MBI Acquisition Corp.

National Labor Relations Board - Board Decisions

Apr 16, 1998

325 N.L.R.B. 666 (N.L.R.B. 1998)

666
325 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 324 NLRB No. 188. Member Hurtgen did not participate in this
decision and does not pass on its merits.
2 Chairman Gould would additionally require a mailed notice to
any employees similarly situated to Baroco employees, that is, em-
ployees of former contractors or subcontractors of the Respondent
who worked on a regular and exclusive basis at the Respondent’s
Daytona Beach, Florida store at any time since October 7, 1993. In
the absence of allegations or evidence that any other groups of em-
ployees were subjected to unlawful conduct, Members Fox and
Hurtgen do not agree that notice to any other employees is war-
ranted.
3 Consistent with Excel Container, Inc., 325 NLRB No. 14 (Nov.
7, 1997), we have also revised the triggering date of the Respond-
ent’s notice obligation to the date of the first unfair labor practice.
MBI Acquistition Corp. d/b/a Gayfers Department
Store and International Brotherhood of Elec-
trical Workers, Local Union No. 756, AFL–
CIO. Cases 12–CA–15841(1–2)
April 16, 1998
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On November 8, 1997, the National Labor Relations
Board issued a Decision and Order in this proceeding.1
The Board held that the Respondent had violated Sec-
tion 8(a)(1) of the Act by prohibiting subcontractor
employees from distributing handbills at the entrances
to its store, by causing these employees to be arrested
for engaging in protected handbilling, and by maintain-
ing and enforcing a presumptively unlawful (over-
broad) no-solicitation/no-distribution rule.
On December 15, 1997, the Respondent filed an un-
opposed Motion to Reconsider or Amend the Board’s
Order.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Respondent contends that the notice posting and
mailing provision of the Order, Section 2(b), is too
broad. Section 2(b) requires the Respondent to mail
copies of the Board’s notice not only to subcontractor
Baroco’s employees, whose handbilling was unlawfully
restricted, but also to the Respondent’s own employees
and employees of ‘‘present and former subcontrac-
tors.’’ The Respondent also contends that the Order’s
requirement that the Respondent mail notices in lieu of
posting is inappropriate where, as here, the Respondent
has not ceased doing business.
We turn first to the issue of which employees should
receive notice. We do not agree with the Respondent
that the notice should be directed only to employees of
Baroco. The Respondent has interfered with the exer-
cise of Section 7 rights by two groups of employees:
(1) employees of Baroco whom the Respondent unlaw-
fully threatened to arrest and caused to be removed
from its property; and (2) employees of the Respond-
ent itself who, too, were subjected to the Respondent’s
overly broad no-solicitation/no-distribution rule. Ac-
cordingly, we will require notice to both these groups.2
We turn next to the issue of method of notice. We
find merit in the Respondent’s motion in two respects.
First, the customary Board Order does not contain a
general mailing requirement such as found here. Rath-
er, under Indian Hills Care Center, 321 NLRB 144
(1996), the Board usually provides for the mailing of
notices in the event that a respondent’s facility has
closed during the pendency of unfair labor practice
proceedings. Thus, as to the Respondent’s own em-
ployees, we shall provide for mailing only in the event
that the Respondent closes. As to Baroco’s employees,
we shall provide for mailing, inasmuch as the Re-
spondent asserts, without rebuttal, that they no longer
work at its facility.3
ORDER
Substitute the following for subparagraph 2(b) of the
Order:
‘‘(b) Within 14 days after service by the Region,
post at its Daytona Beach, Florida store copies of the
attached notice marked ‘Appendix’8 Copies of the no-
tice, on forms provided by the Regional Director for
Region 12, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business
or closed the facility in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense,
a copy of the notice to all of its current and former
employees who have worked under its unlawful no-
solicitation/no-distribution rule since October 7, 1993.
Additionally, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to current or
former employees of Baroco who have worked on a
regular or exclusive basis at the Respondent’s Daytona
Beach facility since October 7, 1993.’’
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