COMMUNITY SCHOOL OF EXCELLENCE

National Labor Relations Board - Unpublished Board Decisions

Jul 12, 2016

18-CA-145860 (N.L.R.B. Jul. 12, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
COMMUNITY SCHOOL OF EXCELLENCE
and Cases 18-CA-145860
18-CA-151198
EDUCATION MINNESOTA: FEDERATION 18-CA-165594
OF CHARTER SCHOOL EMPLOYEES
DECISION AND ORDER
Statement of the Cases
On April 18, 2016, Community School of Excellence (the Respondent), Education
Minnesota: Federation of Charter School Employees (the Union), and the General
Counsel of the National Labor Relations Board entered into a Formal Settlement
Stipulation, subject to the Board’s approval, providing for the entry of a consent order by
the Board and a consent judgment by any appropriate United States Court of Appeals.
The parties waived all further and other proceedings before the Board to which they
may be entitled under the National Labor Relations Act and the Board’s Rules and
Regulations, and the Respondent waived its right to contest the entry of a consent
judgment or to receive further notice of the application therefor.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The Formal Settlement Stipulation is approved and made a part of the record,
and the proceeding is transferred to and continued before the Board in Washington,
D.C., for the entry of a Decision and Order pursuant to the provisions of the Formal
Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following
Findings of Fact
1. The Respondent’s business
At all material times, the Respondent, a Minnesota non-profit corporation with an
office and place of business in St. Paul, Minnesota, has been engaged in the operation
of a charter school.
During the calendar year ending December 31, 2015, the Respondent, in
conducting its operations described above, purchased and received at its St. Paul,
Minnesota facility goods and services valued in excess of $5,000 directly from suppliers
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located outside the State of Minnesota, and earned gross revenues in excess of
$1,000,000.
At all material times, the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The labor organization
At all material times, the Union has been a labor organization within the meaning
of Section 2(5) of the Act.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board orders that:
The Respondent, Community School of Excellence, St. Paul, Minnesota, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining or enforcing rules against posting pictures of Community School
of Excellence Events, staff, or students without prior written approval from the
Respondent.
(b) Maintaining or enforcing rules requiring that staff work collegially and in a
spirit of cooperation and peace as a team because employees engaged in activity
protected by the National Labor Relations Act.
(c) Threatening employees for sending e-mails to all staff instead of bringing
work-related concerns directly to the Respondent's administration.
(d) Threatening employees that they must get permission before sending e-mails
to staff regarding work-related issues and prohibiting such e-mails without prior
permission.
(e) Threatening employees by requiring employees to follow a performance
improvement plan including directives to avoid negative comments and conversations.
(f) Threatening employees by requiring employees to follow a performance
improvement plan including directives to avoid raising work-related complaints with
anyone but the employees' supervisors.
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(g) Threatening employees by requiring employees to follow a performance
improvement plan including, among other directives, being professional and respectful
in interactions with other staff.
(h) Threatening employees by stating that the administration was appalled by,
and would investigate, comments employees made at a staff meeting regarding work
related complaints.
(i) Threatening employees that because they engage in union or other concerted
protected activities, including: by describing protected and concerted contacts with the
press about NLRB charges underhanded and slanderous; by describing employees'
protected and concerted contacts with the press as out of control; or by telling Union
representatives that it has to control employees' protected and concerted contacts with
the press or the school administrators will.
(j) Coercively interrogating employees concerning their union or other concerted
protected activities, including about whether other employees are pressuring them in
protected and concerted discussions about wages, hours, and terms and conditions of
employment, including age-related admissions policies and the policies' effects on their
working conditions; or about whether employees are talking to the Union about such
issues, or about employees' attendance at school board meetings or contacts with the
press.
(k) Threatening, renewing or placing employees on performance improvement
plans in retaliation for employees' protected and concerted activities.
(l) Reprimanding or otherwise disciplining employees in retaliation for
employees' protected and concerted activities.
(m) Reviewing any employee's employment history in response to their union or
other concerted protected activities with an intention to find reasons to terminate the
employee.
(n) Discharging or otherwise discriminating against employees in retaliation for
their engagement in union or other concerted protected activities, and in order to
discourage membership in Education Minnesota: Federation of Charter Schools
Employees (the Union), or in any other labor organization.
(o) Failing or refusing to bargain collectively in good faith with the Union as
bargaining representative of the Respondent's employees in the appropriate unit about
wages, hours, and terms and conditions of employment including discretionary
discipline and discharge of employees. The appropriate bargaining unit is:
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All full-time and regular part-time teachers, educational assistants, tutors,
custodial, clerical, and food service employees employed at its school
facility located at 170 Rose Avenue, St. Paul, Minnesota; excluding all
managers, guards and supervisors as defined in the Act as amended, and
confidential employees.
(p) Discretionarily disciplining, including by discharging, employees without
giving the Union adequate notice and an opportunity to bargain over that discipline.
(q) In any other manner failing or refusing to bargain in good faith, or impeding
or interfering with the efforts of the Union as its employees’ exclusive representative to
bargain collectively on their behalf and to represent them properly in accordance with
the requirements of the Act, or thereby interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Rescind performance improvement plans issued to Eric Johnson (dated
November 3, 2014) and Wendy Ansley (dated December 5, 2014), and notify them in
writing that this has been done and that the plans will not be used against them in any
way.
(b) Rescind warnings issued to Eric Johnson, Wendy Ansley, Rebecca Blythe
Inners, and Bong Xiong dated December 15 or 16, 2014, and to Rebecca Blythe Inners
dated January 9, 2015, and notify them in writing that this has been done and that the
warnings will not be used against them in any way.
(c) Make Eric Johnson whole for any losses suffered since his discharge on
October 20, 2015; remove from its files all references to the discharge of Eric Johnson;
and notify him in writing that this has been done and that the discharge will not be used
against him in any way. Johnson, who is entitled to reinstatement, has waived his right
to reinstatement to his former job.
(d) Within 14 days of service by the Region, post at its St. Paul, Minnesota
facility copies of the attached Notice marked "Appendix A." Copies of the Notice, on
forms provided by Region 18, 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 English, Hmong, and Karenni. The Respondent will take
reasonable steps to ensure that the Notices are not altered, defaced or covered by any
other material. 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 Respondent at any
time since October 30, 2014.
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(e) In addition to physical posting of paper notices, the Notice to Employees
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.
(f) Within 21 days after service by the Region, file with the Regional Director for
Region 18 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.
Dated, Washington, D.C., July 12, 2016
_________________________________
Philip A. Miscimarra, Member
_________________________________
Kent Y. Hirozawa, Member
_________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER
AND A CONSENT JUDGMENT OF ANY APPROPRIATE
UNITED STATES COURT OF APPEALS
As you may know, Education Minnesota: Federation of Charter School Employees filed
charges with the National Labor Relations Board alleging we violated the National Labor
Relations Act. The charges have been investigated and settled. As part of the
Settlement Agreement, we have agreed to post this Notice to Employees.
FEDERAL LAW GIVES YOU THE RIGHT TO:
ï‚· Form, join, or assist a union
ï‚· Choose representatives to bargain with us on your behalf
ï‚· Act together with other employees for your benefit and protection
ï‚· Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
YOU HAVE THE RIGHT to discuss wages, hours and working conditions with other
employees and to freely bring work related issues and complaints to us on behalf of
yourself and other employees and WE WILL NOT do anything to interfere with your
exercise of those rights.
YOU HAVE THE RIGHT to engage in protected concerted activity. Protected concerted
activity includes bringing group issues to the attention of management, and it includes
discussions between employees about terms and conditions of employment including
discussions about wages, disciplines, supervisors and all other terms and conditions of
employment. Protected discussions include discussions about your employment which
are meant to initiate group action, or are otherwise for the benefit and protection of
employees.
WE WILL NOT stop employees from publishing pictures of staff and Community School
of Excellence events which do not include students and WE WILL change the rule in
our handbook on that subject.
WE WILL NOT stop employees from discussing wages, hours and working conditions
with other employees or to otherwise prevent employees from engaging in protected
concerted activity through the application of any of the policies in our handbook,
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employment contracts or expectations of staff, including our policy that employees work
collegially with the entire staff.
WE WILL NOT restrict employees’ use of our e-mail system or require employees to
receive preapproval before sending e-mails because they engage in activity with other
employees regarding wages, hours, and working conditions, or because employees
choose to be represented by or support a union.
WE WILL NOT threaten, renew or place employees on performance improvement plans
because they engaged in activity with other employees regarding wages, hours, and
working conditions, or because they chose to be represented by or support a union.
WE WILL NOT threaten or discipline employees for failing to follow our complaint
resolution procedures merely because they engage in activity with other employees
regarding wages, hours, and working conditions, or because they choose to be
represented by or support a union.
WE WILL NOT threaten or discipline employees for being unprofessional when
interacting with staff or CSE administration merely because they engage in activity with
other employees regarding wages, hours, and working conditions, or because they
chose to be represented by or support a union.
WE WILL NOT threaten employees that their comments are appalling because they
exercise their right to discuss or protest working conditions with employees, or because
they publicize labor disputes at meetings with third parties.
WE WILL NOT discipline or reprimand employees merely because they exercise their
right to discuss wages, hours and working conditions with other employees, because
they publicize labor disputes at meetings with third parties, or because they choose to
be represented by or support a union.
WE WILL NOT threaten employees because they engage in union or other concerted
protected activities, including by describing contacts with the press about NLRB charges
as underhanded and slanderous; by describing employees' contacts with the press as
out of control; or by telling Union representatives that they have to control employees'
contacts with the press or the school administrators will.
WE WILL NOT ask employees about their union or other concerted protected activities,
including whether the Union or other employees are pressuring them in discussions
about wages, hours, and terms and conditions of employment with other employees,
including age-related admissions policies, or about whether employees are talking to
the Union about such issues, or about employees' attendance at school board meetings
or contacts with the press.
WE WILL NOT fire or otherwise discriminate against employees because of their union
membership or support, or because they engage in other protected and concerted
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activities, in order to discourage membership in Education Minnesota: Federation of
Charter School Employees, or in any other labor organization.
WE WILL NOT undertake to review your employment history in order to find reasons to
fire you because you support the Union or engage in other protected concerted
activities with other employees.
WE WILL remove from our files all references to the performance improvement plans of
Eric Johnson and Wendy Ansley dated November 3, 2014, and December 5, 2014,
respectively, and WE WILL notify them in writing that this has been done and that the
performance improvement plans will not be used against them in any way.
WE WILL remove from our files all references to the warnings of Wendy Ansley, Eric
Johnson, Bong Xiong and Blythe Inners dated December 15, 2014, or December 16,
2014, and WE WILL notify them in writing that this has been done and that the warnings
will not be used against them in any way.
WE WILL remove from our files all references to the warning of Blythe Inners delivered
on January 9, 2015, and WE WILL notify her in writing that this has been done and that
the verbal reprimand will not be used against her in any way.
Eric Johnson has declined reinstatement to his former job.
WE WILL pay Eric Johnson for the wages and other benefits he lost because we fired
him.
WE WILL remove from our files all references to the discharge of Eric Johnson and WE
WILL notify him in writing that this has been done and that the discharge will not be
used against him in any way.
Education Minnesota: Federation of Charter School Employees is the employees'
representative in dealing with us regarding wages, hours and other working conditions
of the employees in the following unit:
All full-time and regular part-time teachers, educational assistants, tutors,
custodial, clerical, and food service employees employed at our school
facility located at 170 Rose Avenue, St. Paul, Minnesota; excluding all
managers, guards and supervisors as defined in the Act as amended and
confidential employees.
WE WILL, upon request, bargain in good faith with Education Minnesota: Federation of
Charter School Employees as the exclusive collective-bargain representative of our unit
employees.
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WE WILL NOT fail or refuse to meet and discuss in good faith with your Union any
proposed changes in wages, hours and working conditions, including discretionary
discipline and/or discharge, before putting such changes into effect.
WE WILL, if requested by the Union, rescind any or all changes to your terms and
conditions of employment that we made without bargaining with the Union.
WE WILL pay employees for the wages and other benefits lost because of the changes
to terms and conditions of employment that we made without bargaining with the Union.
WE WILL NOT in any other manner interfere with your rights under Section 7 of the Act.
COMMUNITY SCHOOL OF EXCELLENCE
(Employer)
The Board’s decision can be found at www.nlrb.gov/case/18-CA-145860 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, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.