One Call Locators, Ltd., d/b/a ELM Locating & Utility Services

National Labor Relations Board - Board Decisions

Jun 19, 2013

28-CA-088321 (N.L.R.B. Jun. 19, 2013)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ONE CALL LOCATORS, LTD. d/b/a
ELM LOCATING & UTILITY SERVICES
and Cases 28-CA-088321
28-CA-092274
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 387, AFL-CIO
and 28-CA-096540
JOHN L. CRIST
DECISION AND ORDER
Statement of the Cases
On May 23, 2013, One Call Locators, Ltd. d/b/a ELM Locating & Utility Services
(the Respondent), International Brotherhood of Electrical Workers, Local 387, AFL-CIO
(the Union), John L. Crist (the Charging Party), and the Acting General Counsel of the
National Labor Relations Board entered into a Formal Settlement Stipulation, subject to
the Board’s approval, providing for the entry of a consent order by the Board and a
consent judgment by any appropriate United States Court of Appeals.1 The parties
waived all further and other proceedings before the Board to which they may be entitled
under the National Labor Relations Act, as amended, and the Board’s Rules and
Regulations, and the Respondent waived its right to contest the entry of a consent
judgment or to receive further notice of the application therefor.
The Formal Settlement Stipulation is approved and made a part of the record,
and the proceeding is transferred to and continued before the Board in Washington,
D.C., for the entry of a Decision and Order pursuant to the provisions of the Formal
Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following:
Findings of Fact
1. The Respondent’s business

1 The Formal Settlement Stipulation was approved on May 23, 2013 by administrative
law judge Gregory Z. Meyerson.
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The Respondent is an Illinois limited partnership with an office and place of
business in Phoenix, Arizona (the Respondent’s facility), where it is engaged in the
business of providing contractor services locating and marking underground utility lines.
In conducting its business operations at the Respondent’s facility during the one-
year period ending August 29, 2012, the Respondent purchased and received goods
valued in excess of $50,000 directly from outside the State of Arizona.
The Respondent is now, and has been at all material times, an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National
Labor Relations Act.
2. The labor organization involved
International Brotherhood of Electrical Workers, Local 387, AFL-CIO is a labor
organization within the meaning of Section 2(5) of the Act.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board orders that the Respondent, One Call
Locators, Ltd. d/b/a ELM Locating & Utility Services, Phoenix, Arizona, its officers,
agents, successors, and assigns shall
1. Cease and desist from
(a) Interrogating its employees about their Union activities and the Union activities
of other employees.
(b) Threatening its employees with unspecified reprisals if they engage in Union
and concerted activities.
(c) Creating an impression among its employees that their Union and concerted
activities are under surveillance by the Respondent.
(d) Soliciting complaints and grievances from its employees and promising to
remedy them if employees refrain from supporting the Union.
(e) Promising employees increased benefits and improved terms and conditions of
employment if they refrain from supporting the Union.
(f) Maintaining the following rule in its Conduct Guidelines handbook:
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Personal Misconduct
* * *
10. Engaging in conduct at any time and place that could reflect
negatively on the company or customer or impair the company’s or
customer’s reputation.
(g) Discriminatorily installing GPS systems in work vehicles in retaliation for
employees’ concerted and Union activities.
(h) Issuing discriminatory discipline to its employees because they engage in
concerted activities and/or Union activities.
(i) Discharging its employees in order to discourage membership in, support for,
or activities on behalf of, the Union, or any other labor organization.
(j) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self organization, to form labor
organizations, to join or assist the Union or any other labor organization, to
bargain collectively through representatives of their own choosing and to
engage in other concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Notify employees in writing that it has rescinded the personal misconduct rule
contained in its Conduct Guidelines handbook.
(b) Within 14 days of the Board’s Order, remove from its files any reference to
the discharges of Raul Hernandez, Roy Hammock, Evan DeMain, Adam
Griego, and John L. Crist, and the written discipline issued to Crist, and within
3 days thereafter, notify those employees, in writing, that this was done and
that the discharges and discipline will not be used against them in any way.
(c) Make whole the following employees for any loss of pay they may have
suffered by reason of the alleged discrimination against them, by payment to
them of the amounts set forth opposite their respective names, and
compensate each of them for any adverse income tax consequences of
receiving their backpay in one lump sum. The Respondent will make
appropriate withholdings on backpay. No withholdings should be made from
the interest and excess tax portions of the totals. The Respondent will file a
report with the Social Security Administration allocating backpay to the
appropriate calendar quarters. In addition, each of the following employees
will receive $1,000 in front pay:
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NAME BACKPAY INTEREST EXCESS TAX TOTAL
Raul Hernandez $20,217.60 $300.00 $ 68.00 $20,585.60
Roy Hammock $ 7,681.60 $158.40 $ 36.00 $ 7,876.00
Evan DeMain $16,197.60 $194.40 $ 45.60 $16,437.60
Adam Griego $ 9,334.40 $ 73.60 $131.20 $ 9,539.20
John L. Crist $14,671.20 $183.20 $ 41.60 $14,896.00
Hernandez, Hammock, DeMain, Griego, and Crist have waived reinstatement.
(d) Within 14 days of service by the Region, post at its facilities in the Phoenix,
Arizona metropolitan area (including those in Mesa and Deer Valley, Arizona),
copies of the attached notice marked “Appendix A.” Copies of the notice, on
forms provided by Region 28, after being 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. The Respondent will take
reasonable steps to ensure that the notices are not altered, defaced or
covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the
facility 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 employed by the Respondent at any time since February
29, 2012.
(e) In addition to physical posting of paper notices, the Respondent shall
distribute the notice electronically by posting on the Respondent’s intranet
site. The electronic posting shall remain posted for 60 consecutive days from
the date it was originally posted. The Respondent will e-mail the Region’s
Compliance Officer at Miguel.Rodriguez@nlrb.gov with a copy of the
electronic posting on the same day as the posting.
(f) This stipulation is subject to the approval of the Board and, immediately upon
the approval by the Board, it will be retroactively effective to the date of
execution of the stipulation.
(g) Within 21 days after service by the Region, file with the Regional Director for
Region 28 a sworn certification of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has taken to comply.
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Dated, Washington, D.C., June 19, 2013.

___________________________________
Mark Gaston Pearce, Chairman
___________________________________
Richard F. Griffin, Jr., Member
___________________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER AND A
CONSENT JUDGMENT OF ANY APPROPRIATE UNITED STATES COURT OF
APPEALS
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose a representative to bargain with employers on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights. More
particularly:
YOU HAVE THE RIGHT to join with your fellow employees in concerted activities.
These activities include providing testimony in connection with a co-worker's legal claim,
discussing with each other, and complaining to us, about your workloads, lack staffing
levels, safety equipment, and other terms and conditions of employment. YOU HAVE
THE RIGHT to support or engage in activities on behalf of the International Brotherhood
of Electrical Workers, Local 387, AFL-CIO (the Union), and you have the right to refrain
from engaging in such activities. WE WILL NOT do anything to interfere with these
rights.
WE WILL NOT maintain the following rule in our Conduct Guidelines handbook:
Personal Misconduct
* * *
10. Engaging in conduct at any time and place that could reflect
negatively on the company or customer or impair the company’s or
customer’s reputation.
WE WILL NOT interrogate you about your Union activities and the Union activities of
other employees.
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WE WILL NOT threaten you with unspecified reprisals if you engage in Union and
concerted activities.
WE WILL NOT create an impression that we are spying on your Union and concerted
activities.
WE WILL NOT solicit complaints and grievances from you and promise to remedy them
in order to restrain your support for the Union.
WE WILL NOT promise you increased benefits and improved terms and conditions of
employment if you refrain from supporting the Union.
WE WILL NOT install GPS in work vehicles in retaliation for your Union and concerted
activities.
WE WILL NOT fire you or issue you discipline because you engaged in Union or
concerted activities, or because of your Union support or membership.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the personal misconduct rule in our Conduct Guidelines handbook,
and WE WILL advise you, in writing, that this has been done and that such language is
no longer in effect.
WE HAVE offered reinstatement to Raul Hernandez (Hernandez), Roy Hammock
(Hammock), Evan DeMain (DeMain), Adam Griego (Griego), and John L. Crist (Crist),
to their former jobs, and they have declined such reinstatement, and we have made
them whole for any loss of earnings and other benefits, with interest.
WE WILL remove from our files any reference to the discharges of Hernandez,
Hammock, DeMain, Griego, and Crist, as well as the discipline issued to Crist, and
WE WILL notify them in writing that their discharges and/or discipline will not be used
against them in any way.
___________________________
(Employer)
Dated:__________________By:__________________________________________
(Representative) (Title)