animus under Rain-
Ware).
Further, my colleagues err in focusing on select
phrases contained in a March 16 email between two
managers. Certainly, it is true that the email vaguely
referenced “the situation in southern California” and re-
flected that the Respondent was considering making
“positive adjustments in pay.” But my colleagues fail to
consider these phrases in the context of the entire email,
which listed specific losses sustained by the Respond-
ent's business as well as the Respondent’s efforts to
counter these by cost-saving endeavors and business ex-
pansion. The email then stated:
[W]e have encountered a big challenge in a very diffi-
cult market (KAG West actually lost money last year)
and we have worked very hard to make some tough de-
cisions to protect our employees and our company. At
this time it appears the moves are paying off and the
numbers are improving. Our full intention is to keep
moving forward and if by late summer we feel confi-
dent we have weathered the storm and are on more sol-
id footing, we plan to make positive adjustments in
pay, etc. The key is everyone pulling together and
making it happen. That's how we all win in the long
run.
In my view, the timing of this March email was as much
driven by the Respondent’s improved economic circum-
stances—and prediction of improvements to come—as by
the union campaign.3 In particular, I note that the email

vidual interview, at which they were “told to be satisfied with
[r]espondent’s employment terms,” as “a condition precedent to being
rehired.” Cell Agricultural, 311 NLRB at 1232.
3 The discussion set forth in the subject email seems to amount to a
generalized intention that the Respondent will work to correct ways in
which its employees had been negatively affected by its prior actions.
Although not directly analogous, I note that the Board has recognized
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
suggests that any future pay adjustments, and other changes,
are conditioned on the continued improvement of its eco-
nomic situation. Accordingly, even if one assumes that the
“situation in southern California” is a reference to the union
campaign, the overall context of the email does not establish
that the Respondent's eventual granting of a pay adjustment
to its unrepresented employees approximately 5 months
later was driven by antiunion animus.4
Indeed, even if this email could be interpreted solely as
the Respondent’s recognition of, and reflection upon, gener-
alized employee discontent in Southern California—
discontent that was fueling the union campaign—that still
does not make it evidence of animus against the Union. At
most, this email constitutes an implicit concession that the
Union had a point that Respondent’s wages were too low,
and that the Respondent might want to do something about
that in the future. Because the Respondent did something
about that months later, but only after the election was over,
and without bypassing the Union’s legal right to bargain for
union-represented employees, I cannot see how this is anti-
union animus. The Respondent’s email, even if it is consid-
ered wholly reactive to employee discontent, simply is the
reaction of a reality-based employer and nothing more. 5

that employers may lawfully inform employees that they wish to have
the opportunity to right previous wrongs. For example, in Noah's New
York Bagels, 324 NLRB 266, 267 (1997), the Board dismissed an
8(a)(1) violation based on an employer's statement, made the day be-
fore an election, that it had made mistakes and was asking for a "second
chance" to fix its mistakes. Accord: National Micronetics, 277 NLRB
993 (1985) (finding employer’s statements asking for a second chance
or for more time to improve conditions were neither unlawful under the
Act or objectionable promises of benefits).
4 My colleagues take issue with this position, finding the connection
“clear” where the email at issue was "prepared at a time when the Re-
spondent was attempting to stave off unionization." But this begs the
question. As I have explained, read in its entirety, the letter does not
support a finding that the Respondent was acting with such a motive. It
is therefore circular reasoning to find that the unlawful motivation
existed in the first place based on actions taken five months later that
do not appear to be unlawfully motivated.
5 My colleagues’ decision appears to rely in substantial part on the
credibility determinations of the judge, particularly in the judge's rejec-
tion of the Respondent's uncontroverted testimony that the decision to
withhold the wage increase until after the election, and, thereafter, to
withhold the increase from its represented employees so as not to run
afoul of Sec. 8(a)(5) and (1) of the Act, was based on the advice of
counsel rather than driven by antiunion animus. I find the judge's anal-
ysis of this evidence deeply concerning. Certainly, it seems reasonable
that a company's labor attorney would, in fact, counsel the company:
first, not to grant employees any unscheduled wage increase during the
critical period leading up to an election; and, second, not to grant any
unscheduled wage increase to any bargaining unit employees once they
have voted to be represented by a union. Indeed, that is what any good
labor attorney would do, since, in the first scenario, there are severe
legal risks with granting unscheduled or unplanned benefits, and, in the
second scenario, once the union becomes the relevant employees’ bar-
gaining representative, a unilateral wage increase is usually a violation
of law. It is not clear to me that the judge's rejection of the Respond-
Further, I do not find persuasive my colleagues' con-
clusion that the August 24 memo announcing the wage
increase in and of itself constitutes evidence of antiunion
animus. Specifically, my colleagues place significant
weight on the Respondent's failure to include in that
memo a “contemporaneous announcement to unit em-
ployees that it intended to bargain over implementation
of a wage increase for them.” What they fail to note,
however, is that the Union was not even certified until
August 25, the day after the Respondent made the wage
announcement. In my view, the Respondent's "silence"
in this regard was more an oversight at a time when the
Respondent's relationship with its newly represented
employees was barely established; to find antiunion ani-
mus based on a mere failure to express every one of Re-
spondent’s intentions, at this early stage, seems to me to
be a bridge too far.6
Simply put, the Acting General Counsel has failed to
meet his initial Wright Line burden in this matter to es-
tablish that the Respondent's decision to implement a
wage correction on August 24 for its non-represented
employees was motivated by antiunion animus. Accord-
ingly, I would dismiss the complaint.
Dated, Washington, D.C. June 16, 2015
______________________________________
Harry I. Johnson, III, Member

ent's testimony on this point was based on any express demeanor-based
credibility determinations. Rather, the judge's findings seem to turn on
some kind of contempt for the fact that Manager Blaise, “sounding like
a broken record, repeatedly invoked the advice of counsel defense.”
However, being asked the same question should repeatedly give rise to
the same answer, assuming that the witness is truthful.
Unfortunately, my colleagues’ reliance on this type of “credibility
determination” essentially strikes down the entire advice-of-counsel
defense. It also underscores the no-win situation into which their ulti-
mate ruling places the Respondent and any other employer faced with
general employee discontent giving rise to a union campaign. The
employer’s consultation of counsel in doing its best to determine a
lawful course of action should not be held against it. To this point, I
echo Member Miscimarra’s view of the Act. Arc Bridges, 362 NLRB
No. 56 (2014), slip op. at 6–7 (Miscimarra, dissenting) (“I do not be-
lieve the Act can reasonably be interpreted to find a party in violation
of the Act regardless of what it does.”), on remand from 662 F.3d 1235
(D.C. Cir. 2011).
6 The saying hearkens to the well-intentioned but ultimately failed
1944 attempt by the western Allied armies to knock Germany out of
World War II early by seizing three consecutive bridges by a daring,
simultaneous paratroop assault to then use them as the corridor for a
lightning armored offensive over the Rhine. Despite heroic sacrifices,
while the first two bridges were captured, the third bridge at Arnhem
could not be held until relief came. See, e.g., Cornelius Ryan, A Bridge
Too Far (Simon & Schuster, 1995 ed.)
KAG-WEST, LLC 7
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 withhold wage increases from our em-
ployees because they selected the Miscellaneous Ware-
housemen Drivers and Helpers, Local 986, International
Brotherhood of Teamsters, or any other labor organiza-
tion as their collective-bargaining representative.
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 make our employees whole for any loss of
earnings and other benefits, plus interest compounded
daily.
WE WILL compensate our employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.
KAG-WEST LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21–CA–039488 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.