Milum Textile Services

National Labor Relations Board - Unpublished Board Decisions

Mar 23, 2012

28-CA-020898 (N.L.R.B. Mar. 23, 2012)

1
NOT TO BE INCLUDED PHG
IN BOUND VOLUMES Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
MILUM TEXTILE SERVICES CO.
and Cases 28-CA-20898
28-CA-20906
28-CA-20973
UNITE HERE! 28-CA-21050
28-CA-21203
ORDER DENYING MOTION
On December 30, 2011, the National Labor Relations Board issued a decision in
this proceeding1 finding that the Respondent violated Sections 8(a)(1) and (3) of the Act
in numerous respects and that those unfair labor practices warranted the imposition of a
bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).2 Thereafter,
the Respondent filed a Motion to Reopen the Record. The Respondent argues that the
bargaining order is inappropriate and it wishes to introduce allegedly previously
unavailable evidence concerning (1) the passage of time since the unfair labor practices
occurred in 2006, (2) employee turnover since March 4, 2006, the date the Union

1 Milum Textile Services Co., 357 NLRB No. 169.
2 The Board entered final rulings on all but one issue, which it remanded to the
administrative law judge. Member Hayes dissented in part, including as to the issuance
of the bargaining order.
2
established majority status, and (3) the absence of any unfair labor practice charges
filed against it since it received the Administrative Law Judge’s decision in October
2007. The Respondent has also attached to its motion a “declaration” from its president,
elaborating, inter alia, on its employee turnover contentions.3
Having duly considered the matter, we deny the Respondent's motion to reopen
the record for the reasons stated below.
In the underlying decision, the Board found that the Respondent committed
several Section 8(a)(1) violations, including seeking to enjoin clearly protected Section 7
activity in federal court, granting a benefit, interrogating employees, implicitly
threatening to reduce employees’ wages if they selected the Union, prohibiting
employees from wearing union buttons while working, and giving employees the
impression that their union activities were under surveillance. Further, the Respondent
violated Section 8(a)(3) by discriminatorily discharging two employees and suspending
a third. The Board, reversing the judge, found that these unfair labor practices met the
standard for a category II Gissel bargaining order. The Board emphasized that the
discriminatory discharges, as “hallmark” violations, “‘are more likely to destroy election
conditions for a longer period of time than are other unfair labor practices because they
tend to reinforce the employees' fear that they will lose their employment if union activity

3 The Acting General Counsel filed an opposition to the Respondent's motion, and a
motion to strike the Respondent’s “declaration” (referring to it as an “affidavit”). The
Charging Party Union filed an opposition to the motion, and the Respondent filed a
reply.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
3
persists.’”4 Finally, the Board considered and rejected the Respondent’s argument that
the passage of time since the unfair labor practices were committed weighed against a
bargaining order because “the Board's established practice is to evaluate the
appropriateness of a Gissel bargaining order as of the time that the unfair labor
practices occurred; changed circumstances following the commission of the violations
are generally not considered.”5 In issuing the bargaining order, the Board found that the
rights of those employees who may oppose the Union are sufficiently protected by the
Board’s decertification procedure under Section 9(c)(1) of the Act.
As it did on brief to the Board, the Respondent asserts in its motion that a
bargaining order is inappropriate. First, it contends that the Board “expressly refused to
consider whether the passage of time” between the commission of the unfair labor
practices and the issuance of the Decision and Order (more than 5 years) weighs
against imposing a remedial bargaining order. It cites D.C. Circuit precedent holding
that the Board must consider the appropriateness of a bargaining order at the time the
order is issued, including considering the passage of time and employee turnover.6
Second, regarding employee turnover, the Respondent contends that, of the
approximately 70 employees employed on the date that the Union established a
majority, 9 remain employed by the Respondent, and of the 42 who the Board found
signed the petition, only 3 remain.7

4 Milum Textile Services, above, slip op. at 9 (quoting Traction Wholesale Center Co.,
Inc., 328 NLRB 1058, 1077 (1999), enfd. 216 F.3d 92 (D.C. Cir. 2000)).
5 Id., slip op. at 10 (citing Evergreen America Corp., 348 NLRB 178, 181-182 (2006),
enfd. 531 F.3d 321 (4th Cir. 2008)).
6 See, e.g., Cogburn Health Center, Inc., v. NLRB, 437 F.3d 1266 (D.C. Cir. 2006).
7 It is not clear whether the remaining employees include the unlawfully discharged
employees who were ordered reinstated.
4
Section 102.48(d)(1) of the Board's Rules and Regulations provides that a motion
to reopen the record must state why the additional evidence, if adduced and credited,
“would require a different result.” Although the Respondent contends that, under D.C.
Circuit precedent, the passage of time and employee turnover make the bargaining
order inappropriate, the Board’s long-established policy is to assess the propriety of a
bargaining order as of the time that the respondent committed the violations.8
Consistent with this policy, the Respondent’s additional evidence is irrelevant to the
issuance of the Gissel bargaining order.
Nevertheless, even if we were to consider the Respondent’s evidence of
employee turnover, it would not change the result.
In the underlying decision, the Board found that “knowledge of the
[Respondent’s] violations was disseminated throughout the workforce and significantly
affected union support.”9 It is likely that this same process of dissemination would reach
newly hired employees as well, whose support for the Union may well be affected by
accounts of past unfair labor practices.10 In this respect, nothing in the Respondent’s

The Respondent presented evidence at the hearing that 1 year after the unfair
labor practices, 30 percent of the Union’s supporters remained, and it argued on brief to
the Board that turnover made a bargaining order inappropriate.
8 Action Auto Stores, Inc., 298 NLRB 875 (1990), enfd. mem. 951 F.2d 349 (6th Cir.
1991). As we have stated before, “we respectfully continue to disagree with those courts
of appeals which have expressed a contrary view of employee turnover as a factor to be
considered in determining the propriety of a bargaining order.” Highland Plastics, Inc.,
256 NLRB 146, 147 fn. 9 (1981). Further, this case arose in the Ninth Circuit, where,
consistent with our policy, “changed circumstances during intervals of adjudication ‘have
been held irrelevant to the adjudication of enforcement proceedings.’” East Bay
Automotive Council v. NLRB, 483 F.3d 628, 635 (9th Cir. 2007) (quoting NLRB v.
Bakers of Paris, Inc., 929 F.2d 1427, 1448 (9th Cir. 1991)).
9 Milum Textile Services, above, slip op. at 9.
10 “As the Fifth Circuit has recognized, ‘[p]ractices may live on in the lore of the shop
and continue to repress employee sentiment long after most, or even all, original
5
motion affects our prior finding that the Respondent’s unlawful discharge of two union
adherents would remain in employees’ memories for a long time. Further, as of the filing
of the instant motion, the Respondent’s president remains in the same position he
occupied when he committed the hallmark violations. The Board in the underlying
decision emphasized that his involvement in the unfair labor practices heightened their
coercive effect.11 His continued presence at the top of the company weighs in favor of
the bargaining order, notwithstanding employee turnover.12
In sum, even if the Respondent’s new evidence were adduced and credited, the
Respondent has not shown that the evidence would require a different result.13
Accordingly, we deny the Respondent’s motion.14
IT IS ORDERED that the Respondent's motion to reopen the record is denied.
____________________________
Mark Gaston Pearce, Chairman
____________________________
Richard F. Griffin, Jr., Member

participants have departed.’” California Gas Transport, Inc., 347 NLRB 1314, 1326
(2006) (quoting Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978) (enforcing
bargaining order)), enfd. 507 F.3d 847 (5th Cir. 2007).
11 Milum Textile Services, above, slip op. at 9.
12 California Gas Transport, above (bargaining order appropriate where, inter alia, there
was no contention that managers or supervisors who committed violations had left
respondent’s employment); Action Auto Stores, Inc., above at 875.
13 We also reject the Respondent’s argument that the lack of new unfair labor practice
charges filed against the Respondent since the judge issued her decision militates
against a bargaining order. Electro-Voice, Inc., 321 NLRB 444, 445 (1996) (stating that
the Board does not consider the absence of subsequent unfair labor practices in
determining the appropriateness of a bargaining order).
14 In light of the disposition here, we find it unnecessary to reach the Acting General
Counsel’s argument that the Respondent’s motion is untimely, and the Acting General
Counsel’s motion to strike the Declaration of Craig Milum.
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MEMBER HAYES, dissenting.
I dissented from the issuance of the bargaining order in the underlying decision, and I
adhere to that position. The Respondent’s proffered evidence indicates that there has been
a nearly complete turnover in the workforce since the unfair labor practices were committed,
which further undermines the case for a bargaining order. In addition, the Respondent has
filed a petition for review with the D.C. Circuit, which has repeatedly instructed the Board to
consider the appropriateness of a bargaining order at the time the order is issued.15 Under
these circumstances, I would grant the Respondent’s motion.
______________________________________
Brian E. Hayes, Member
Dated, Washington, D.C. March 23, 2012.
(SEAL) NATIONAL LABOR RELATIONS BOARD

15 See, e.g., Cogburn Health Center, Inc., v. NLRB, 437 F.3d 1266 (D.C. Cir. 2006).