Cadillac of Naperville, Inc. v. NLRB ( 2021 )

ORIGINAL
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
CADILLAC OF NAPERVILLE, INC.,
Petitioner/Cross-Respondent
v. : Nos. 19-1150
19-1167
NATIONAL LABOR RELATIONS BOARD
Respondent/Cross-Petitioner
JUDGMENT
Before: MILLETT, PILLARD, and KATSAS, Circuit Judges.
THIS CAUSE came to be heard upon a petition filed by Cadillac of
Naperville, Inc. to review an Order of the National Labor Relations Board dated
June 12, 2019, in Case No. 13-CA- 207245, reported at 368 NLRB No. 3, and
upon a cross-application for enforcement filed by the National Labor Relations
Board to enforce said Order. The Court heard argument of the parties and has
considered the briefs and agency record filed in this cause. On September 17,
2021, the Court, being fully advised in the premises, handed down its opinion
remanding to the Board for further consideration the unlawful discharge claim but
in all other respects granting the Board’s cross-application for enforcement. In
conformity therewith, it is hereby
ORDERED AND ADJUDGED by the Court that Cadillac of Naperville,
Inc., its officers, agents, successors, and assigns) e said order as
modified by the Court. (See Attached Order and A
Judg Court of Apea1s
for the District of Columbia Circuit
Judge, & ed States Court of Appeals
for the District of Columbia Circuit
ENTERED:
CADILLAC OF NAPERVILLE, INC.
V.
NATIONAL LABOR RELATIONS BOARD
ORDER
Cadillac of Naperville, Inc., Naperville, Illinois, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees that their terms and conditions of employment
would not be the same if they went on strike.
(b) Telling permanently replaced employees that Cadillac of Naperville, Inc.
does not want them to return to work and that if they return to work it
would not be long before they were gone.
(c) Telling recalled striking employees that they would not be employed by
Cadillac of Naperville, Inc. very long and should find another job because
they engaged in strike or other union activities.
(d) Telling recalled striking employees that, if Cadillac ofNaperville, Inc. ran
out of work, it would lay them off first because they engaged in strike or
other union activities.
(e) Telling employees that it would more strictly enforce company rules
because of employees’ union activities or support.
(f) Telling employees that it would be futile to file grievances.
(g) Telling employees that it would eat the kidneys of employees because of
their union activities or support.
(h) Enacting attendance policies and removing free work gloves and drinking
water because employees engage in strike or other union activity, without
first notifying the Union and giving it an opportunity to bargain over such
changes.
(1) Prohibiting union representatives’ access to unit employees without first
notifying the Union and giving it an opportunity to bargain over such
changes.
a) Unilaterally changing the terms and conditions of employment of unit
employees by implementing an attendance policy and charging
employees for the cost of work gloves and drinking water.
(k) Failing or refusing to immediately reinstate economic strikers upon their
unconditional offer to return to work without a legitimate and substantial
business justification.
(1) 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) Notify all employees that written attendance policies issued on and after
September 18, 2017, and policies issued on or after September 25, 2017,
charging employees for the cost of work gloves and drinking water have
been rescinded.
(b) Before implementing any changes to policies regarding attendance, work
gloves, drinking water or other terms and conditions of employment,
notify and, on request, bargain with the Union as the exclusive collective-
bargaining representative of employees in the following bargaining unit:
All of Journeyman Technicians, Body Shop Technicians, apprentices,
lube rack technicians, part time express technicians and semi-skilled
technicians.
(c) Make each striker whole for any loss of earnings and other benefits
suffered as a result of Cadillac of Naperville, Inc.’s unlawful failure to
reinstate them upon their unconditional offer to return to work, in the
manner set forth in the amended remedy section of the Board’s June 12,
2019 Decision and Order.
(d) 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.
(e) Within 14 days after service by the Region, post at its facility in
Naperville, Illinois, copies of the attached notice marked “Appendix.”
Copies of the notice, on forms provided by the Regional Director for
Region 13, after being signed by Cadillac of Naperville, Inc.’s authorized
representative, shall be posted by Cadillac of Naperville, Inc. and
maintained for 60 consecutive days in conspicuous places including all
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places where notices to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if Cadillac of Naperville, Inc. customarily
communicates with its employees by such means. Reasonable steps shall
be taken by Cadillac of Naperville, Inc. to ensure that the notices are not
altered, defaced, or covered by any other material. If Cadillac of
Naperville, Inc. has gone out of business or closed the facility involved in
these proceedings, Cadillac of Naperville, Inc. shall duplicate and mail, at
its own expense, a copy of the notice to all current employees and former
employees employed by Cadillac of Naperville, Inc. at any time since
June 29, 2017.
(f) Within 21 days after service by the Region, file with the Regional
Director for Region 13 a sworn certification of a responsible official on
a form provided by the Region attesting to the steps that Cadillac of
Naperville, Inc. has taken to comply.
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APPENDIX
NOTICE To EMPLOYEES
POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN 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 that your terms and conditions of employment will
change if you go on strike.
WE WILL NOT tell you, if you go on strike and subsequently return to work, that we
do not want you to return to work and that, if you do return to work, it would not be
long before you were gone.
WE WILL NOT tell you that you will not be employed by us very long and should
find another job if you engage in strike or other union activities.
WE WILL NOT tell you that, if we run out of work, we will lay you off first because
you engage in strike or other union activities.
WE WILL NOT tell you that we will more strictly enforce company rules because of
your union activities or support.
WE WILL NOT tell you that it would be futile for you to file grievances.
WE WILL NOT tell you that we will eat your kidneys because of your union activities
or support.
WE WILL NOT prohibit union representatives’ access to you without first notifying
the Union and giving it an opportunity to bargain over such a change.
WE WILL NOT enact attendance policies and charge you for work gloves and
drinking water because you engage in strike or other union activity without first
notifying the Union and giving it an opportunity to bargain over such changes.
WE WILL NOT fail and refuse to immediately reinstate economic strikers upon their
unconditional offer to return to work without a legitimate and substantial business
justification.
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 rescind written attendance policies issued on and after September 18,
2017, and policies issued on or after September 25, 2017, charging employees for
the cost of work gloves and drinking water.
WE WILL, before implementing any changes to policies regarding attendance, work
gloves, drinking water or other terms and conditions of employment, notify and, on
request, bargain with the Union as the exclusive collective-bargaining representative
of employees in the following bargaining unit:
All of Journeyman Technicians, Body Shop Technicians, apprentices, lube rack
technicians, part time express technicians and semi-skilled technicians.
WE WILL make whole with interest such employees as would have been reinstated
sooner but for our unlawful refusal to reinstate them as soon as possible after
September 18, 2017, for wages and benefits lost on account of our failure to reinstate
them to their positions as soon as possible after September 18, 2017.
CADILLAC OF NAPERVILLE, INC.
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UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
CADILLAC OF NAPERVILLE, INC.,
Petitioner/Cross-Respondent
v. : Nos. 19-1150
19-1167
NATIONAL LABOR RELATIONS BOARD
Respondent/Cross-Petitioner
CERTIFICATE OF SERVICE
I hereby certify that on September 23, 2021, I electronically filed the
foregoing document with the Clerk of the Court for the United States Court of
Appeals for the District of Columbia Circuit using the appellate CM/ECF system.
I further certify that the foregoing document was served on all parties or their
counsel of record through the appellate CM/ECF system.
/s/Ruth E. Burdick
Ruth E. Burdick
Deputy Associate General Counsel
National Labor Relations Board
1015 Half St., S.E.
Washington, D.C. 20570
Dated at Washington, D.C.
this 23rd day of September 2021