Novelis Corp., 03-CA-121293

• Court: National Labor Relations Board
• Citation: 364 NLRB No. 101
• Docket Number: 03-CA-126738,03-CA-121579,and 03-RC-120447,03-CA-127024,03-CA-123346,03-CA-122766,03-CA-123526,03-CA-121293
• Parties: Novelis Corporation and United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers, International Union, AFL-CIO. Novelis Corporation, and United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers, International Union, AFL-CIO. January 30, 2015
• Decision Date: 26 August 2016

364 NLRB No. 101

Novelis Corporation and United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers, International Union, AFL-CIO. Novelis Corporation, and United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers, International Union, AFL-CIO. January 30, 2015

Nos. 03-CA-121293, 03-CA-121579, 03-CA-122766, 03-CA-123346, 03-CA-123526, 03-CA-127024, 03-CA-126738, and 03-RC-120447

United States of America, National Labor Relations Board

August 26, 2016

Hirozawa and McFerran Members.

DECISION AND ORDER

Mark Gaston Pearce, Chairman

On January 30, 2015, Administrative Law Judge Michael A. Rosas issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Intervenors filed exceptions and a memorandum of law in support.^[1] The General Counsel filed separate answering briefs in response to the Respondent's and the Inter-venors' exceptions, and the Charging Party filed single answering brief to both sets of exceptions. Thereafter, the Respondent filed separate reply briefs to the answering briefs. The Respondent also filed motions to reopen the record, the General Counsel filed oppositions to each of the Respondent's motions, and the Respondent filed reply briefs to the General Counsel's opposition briefs.

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^[2] and briefs and has decided to affirm the judge's rulings, ^[3] findings, ^[4] and conclusions, as modified here, and to adopt the recommended Order as modified and set forth in full below.^[5]

I. BACKGROUND

The complaint alleges that the Respondent committed numerous and widespread unfair labor practices during the Union's 2013-2014 campaign to organize the Respondent's employees at its aluminum products manufacturing plant in Oswego, New York. The campaign began after the Respondent announced on December 16, 2013, that it would implement changes that would effectively reduce employees' compensation. Specifically, the Respondent stated that, beginning January 1, 2014, ^[6] employees would no longer receive Sunday premium pay, and that holidays and vacation days would no longer be used in calculating overtime eligibility (hereinafter referred to as “unscheduled overtime pay”). In response, employee Everett Abare discussed the Respondent's announced changes with coworkers and then met with James Ridgeway, the Union local's president, to discuss seeking union representation.

Between December 17, 2013, and January 5, Abare and the rest of an organizing committee of about 25 employees obtained 351 signed union authorization cards from the almost 600 coworkers who would comprise the prospective unit. On January 9, upon reaching a card majority showing of support, the Union submitted a demand for voluntary recognition to the Respondent. The Respondent declined recognition, and the Union immediately filed a petition for a Board representation election. On the same date, the Respondent announced that it was restoring Sunday premium pay and unscheduled overtime pay. The election was held on February 20 and 21, resulting in a tally of 273 votes for the Union, and 287 against it, with 10 challenged ballots The Union filed objections to the election that have been consolidated for consideration with the unfair labor practice allegations in this proceeding.

On March 29, Abare posted a comment on Facebook that was critical both of his pay and of those employees who voted against the Union. On April 4, the Respondent demoted Abare on the grounds that his posting violated its social media policy.

II. JUDGE'S FINDINGS

The judge found that the Respondent engaged in numerous and pervasive violations of Section 8(a)(1) of the Act during the preelection period. Specifically, he found that the Respondent restored Sunday premium pay and unscheduled overtime pay to discourage employees from supporting the Union, ^[7] threatened employees with plant closure if they voted for union representation, ^[8] threatened that it would lose business if they selected the Union as their bargaining representative, threatened employees with job loss, a reduction in wages, and more onerous working conditions, disparaged the Union, ^[9] maintained an overly broad work rule that interfered with employees' use of the Respondent's email system for Section 7 purposes, selectively and disparately enforced the Respondent's posting and distribution rules, ^[10] prohibited employees from wearing union insignia on their uniforms while permitting employees to wear antiunion and other insignia, interrogated employees about union activities, ^[11] solicited employees' complaints and grievances and promised employees improved terms and conditions of employment if they did not select the Union, and maintained and gave effect to an overly broad unlawful social media policy. He also found that the Respondent violated Section 8(a)(3) by its postelection demotion of Abare.^[12]

Based on these unfair labor practices and the parallel election objections, the judge concluded that the results of the election must be set aside. The judge further concluded that the Board's traditional remedies could not alone erase the coercive effects of the Respondent's unlawful conduct, and that a Gissel^[13] remedial bargaining order was therefore necessary. The Respondent and the Intervenors except to the issuance of a bargaining order. In addition to disputing the judge's unfair labor practice findings, they contend that whatever violations occurred can adequately be remedied through traditional means. They also dispute the judge's finding that the Union had majority support on January 9 and assert that the General Counsel failed to show that any unfair labor practices actually caused a decline in employee support for the Union. Finally, the Respondent contends that employee and management turnover and the passage of time have substantially dissipated the adverse effects of any unlawful conduct.

III. ANALYSIS

For reasons previously stated here and in the judge's decision, we affirm his numerous unfair labor practice findings. As discussed below, we find no merit in the Respondent's and the Intervenors' arguments that a Gis-sel bargaining order is not necessary to remedy the lingering effects of that unlawful conduct.

As a preliminary matter, we briefly address the argument that the judge erred in finding that the General Counsel properly authenticated, and entered into the record, signed authorization cards from 351 of 599 unit employees. The Respondent contends that many cards were improperly procured on the basis of misrepresentations. It argues that dozens of employees testified that they were told that signing an authorization card would entitle the signer to receive information about the Union, would be used only to get an election, or would not count as a vote for the Union. We find no merit in the Respondent's contention.

It is well-settled Board law that a card that unambiguously states on its face that it is for the purpose of authorizing the union to represent employees in collective bargaining is presumed valid.^[14] Here, the language on the Union's card explicitly and unambiguously indicated that its purpose was to authorize “representation” in “collective bargaining” and to be “used to secure union recognition and collective bargaining rights.” In order to invalidate an unambiguous card, it must be clear that the signers were told to disregard completely the clear language on the card, which, as found by the judge, did not occur in this case. Although a few solicitors indicated that the card would be used to get more information or get an election, they did not direct the signer to disregard the language on the card. To the contrary, the evidence shows that card solicitors consistently directed employees to read the cards. They asked employees to provide the detailed information requested by the card and to sign it, and told employees that they could have their card returned if they changed their minds.

Further, we find that the Respondent's assertion that the judge erred in finding unwitnessed cards authenticated is unavailing. It is well settled that the Board “will … accept as authentic any authorization cards which were returned by the signatory to the person soliciting them even though the solicitor did not witness the actual act of signing.” McEwen Mfg. Co., 172 NLRB 990, 992 (1968). In addition, we find without merit the Respondent's contention that several of the union authorization cards were not authenticated at trial because the signatures were verified by the judge rather than the actual signer. As the judge found, the Board has long held, consistent with Section 901(b)(3) of the Federal Rules of Evidence, that a judge or a handwriting expert may determine the genuineness of signatures on authorization cards by comparing them to W-4 forms in the employer's records. See Traction Wholesale Center Co., 328 NLRB 1058, 1059 (1999), enfd. 216 F.3d 92 (D.C. Cir. 2000); Justak Bros. and Co., 253 NLRB 1054, 1079 (1981), enfd. 664 F.2d 1074 (7th Cir. 1981). Here the judge properly authenticated cards by comparing the signatures on them to those in the Respondent's records.

We find, therefore, in agreement with the judge, that the General Counsel proved the Union had achieved majority status by January 9, when it demanded recognition. With this prerequisite to recognition having been established, we next consider the propriety of a bargaining order.

In Gissel, the Supreme Court identified two categories of employer misconduct that warrant imposition of a bargaining order. Category I cases are “exceptional” and “marked by ‘outrageous' and ‘pervasive' unfair labor practices.” 395 U.S. at 613. Category II cases are...