In re Ohio River Valley Envtl. Coal., 09-CA-274743

CourtNational Labor Relations Board
Writing for the CourtPAUL BOGAS U.S. ADMINISTRATIVE LAW JUDGE
PartiesOHIO RIVER VALLEY ENVIRONMENTAL COALITION, INC. and BRENDAN MUCKIAN-BATES, AN INDIVIDUAL and DUSTIN WHITE, AN INDIVIDUAL and INDUSTRIAL WORKERS OF THE WORLD
Decision Date11 March 2022
Docket Number09-CA-274743,09-CA-279024,09-CA-284186,09-CA-277976,09-CA-277909

OHIO RIVER VALLEY ENVIRONMENTAL COALITION, INC. and BRENDAN MUCKIAN-BATES, AN INDIVIDUAL and DUSTIN WHITE, AN INDIVIDUAL and INDUSTRIAL WORKERS OF THE WORLD

Nos. 09-CA-274743, 09-CA-277976, 09-CA-277909, 09-CA-279024, 09-CA-284186

United States of America, National Labor Relations Board

March 11, 2022


Linda B. Finch, Esq.,

for the General Counsel.

Sarah A. Walling, Esq.,

(Jenkins Fenstermaker, PLLC)

Huntington, West Virginia, for the Respondent.

Will Bloom, Esq.,

Chicago, Illinois,

For the Charging Parties

DECISION

PAUL BOGAS U.S. ADMINISTRATIVE LAW JUDGE

Statement of the Case

I heard this case remotely using videoconferencing technology on December 13, 2021. Brendan Muckian-Bates, an individual, filed the charge in case 09-CA-274743 on March 17, 2021, and the charge in case 09-CA-277976 on May 29, 2021. Dustin White, an individual, filed the charge in case 09-CA-277909 on May 28, 2021. The Industrial Workers of the World (Union) filed the charge in case 09-CA-279024 on June 24, 2021, and the charge in case 09-CA-284186 on October 7, 2021. The Director of Region Nine of the National Labor

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Relations Board (Board or NLRB) issued the initial complaint and notice of hearing on June 28, 2021, the first consolidated complaint on August 10, 2021, the second consolidated complaint on October 7, 2021, and the third consolidated complaint on November 17, 2021. The third consolidated complaint alleges that Ohio River Valley Environmental Coalition, Inc. (the Respondent or OVEC), violated Section 8(a)(1) of the National Labor Relations Act (NLRA or Act): on March 4, 2021, by coercively interrogating employees about their union activities and impliedly threatening employees with unspecified reprisals for their union activities; on March 11, 2021, by interrogating an employee about his protected union and concerted activities, and threatening the employee with discharge for his union activities; and on May 25, 2021, by implementing a grievance procedure and promising to remedy employees' grievances. The third consolidated complaint also alleges that the Respondent violated Section 8(a)(3) and (1) of the NLRA by taking the following actions because employees engaged in union activities and/or concerted activities: on March 11, 2021, when it suspended Muckian-Bates; on May 20, 2021, when it discharged White; on May 27, 2021, when it discharged Muckian-Bates; and on June 2 and July 2, 2021, when it issued written warnings to Alexander Cole.

The Respondent filed timely answers to the initial complaint, the consolidated complaint and the second consolidated complaint, in which it denied committing any violation of the Act. The third, and final, consolidated complaint was issued on November 17, 2021. Two days later, the Respondent laid off the remaining employees after the Respondent's board of directors voted to dissolve the Respondent. The Respondent's counsel informed the other parties and the Administrative Law Judge that it would not file an answer, or other pre-hearing response, to the third consolidated complaint (the complaint) and it did not, in fact, do so despite being duly served. The Respondent was notified about the December 13, 2021, hearing, but during a pre-hearing conference informed the other parties and the Administrative Law Judge that the Respondent would not participate at the hearing. No representative for the Respondent appeared at the hearing. Counsel for the Respondent did, however, submit a post-hearing brief, as did counsel for the General Counsel.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following Findings of Fact and Conclusions of Law.

Findings of Fact

I. Jurisdiction

The Respondent is a Section 501(c)(3) not-for-profit corporation with an office and place of business in Huntington, West Virginia, where it engages in advocacy and organizing for environmental causes. In conducting these operations the Respondent annually derives gross revenues in excess of $250, 000 and purchases and receives goods valued in excess of $7500 directly from points outside West Virginia. I find that the Respondent is an employer engaged in commerce within the meaning of Section

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2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. BACKGROUND FACTS

The Respondent is a non-profit corporation that engages in environmental activism through community organizing and participation in legal proceedings. During the relevant time frame, the Respondent had a staff of nine individuals: Vivian Stockman, executive director; Tonya Adkins, development director (later co-executive director); Matthew Spurlock, administrative director; Brendan Muckian-Bates, director of organizing; Robin Blakeman, project coordinator/community organizer; Alexander Cole, project coordinator/community organizer; Dustin White, project coordinator/community organizer; Sarah Carballo, communications co-director; and Daniella Parent, communications co-director. At some point after March 4, 2021, and prior to June 1, 2021, Matt Cochran replaced Spurlock as administrative director.

The executive director manages the Respondent's day-to-day operations. She reports to the organization's board of directors, which generally has between 7 and 10 members. A group of those members serve on the “personnel committee” of the board of directors. The member of the board of directors who figures most prominently in the facts underlying this case is Mike Forman, who also serves on the personnel committee. Three other members of the board of directors are mentioned regarding some of the underlying matters - Michael Sullivan (chair of the board of directors), Will Edwards and Gina Hart-Smith.

In late 2020, members of the Respondent's staff began discussing the possibility of obtaining union representation. This effort was motivated in large part by executive director Stockman's statements that she was contemplating retirement. Some staff members had been particularly pleased with Stockman's tenure as executive director and hoped that union representation could help the staff lock-in working conditions that existed under Stockman's leadership. Muckian-Bates was the first staff-member who contacted the Union about representing employees at the Respondent. He also initiated discussions with Cole and other staff members about unionizing, and created the links for videoconference meetings that staff members had with officials of the Union. Union organizing meetings were held on a weekly basis during this period. In early March 2021, some staff members signed cards authorizing the Union to serve as their collective bargaining representative. Muckian-Bates signed a card on March 2, and Cole, Parent, and White signed cards on March 4.

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B. RESPONDENT MEETS WITH EMPLOYEES REGARDING UNION

On March 2, the Respondent held, by videoconference, what began as a routine staff meeting. Participants included Stockman, Spurlock, Blakeman, Carballo, Cole, Muckian-Bates, Parent, and White. At some point, Spurlock interrupted the meeting and asked executive director Stockman to leave temporarily. After Stockman left, Spurlock told the remaining attendees that he was aware that a unionizing effort was underway and that he intended to inform the Respondent's administration about it. He stated, further, that he considered himself ineligible for membership and did not want to be contacted about the union efforts. The record does not show how Spurlock learned of the unionizing campaign. Neither Muckian-Bates nor White told Spurlock about it, and Spurlock had not attended any union meetings.

Two days later, on March 4, the Respondent's entire staff received an email message from Stockman directing them to attend a mandatory videoconference meeting later that day. The entire administration and staff were in attendance. Mike Forman, a member of the board of directors who was on its personnel committee, conducted the meeting and was the main speaker. Forman told the staff that “management and the board[ of directors] were aware of a desire to unionize, ” and that he was on a “fact-finding mission” and wanted to know “why” employees “believed [they] needed a union.” A number of the staff members responded. Carballo and Parent told Forman that they were motivated by a concern about wages, hours, and conditions. White mentioned concern over the possible retirement of Stockman. Parent and White both asked that the Respondent voluntarily recognize the Union.

During the March 4 meeting, Forman urged the employees to reject the unionization effort. He told employees that they “didn't know what [they]were doing” and that “some of the things [staff] liked about [the Respondent] could change, and that [the Respondent] wouldn't necessarily have to concede on some [employee] demands.” He stated that, with unionization, employees' “jobs would get a lot harder and everybody's working relationships would get a lot harder.” He told them that, for example, with a union present they would “have to clock in and out at specific times, ” which was different than the current system that was very flexible about schedules. Forman stated that he, himself, had been a long-time union member, but that the staff at the Respondent did not need a union because the employer was a small non-profit that worked as a “family” and already had a grievance procedure.

Forman also made some comments directed at Muckian-Bates. Specifically, Forman stated that Muckian-Bates had been hired as a manager and was “going to have a lot of explaining to do if he was involved in the organizing effort.” Others who spoke at the meeting included Spurlock, who stated that he was “not ashamed of telling about the union, ” and...

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