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

CourtNational Labor Relations Board
Citation371 NLRB NO. 135
Docket Number09-CA-274743,09-CA-277976,09-CA-277909,09-CA-279024,09-CA-284186
PartiesOhio River Valley Environmental Coalition, Inc. and Brendan Muckian-Bates and Dustin White and OVEC Union affiliated with the Industrial Workers of the World.
Decision Date31 August 2022

371 NLRB NO. 135

Ohio River Valley Environmental Coalition, Inc. and Brendan Muckian-Bates and Dustin White and OVEC Union affiliated with the Industrial Workers of the World.[1]

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

United States of America, National Labor Relations Board

August 31, 2022


DECISION AND ORDER

On March 11, 2022, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,[2] and conclusions;[3] to amend the remedy;[4] and to adopt the recommended Order as modified and set forth in full below.[5]

Amended Conclusions of Law

Substitute the following for Conclusion of Law 3:

"3. The Respondent violated Section 8(a)(1) of the Act on March 4, 2021, and March 11, 2021, by coercively interrogating employees about their union activities and/or protected concerted activities; on March 4, 2021, by threatening employees with unspecified reprisals for their union activities; and on March 11, 2021, by threatening to discharge an employee because of his union activity."

ORDER

The National Labor Relations Board orders that the Respondent, Ohio River Valley Environmental Coalition, Inc., Huntington, West Virginia, its officers, agents, successors, and assigns, shall

1. Cease and desist from

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(a) Threatening employees with unspecified reprisals if they engage in activities on behalf of OVEC Union affiliated with the Industrial Workers of the World (the Union).

(b) Threatening employees with discharge if they engage in activities on behalf of the Union.

(c) Coercively interrogating employees about their union activities and/or protected concerted activities.

(d) Discharging, suspending, disciplining, or otherwise discriminating against employees for supporting the Union or any other labor organization, or for engaging in protected concerted activities.

(e) 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.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this order, offer Brendan Muckian-Bates and Dustin White full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. If the Respondent's facility is closed and the Respondent subsequently resumes the same or similar business operations, the Respondent shall offer Muckian-Bates and White full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed.

(b) Make Brendan Muckian-Bates and Dustin White whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge's decision.

(c) Compensate Brendan Muckian-Bates and Dustin White for the adverse tax consequences, if any, of receiving lump-sum backpay awards and file with the Regional Director for Region 9, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee.

(d) File with the Regional Director for Region 9, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient's corresponding W-2 forms reflecting the backpay award.

(e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspension and discharge of Brendan Muckian-Bates, the unlawful discharge of Dustin White, and the unlawful warnings to Alexander Cole, and within 3 days thereafter, notify the employees in writing that this has been done and that the warnings, suspension, and discharges will not be used against them in any way.

(f) 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.

(g) Post at its Huntington, West Virginia facility copies of the attached notice marked "Appendix."[6] Copies of the notice, on forms provided by the Regional Director for Region 9, 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 March 4, 2021.

(h) Within 21 days after service by the Region, file with the Regional Director for Region 9 a sworn certification of a responsible official on a form provided by the

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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.

Marvin Kaplan, Member, Gwynne A. Wilcox, Member, David M. Prouty, Member

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 benefit and protection

Choose not to engage in any of these protected activities.

We will not threaten you with unspecified reprisals for engaging in activities on behalf of OVEC Union affiliated with the Industrial Workers of the World (the Union).

We will not threaten you with discharge for engaging in activities on behalf of the Union.

We will not coercively question you about your union activities and/or protected concerted activities.

We will not discharge, suspend, discipline, or otherwise discriminate against any of you because of your activities in support of the Union or any other labor organization, or for engaging in protected concerted activities.

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 within 14 days from the date of the Board's Order, offer Brendan Muckian-Bates and Dustin White reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. If our facility is closed and we subsequently resume the same or similar business operations, we will offer Muckian-Bates and White full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed.

We will make Brendan Muckian-Bates and Dustin White whole for any loss of earnings and other benefits resulting from their discharges and suspension, less any net interim earnings, plus interest, and we will also make such employees whole for reasonable search-for-work and interim employment expenses, plus interest.

We will compensate Brendan Muckian-Bates and Dustin White for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and we will file with the Regional Director for Region 9, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee.

We will file the Regional Director for Region 9, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Brendan Muckian-Bates' and Dustin White's corresponding W-2 forms reflecting the backpay award.

We will, within 14 days from the date of the Board's Order, remove from our files any reference to the unlawful suspension and discharge of Brendan Muckian-Bates, the unlawful discharge of Dustin White, and the unlawful warnings to Alexander Cole, and we will, within 3 days thereafter, notify each of them in writing that this has been done and that the warnings, suspension, and discharges will not be used against them in any way.

The Administrative Law Judge's decision can be found at www.nlrb.gov/case/09-CA-274743 or by using the QR code below. Alternatively, you can...

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