Novelis Corporation

National Labor Relations Board - Board Decisions

Dec 7, 2018

367 NLRB No. 47 (N.L.R.B. 2018)

367 NLRB No. 47
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.
Novelis Corporation and United Steel, Paper and
Forestry, Rubber Manufacturing, Energy, Al-
lied Industrial and Service, Workers, Interna-
tional Union, AFL–CIO.
Novelis Corporation and United Steel, Paper and
Forestry, Rubber Manufacturing, Energy, Al-
lied Industrial and Service Workers, Interna-
tional Union, AFL–CIO. Cases 03–CA–121293,
03–CA–121579, 03–CA–122766, 03–CA–123346,
03–CA–123526, 03–CA–126738, 03–CA–127024,
and 03–RC–120447
December 7, 2018
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
This case is on remand from the United States Court of
Appeals for the Second Circuit. On August 26, 2016, the
National Labor Relations Board issued a Decision and
Order in the above-entitled proceeding,1 finding that the
Respondent violated Section 8(a)(5), (3), and (1) of the
National Labor Relations Act. The Respondent’s viola-
tions, which were committed during a union organizing
campaign, included (1) restoring Sunday premium pay
and unscheduled overtime pay; (2) threatening employ-
ees that, if they selected the Union, (a) the Respondent
would lose business, (b) employees would lose jobs, (c)
wages would be reduced, and (d) more onerous working
conditions would be imposed; (3) selectively and dispar-
ately enforcing the Respondent’s posting and distribution
rules; (4) prohibiting employees from wearing union
insignia on their uniforms while permitting employees to
wear antiunion and other insignia; (5) removing union
literature from a mixed use area; (6) interrogating em-
ployees; (7) threatening employees by telling them that
they did not have to work for the Respondent if they
were unhappy with their terms and conditions of em-
ployment; (8) impliedly threatening an employee with
layoff if employees selected the Union; (9) soliciting
employees’ complaints and grievances and promising
employees improved terms and conditions of employ-
ment if they did not select the Union; (10) misrepresent-
ing that the Union was seeking to have the Respondent
rescind employees’ pay and/or benefits and blaming the
Union by telling employees that they would have to pay

1 364 NLRB No. 101 (2016).
back wages retroactively as a result of unfair labor prac-
tice charges filed by the Union; (11) demoting an em-
ployee because of his protected concerted and union ac-
tivities in posting comments on Facebook; (12) maintain-
ing and giving effect to an overly broad social media
policy; and (13) maintaining an overly broad email use
policy. Because of the severity of the unfair labor prac-
tices, the Board found that a bargaining order was appro-
priate under the test set forth in NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). In Case 03–RC–120447, the
Board set aside the results of an election held on Febru-
ary 20 and 21, 2014, and dismissed the election petition.
Subsequently, the Respondent petitioned the United
States Court of Appeals for the Second Circuit for review
of the Board’s Order, and the Board filed a cross-
application for enforcement. On February 9, 2018, the
Board petitioned the court to sever and remand the two
workplace rule violations involving the Respondent’s
email use rule and social media rule for further consider-
ation in light of the Board’s decision in The Boeing
Company, 365 NLRB No. 154 (2017). On March 15,
2018, the court issued its decision, in which it granted in
part and denied in part enforcement of the Board’s Order
and remanded the case “for further proceedings con-
sistent with [its] opinion.” Novelis Corp. v. NLRB, 885
F.3d 100, 111 (2nd Cir. 2018). Although the court en-
forced the Board’s Order with respect to all violations
save the two workplace rule violations that the Board had
asked the court to sever and remand, the court denied
enforcement of the Board's bargaining order. The court
held that the Board had failed to consider the impact of
changed circumstances subsequent to the Respondent’s
violations when determining whether a fair election was
possible, specifically noting that the Board had failed to
account for the mitigating effects of the Respondent’s
remedial actions, employee turnover, management turn-
over, and the passage of time since the unfair labor prac-
tices were committed. Id. at 109–111. As a result, the
court concluded that “it is inappropriate to impose union
membership without a reasoned finding, absent here, that
a new, fair election more than three years after the viola-
tions is not reasonably possible.” Id. at 111.
On June 22, 2018, the Board advised the parties that it
had decided to accept the court’s remand and invited the
parties to file statements of position. The General Coun-
sel, Charging Party, and Respondent filed statements.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2

2 Member Emanuel is recused and took no part in the consideration
of this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The Board has reviewed the entire record, including
the parties’ statements of position, in light of the court’s
decision, which we accept as the law of the case. Be-
cause that decision makes it perfectly clear that a Gissel
bargaining order is unenforceable here, we reject the
contention of the General Counsel and the Union that the
court’s decision affords us an opportunity to reconsider
the appropriateness of a Gissel order. Accordingly, we
delete the Gissel bargaining order previously issued.3
However, even though a Gissel remedy is no longer be-
ing imposed, we agree with the General Counsel that
special remedies are necessary in order to dissipate as
much as possible any lingering effects of the Respond-
ent’s unfair labor practices and to ensure that a fair elec-
tion can be held if the Union files a new petition. It is
well settled that the Board has broad discretion to impose
remedies that fit the circumstances of each case it con-
fronts, and it has ordered special remedies to address the
lingering effects of an employer’s unfair labor practices.
Comcast Cablevision of Philadelphia, 328 NLRB 487,
487–488 (1999). The Board has reasoned that such rem-
edies help to ensure a fair election where the union pre-
viously held majority support. Id. at 488.
Here, we find the following special remedies are es-
sential to ensuring that employees may freely exercise
their Section 7 rights. First, we shall order the Respond-
ent to supply the Union, on its request made within 1
year of this Supplemental Decision and Order, the
names, addresses, telephone numbers and e-mail ad-
dresses of its current unit employees. The Board has
found that requiring an employer to furnish the union
with the names and addresses of its current bargaining-
unit employees “will enable the [u]nion to contact all
employees outside the [workplace] and to present its
message in an atmosphere relatively free of restraint and
coercion.” Blockbuster Pavilion, 331 NLRB 1274, 1275
(2000) (internal quotations omitted).4
Second, we shall order the Respondent to grant the
Union and its representatives reasonable access to its
bulletin boards and all places where notices to employees

3 It is not necessary to reaffirm our prior Order in other respects be-
cause, as noted above, the court of appeals enforced it in all respects
except for the bargaining order provision and the two rules violations.
See Fluor Daniel, Inc., 350 NLRB 702, 702 fn. 5 (2007); Bryan Adair
Construction Co., 341 NLRB 247, 247 fn. 4 (2004).
Chairman Ring and Member Kaplan recognize that, under current
precedent, the Board does not consider changed circumstances in de-
termining the propriety of a Gissel bargaining order. However, they
would consider revisiting Board precedent in this regard in a future
appropriate proceeding.
4 This remedy is in addition to the Union’s right to have access to a
list of voters and their contact information under Excelsior Underwear,
156 NLRB 1236 (1966), in the event of a representation election.
are customarily posted, when the Union makes such a
request within 2 years from the date of this Supplemental
Decision and Order. The Board has held that the bulletin
board access remedy reassures employees that “they can
learn about the benefits of union representation, and can
enlist the aid of union representatives, if they desire to do
so, without fear of being subjected to severe unfair labor
practices.” Id. at 1276 (internal quotations omitted).
Because the Union has not requested the reinstatement
of the petition, we will not direct a second election at this
time. We believe that by granting the special remedies
set forth above, we will enable the Union to gain access
to and communicate with current unit employees should
it choose to do so. Having done so, the Union may then
reassess its standing with the unit and file a new petition,
if it so desires.5

5 To be clear, the only reason we are not reinstating the petition and
directing a second election is that the Union has not asked us to do so,
and there may be good reasons for its silence in this regard. Five years
have passed since December 2013, when the Union attained a card
majority. By August 2016, when the Board issued its decision, there
had been significant turnover in the unit, as the court found. Nearly
two-and-a-half years have passed since then. Under these circumstanc-
es, reinstating the petition and directing a second election will not ad-
vance the purposes of the Act, particularly given that the Board’s Rules
instruct the Regional Directors to schedule elections “for the earliest
date practicable.” Board Rules Sec. 102.67(b). If and when the Union
is ready to proceed to an election, it may file a petition for a new elec-
tion based on the usual 30 percent administrative showing.
Member McFerran would reinstate the petition and order a second
election. The petition was dismissed in the initial Board decision in
this case solely because the Gissel bargaining order mooted it; but the
Gissel order has now been deleted, and thus the petition should natural-
ly be reinstated so that a second election – which is a default remedy
for cases like this where unfair labor practices taint an election -- may
be conducted. See Research Fed. Credit Union, 327 NLRB 1051,
1051–1054 (1999) (following court remand, Board deleted Gissel rem-
edy, reinstated petition, and ordered second election, almost 9 years
after original election was conducted and where there was substantial
employee turnover); UARCO, Inc., 286 NLRB 55, 55 (1987) (where
“unfair labor practices do not warrant a bargaining order…. [but do]
warrant setting aside the election. . . we shall direct a second election”).
A failure to reinstate and resume processing the petition after a Gissel
order is removed leaves the question of representation that the Board is
statutorily bound to decide “unresolved.” J.L.M. Inc., 316 NLRB 238,
238 (1995) (reinstating petition and ordering new election after Gissel
order was deleted on remand, notwithstanding passage of around 5
years and turnover, and without requiring new showing of interest).
Further, if the Union does not want an election, Board procedures con-
template that a petitioner may affirmatively withdraw its petition after
the validity of the first election has been adjudicated and a second
election ordered. See Casehandling Manual (Part Two), Sec. 11116.4.
Given that a rerun election is routinely ordered in cases like this,
Member McFerran finds it unsurprising that the holding of such an
election is presumed both in the Second Circuit’s decision, see Novelis
Corp. v. NLRB, supra, 885 F.3d at 109, 111 (observing that “the Board
carries a heavy burden to justify a bargaining order in lieu of a second
election” and that here the evidence failed to show that “a new, fair
election more than three years after the violations is not reasonably
possible”) (emphases added), and in the special remedies proposed by
NOVELIS CORP. 3
We shall also remand to the administrative law judge
the two workplace rule violations involving the Re-
spondent’s email use and social media rules for further
proceedings consistent with the Board’s decision in Boe-
ing, including reopening the record if necessary.
ORDER
The National Labor Relations Board orders that para-
graphs 1(j), 1(o), and 2(b)-(e) be deleted from the
Board’s Decision and Order reported at 364 NLRB No.
101 (2016).
IT IS FURTHER ORDERED that the complaint allegations
that the Respondent violated Section 8(a)(1) of the Act
by maintaining social media and email use policies are
remanded to the administrative law judge for further pro-
ceedings consistent with the Board’s decision in The
Boeing Company, 365 NLRB No. 154 (2017), including
reopening the record if necessary.
IT IS FURTHER ORDERED that the Respondent, Novelis
Corporation, Oswego, New York, its officers, agents,
successors, and assigns, shall take the following affirma-
tive action necessary to effectuate the policies of the Act:
(a) On request made within 1 year of the date of this
Supplemental Decision and Order, furnish the Union
with the full names, addresses, telephone numbers and e-
mail addresses of its current unit employees.
(b) Immediately on request, for a period of 2 years
from the date of this Supplemental Decision and Order,
grant the Union and its representatives reasonable access
to the Respondent’s bulletin boards and all places where
notices are customarily posted in its Oswego, New York
facility.
(c) Within 14 days after service by the Region, post at
its Oswego, New York facility copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 3,
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 an internet site,
and/or other electronic means, if the Respondent custom-

the General Counsel and joined by the Union (which suggest that the
special remedies for the Union will be in connection with a new elec-
tion). Under these circumstances, she would not infer that the Union
has waived the presumptive remedy of a second election simply by
failing to explicitly request it.
6 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.”
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.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 3 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.
Dated, Washington, D.C. December 7, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, 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
violated 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 supply the Union, on request made within 1
year of the date of the Board’s Supplemental Decision
and Order, the full names, addresses, telephone numbers,
and email addresses of our current employees in the fol-
lowing appropriate bargaining unit:
All full-time and regular part-time employees em-
ployed by the Employer at its Oswego, New York fa-
cility, including the classifications of Cold Mill Opera-
tor, Finishing Operator, Recycling Operator, Remelt
Operator, Crane Technician, Mechanical Technician,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Welding Technician, Remelt Operations Assistant, Hot
Mill Operator, Electrical Technician, Process Techni-
cian, Mobile Equipment Technician, Roll Shop Tech-
nician, Production Process & Quality Technician, Pro-
duction Process & Quality Specialist, EHS Facilitator,
Planner, Shipping Receiving & Packing Specialist,
Stores Technician, Maintenance Technician, Machinist,
Facility Technician, and Storeroom Agent, excluding
Office clerical employees and guards, professional em-
ployees, and supervisors as defined in the Act, and all
other employees.
WE WILL, immediately on the Union’s request, for a
period of 2 years from the date of the Board’s Supple-
mental Decision and Order, grant the Union and its rep-
resentatives reasonable access to our bulletin boards and
all places where notices to employees are customarily
posted at our facility in Oswego, New York.
NOVELIS CORPORATION
The Board’s decision can be found at
www.nlrb.gov/case/03-CA-121293 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.