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NLRB Panel Orders Additional Remedies to Administrative Law Judge’s Order in Union Case Involving Kentucky Grain Company

Apr 15, 2022

Branstetter, Stranch & Jennings (BS&J) attorneys K. Grace Stranch and David O’Brien Suetholz recently achieved success in a case against a Kentucky grain company for unfair labor practices. The case is Gavilon Grain, LLC, and Laborers’ International Union of North America, Local 1392, cases 25–CA–264907 and 25–CA–265798. Stranch and Suetholz represented the Union in this case.

Based in Omaha, Nebraska, Gavilon is a commodity management firm that employs 2,000 people worldwide and is the second-largest grain handler in North America. The company operates a grain elevator in Maceo, Kentucky (known as the Owensboro facility) in the northwest portion of the state. The company engaged 10 employees at this location during the time period relevant to this case, six of whom were grain pit employees.

In March 2022, a three-judge panel of the National Labor Relations Board (NLRB) concurred with a May 2021 ruling by NLRB Administrative Law Judge Geoffrey Carter, but amended the remedy to include additional requirements.

The case centers around actions taken by company management August 12 – 14, 2020. These actions took place following two employee Union organization meetings held July 22 and August 11, along with an August 12 meeting between a Local 1392 representative and a member of Gavilon’s management team.

In November 2020, the NLRB General Counsel issued a consolidated complaint alleging that Gavilon violated Section 8(a)(3) and (1) of the Labor Relations Act by taking the following actions:

  • Decreasing employee benefits by prohibiting them from storing items in the company’s warehouse
  • Prohibiting employees from clocking in before 6:45 a.m.
  • Removing the employee ashtray and smoking area
  • Imposing more onerous and rigorous terms and conditions of employment by requiring employees to engage in additional cleaning duties and subjecting employees to closer scrutiny of their work assignments
  • Discharging employee Zachary Baxter

Judge Carter’s decision stated that Gavilon (Respondent) violated Section 8(a)(3) and (1) of the Act by taking adverse employment action against its employees in retaliation for their decision to seek Union representation and engage in protected concerted activities.

“Before the Union arrived on the scene on August 12, Respondent was fine with … employees’ cleaning practices, the original smoking area location, employees storing personal items in the warehouse, flexible clock-in times, and employees working at the facility on a part-time basis. Once the Union requested recognition on August 12, Respondent decided to retaliate against employees by eliminating/modifying these practices,” he wrote in his summary.

Judge Carter ordered the company to cease and desist from:

  • Decreasing employees’ benefits because of their Union support
  • Imposing more onerous and rigorous terms and conditions of employment on employees because of their Union support
  • Discharging or otherwise discriminating against employees for supporting the Union
  • Interfering with, restraining or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act

Gavilon was also ordered to take the following affirmative actions:

  • Make employees whole (with interest) for any loss of earnings/benefits resulting from prohibiting employees from clocking in before 6:45 a.m. and from storing personal items in the company’s warehouse
  • Offer Zachary Baxter timely reinstatement to his former job or an equivalent position, make him whole for any loss of earnings/benefits from the company’s discrimination against him and remove any references to his unlawful discharge from company files
  • Compensate affected employees for adverse tax consequences of receiving lump-sum back pay awards and file the amount of back pay with the regional director in a timely manner
  • Preserve and provide all records necessary for determining back pay amount to the regional director within 14 days of such request
  • Post and electronically distribute copies of a NLRB notice regarding the company’s violation of national labor law and the rights to which employees are entitled under the law

The NLRB panel’s March 2022 ruling also added the following affirmative actions:

  • Restore the practices of allowing employees to clock in before 6:45 a.m. and store personal items in the warehouse
  • Restore the employee ashtray and smoking area to its prior location
  • Hold a meeting or meetings during working hours at its Maceo facility to read the NLRB notice regarding the company’s violation of national labor law and the rights to which employees are entitled under the law

In ordering Gavilon to hold a public reading of the notice, the panel cited a similar order in January 2022 in the case of Johnston Fire Services LLC, and United Association of Journeymen Local 669. The panel amended an administrative law judge’s remedy to include a public notice reading. BS&J attorneys Stranch and Suetholz represented the Union in that case as well.

“We are pleased that the NLRB panel ordered these additional actions by Gavilon, including the public notice reading, as was done in the Johnston Fire Services case,” Suetholz said. “Gavilon’s unfair practices sent a message to its employees that they supported the Union at their own peril, as the panel pointed out in its decision. Local 1392 requested recognition by Gavilon based on authorization cards signed by all six of the company’s grain pit employees. However, after company management retaliated, only one employee voted in favor of the Union when the election took place just over a month later.”

“Reassurance to employees that their rights under the Act will not be violated is particularly important in light of the Respondent’s swift response to the Union’s request for recognition, the widespread nature of the Respondent’s unfair labor practices, the small size of the unit, and the participation of high-ranking management officials,” the NLRB panel wrote in their decision. “We find that a public reading of the remedial notice is necessary in these circumstances to allow the employees to ‘fully perceive that the Respondent and its managers are bound by the requirements of the Act’ and to ensure that if the question of Union representation is placed before employees in the future, they will be able to exercise a free choice.”