shakeout_EFile

National Labor Relations Board - Administrative Judge Opinions

Mar 28, 2020

14-CA-258413 (N.L.R.B. Mar. 28, 2020)

JD-71-16
Saint Louis, MO
JD-71-16
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
shakeout_EFile
and 14-CA-258413
Counsel:
ABBY E. SCHNEIDER, Esq. (NLRB Region 14)
of 1222 SPRUCE ST, RM 8.302, SAINT LOUIS, MO 63103-2829, for the General Counsel
()
of , for the Respondent
()
of , for the Charging Party
Decision
DAVID GOLDMAN, Administrative Law Judge.
STATEMENT OF THE CASE
On March 26, 2020, filed an unfair labor practice charge against shakeout_EFile,
docketed by Region 14 of the Board as case 14-CA-258413.
A trial was conducted in this matter on , in , . Counsel for the General Counsel, and the
Respondent filed post trial briefs in support of their position by [DATE].
On the entire record, I made the following findings, conclusion of law, and
recommendations.
JURISDICTION
[cite jurisdictional facts]
At all material times, shakeout_EFile has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and the Union has been a labor
organization within the meaning of Section 2(5) of the Act. Based on the foregoing, I find that
this dispute affects commerce and that the Board has jurisdiction of this case, pursuant to
Section 10(a) of the Act.
JD-71-16
UNFAIR LABOR PRACTICES
CONCLUSIONS OF LAW
1. The Respondent shakeout_EFile is an employer within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act
representing:
[unit description]
REMEDY
Having found that the Respondent shakeout_EFile has engaged in certain unfair labor
practices, I find that it must be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
The Respondent, having unlawfully discharged [name of employee], must offer [him/her]
reinstatement to [his/her] former job or if that job no longer exists, to a substantially equivalent
position without prejudice to [his/her] seniority or any other rights or privileges previously
enjoyed. The Respondent shall make [name of employee] whole for any loss of earnings and
other benefits suffered as a result of the discrimination against [him/her].
The Respondent, having unlawfully changed the terms and condition of employment,
shall rescind the change(s) that was/were unilaterally implemented on [date], and make all
affected employees whole for any loss of earnings and other benefits suffered as a result of the
unilateral changes.
[to be used where violation does not involve cessation of employment or possibility of offsets for
interim earnings (examples: unlawfully reduced wages, reduced or discontinued benefits,
reduced hours, etc.)].
The make-whole remedy shall be computed in accordance with Ogle Protective Service,
183 682 (1970), enf’d. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New
Horizons, 283 NLRB 1173 (1987), and compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). In accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014), the Respondent shall compensate any employees adversely
affected by the unlawfully changed policies for the adverse tax consequences, if any, of
receiving lump sum backpay awards, and in accordance with AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016), the Respondent shall, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, file with the Regional Director for Region [Insert
Region #] a report allocating backpay to the appropriate calendar year for each employee. The
Regional Director will then assume responsibility for transmission of the report to the Social
Security Administration at the appropriate time and in the appropriate manner.
The Respondent shall also be required to remove from its files any references to the
[unlawful suspensions, discharges, etc.] of [Employee(s) Name(s)] and to notify [him/her/ them]
in writing that this has been done and that the [suspensions, discharges, etc.] will not be used
against [him/her/them] in any way.
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[Because the Respondent has a proclivity for violating the Act (see, e.g., [case
citations]), and because of the serious nature of the violations or Because of the Respondent’s
[egregious] [widespread] misconduct, demonstrating a general disregard for the employees’
fundamental rights], I find it necessary to issue a broad Order requiring the Respondent to
cease and desist from infringing in any other manner on rights guaranteed employees by
Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted in the Employer's facility or wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. 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 customarily communicates with its employees by such means. 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 [date of first unfair labor practice]
When the notice is issued to the Employer, it shall sign it or otherwise notify Region [#] of the
Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
ORDER
The Respondent, shakeout_EFile, Saint Louis, MO, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
Coercively interrogating employees about their [union membership, union activities,
sympathies, and/or support] [protected concerted activities].
[Issuing disciplinary warnings to / suspending / laying off] employees because of their
support for and activities on behalf of the Union.
Discharging or otherwise discriminating against employees for supporting [name of
union or the Union] or any other labor organization.
Failing and refusing to recognize and bargain with [name of union or the Union] as the
exclusive collective-bargaining representative of the employees in the bargaining unit.
In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
In any like or related manner restraining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
JD-71-16
In any other manner interfering with, restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
In any other manner restraining 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.
Within 14 days from the date of this Order, offer [name] full reinstatement to [his/her]
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice
to [his/her] seniority or any other rights or privileges previously enjoyed.
Make [name(s)] whole for any loss of earnings and other benefits suffered as a result of
the discrimination against [him/her/them], in the manner set forth in the remedy section of this
decision.
Compensate [Name(s)] [affected employees] for the adverse tax consequences, if any,
of receiving [a] lump-sum backpay award(s), and file with the Regional Director for Region
[Insert Region #] within 21 days of the date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award(s) to the appropriate calendar year for
each employee.
Within 14 days from the date of this Order, remove from its files any reference to the
unlawful [discharge(s) / layoff(s) / suspension(s) / warning(s), etc.], and within 3 days thereafter,
notify the employee(s) in writing that this has been done and that the [discharge(s) / layoff(s) /
suspension(s) / warning(s), etc.] will not be used against [him/her/them] in any way.
Rescind the [ ] rule(s).
or
Rescind the rule(s) in its employee handbook that prohibit(s) [ ].
Furnish employees with [inserts] [an insert] for the current employee handbook that (1)
advise(s) that the unlawful provision(s) [have/has] been rescinded, or (2) provide(s) [a] lawfully
worded provision(s) on adhesive backing that will cover the unlawful provision(s); or publish and
distribute to employees revised employee handbooks that (1) do not contain the unlawful
provision(s), or (2) provide [a] lawfully worded provision(s).
On request, bargain with the Union as the exclusive collective-bargaining representative
of the employees in the following appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the understanding in a signed
agreement:
[unit description]
Before implementing any changes in wages, hours, or other terms and conditions of
employment of unit employees, notify and, on request, bargain with the Union as the exclusive
collective-bargaining representative of employees in the following bargaining unit:
[unit description]
Rescind the change(s) in the terms and conditions of employment for its unit employees
that was/were unilaterally implemented on [date].
JD-71-16
Rescind the change(s) in the terms and conditions of employment for its unit employees
that was/were unilaterally implemented on [date], and make [[name(s)] whole for any loss of
earnings and other benefits suffered as a result of the unilateral changes, in the manner set
forth in the remedy section of this decision.
If requested by the Union, rescind the change(s) in the terms and conditions of
employment for its unit employees that was/were unilaterally implemented on [date].
Furnish to the Union in a timely manner the information requested by the Union on
[date].
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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
Within 14 days after service by the Region, post at its [City & State where ULP occurred]
facility copies of the attached notice marked “Appendix.” Copies of the notice, on forms
provided by the Regional Director for Region __, 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. 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 customarily 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 covered by any other material. If 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 [date first ULP occurred].
Within 14 days after service by the Region, post at its [City & State where ULP occurred]
facility copies of the attached notice marked “Appendix.” Copies of the notice, on forms
provided by the Regional Director for Region __, 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 [members or
employees and members ] are customarily 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 customarily communicates with
its members 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.
Within 14 days after service by the Region, deliver to the Regional Director for Region
__ signed copies of the notice in sufficient number for posting by the Employer at its [City, State]
facility, if it wishes, in all places where notices to employees are customarily posted.
Within 21 days after service by the Region, file with the Regional Director for Region __
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.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
IT IS FURTHER ORDERED Case ¬¬¬___ is severed and remanded to the Regional
Director for Region __ for the purpose of conducting a second election as directed below.
JD-71-16
Dated, Washington, D.C. March 28, 2020

___________________________________
DAVID GOLDMAN
U.S. Administrative Law Judge
NOTICE TO EMPLOYEES
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 benefit and protection
Choose not to engage in any of these protected activities.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT coercively question you about your [union membership, activities,
sympathies, and/or support] [protected concerted activities].
WE WILL NOT threaten you that selecting a union representative would be futile.
WE WILL NOT place you under surveillance while you engage in union or other
protected concerted activities.
WE WILL NOT change your terms and conditions of employment without first notifying
the Union and giving it an opportunity to bargain.
WE WILL NOT refuse to bargain collectively with [name of union or the Union] by failing
and refusing to furnish it with requested information that is relevant and necessary to the
Union’s performance of its functions as the collective-bargaining representative of our unit
employees.
or
co,
JD-71-16
WE WILL NOT refuse to bargain collectively with the Union by [name of union or the
Union] unreasonably delaying in furnishing it with requested information that is relevant and
necessary to the Union’s performance of its functions as the collective-bargaining representative
of our unit employees.
WE WILL rescind the unlawful [ ] rule(s). [Or] WE WILL rescind the rule(s)
in our employee handbook that unlawfully prohibit(s) you from [ ].
Or
WE WILL furnish you with [inserts] [an insert] for the current employee handbook that
(1) advise(s) that the unlawful provision(s) [have/has] been rescinded, or (2) provide(s) [a]
lawfully worded provision(s) on adhesive backing that will cover the unlawful provision(s); or WE
WILL publish and distribute revised employee handbooks that (1) do not contain the unlawful
provision(s), or (2) provide [a] lawfully worded provision(s).
WE WILL furnish to the Union in a timely manner the information requested by the
Union on [date].

(Employer)
Dated _____________________ By _____________________________________________
The National Labor Relations Board is an independent Federal agency created in 1935
to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov
1222 SPRUCE ST, RM 8.302, SAINT LOUIS, MO 63103-2829
, Hours of Operation: XXX a.m. to XX p.m
The Administrative Law Judge’s decision can be found at {CASE_URL_LABEL} 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 SE, Washington, DC 20570-0001, or by calling (202) 273–1940.
JD-71-16
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER,
.