v. 

20-1328

NATIONAL LABOR RELATIONS BOARD

Respondent/Cross-Petitioner

JUDGMENT

Before: PILLARI and WILKiNS, Circuit Judges and EDWARDS,

Senior Circuit Judge.

THIS CAUSE came to be heard upon a petition filed by Wendt Corporation

to review an Order ofthe National Labor Relations Board dated July 29, 2020, in

Case Nos. 03-CA-2 12225, 03-CA-22099$ and 03-CA-223 594, reported at 369

NLRB No. 135, and upon a cross-application filed by the National Labor Relations

Board to enforce said Order. The Court heard argument from the parties and has

considered the briefs and agency record filed in this cause. On March 1, 2022, the

Court, being fully advised in the premises, handed down its opinion granting

Wendt Corporation’s petition in part and granting in part the Board’s crossapplication for enforcement. In conformity therewith, it is hereby

ORDERED AND ADJUDGED by the Court that Wendt Corporation, its

officers, agents, successors, and assigns, shall abide by the said order as modified

by the Court. (See Attached Order and Appendix)

Judge, United States Court of A peals

for1-tfl Distric)t of.%olumbi Circuit

tUii

Judge, United States Court of Appeals

for the District of Columbia Circuit

Ju5tg’e, United States Court of Appeals

f/f the District of Columbia Circuit

ENTERED:
Wendt Corporation, Cheektowaga, New York, its officers, agents, successors, and

assigns, shall

1. Cease and desist from

(a) Interrogating employees about their union sympathies.

(b) Creating the impression that it is engaged in surveillance ofits employees’

union or other protected concerted activities.

(c) Informing or implying to employees that employees who support

Shopmen’s Local Union No. 576 (the Union) will be laid off.

(d) Threatening employees with reprisals if they support the Union or any

other labor organization.

(e) Threatening employees with unspecified reprisals for wearing union

insignia.

(f) Instructing employees to remove union insignia.

(g) Instructing employees to remove prounion photographs from social

media.

(h) Denying employees’ requests for union representation at interviews that

they reasonably believe can result in discipline.

(1) Discriminating against employees for supporting the Union by delaying

their performance reviews and wage increases, suspending them,

assigning them to undesirable work, or denying them overtime.

(j) Unilaterally changing the terms and conditions of employment of its unit

employees by mandating overtime, removing unit work and transferring

it to supervisors, or delaying their performance reviews and wage

increases.

(k) Refusing to bargain collectively with the Union by failing and refusing to

furnish it with requested information that is relevant and necessary to the

Union’s performance of its functions as the collective-bargaining

representative ofthe Respondent’s unit employees.

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the Act.

2. Take the following affirmative action necessary to effectuate the policies of

the Act.

(a) Make employees who were not timely provided their performance

evaluations and wage increases, and Dennis Bush and William Hudson,

whole for any loss of earnings and other benefits suffered as a result of

the Respondent’s unlawful conduct, in the manner set forth in the remedy

section ofthe judge’s decision as amended in this decision.

(5) Compensate employees who were not timely provided their performance

evaluations and wage increases, and Dennis Bush and William Hudson,

for the adverse tax consequences, if any, of receiving lump-sum backpayawards, and file with the Regional Director for Region 3, within 21 days

of the date the amount of backpay is fixed, either by agreement or Board

order, a report allocating the backpay awards to the appropriate calendar

years for these individuals.

(c) Within 14 days from the date of this Order, remove from its files any

reference to the unlawful suspension of Dennis Bush, and within 3 days

thereafter notify him in writing that this has been done and that the

suspension will not be used against him in any way.

(d) Within 14 days from the date ofthis Order, remove from Dmytro Ruby’s

2018 performance review the language that he should focus on work, and

within 3 days thereafter notify him in writing that this has been done.

(e) Rescind its unlawful unilateral removal ofunit work and restore the status

quo ante with respect to any reductions in the work performed by unit

employees due to the unlawful employment ofsupervisors to perform unit

work.

(f) Before implementing any changes in wages, hours, or other terms and

conditions of employment of unit employees, notify and, on request,

bargain with the Union as the exclusive collective-bargaining

representative of employees in the following bargaining unit:

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(g) On request, bargain with the Union regarding the retroactivity of pay

increases conferred in 201$.

(h) Furnish to the Union in

a timely manner the information requested by the

Union since on about May 24, 201$, regarding the dates of performance

reviews and wage increases to nonunit employees.

(i) 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 ofsuch records ifstored

in electronic form, necessary to analyze the amount of backpay due under

the terms ofthis Order.

(j) Post at its facility in Cheektowaga, New York, copies of the attached

notice marked “Appendix.”25 Copies ofthe notice, on forms provided by

the Regional Director for Region 3, 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 addition to physical posting of paper notices, notices shall be

distributed electronically, such as by email, posting on an intranet or an

Internet site, and/or other electronic means, ifthe Respondent customarily

communicates with its employees by such means. Reasonable steps shall

25 Ifthe facility involved in these proceedings is open and staffed by

a substantial

complement of employees, the notices must be posted within 14 days after service

by the Region. If the facility involved in these proceedings is closed due to the

Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within

14 days after the facility reopens and

a substantial complement of employees have

returned to work, and the notices may not be posted until

a substantial complement

of employees have returned to work. Any delay in the physical posting of paper

notices also applies to the electronic distribution of the notice if the Respondent

customarily communicates with its employees by electronic means

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(k) Within 21 days after service by the Region, file with the Regional

Director for Region 3 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.

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POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

An Agency ofthe 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 behalfAct together with other employees for your benefit and protection

Choose not to engage in any ofthese protected activities.

WE WILL NOT coercively interrogate you about your union sympathies.

WE WILL NOT give you the impression that we are engaged in surveillance of your

union or other protected concerted activities.

WE WILL NOT inform you or imply to you that employees who support Shopmen’s

Local Union No. 576 (the Union) will be laid off.

WE WILL NOT threaten you with reprisals if you support or show support for the

Union or any other labor organization.

WE WILL NOT threaten you with unspecified reprisals for wearing union insignia.

WE WILL NOT instruct you to remove union insignia.

WE WILL NOT instruct you to remove prounion photographs from social media.

WE WILL NOT deny your requests for union representation at interviews that you

reasonably believe can result in discipline.

WE WILL NOT discriminate against you for supporting the Union by delaying your

performance reviews and wage increases, suspending you, assigning you to

undesirable work, or denying you overtime.

WE WILL NOT change your terms and conditions of employment by delaying your

performance reviews and wage increases, mandating overtime, or removing unit
performance of its functions as the collective

bargaining representative of our unit

employees.

WE WILL NOT fail to bargain with the Union as the exclusive representative of our

employees in the bargaining unit by refusing to bargain regarding the retroactivity

of pay increases conferred in 201$.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you

in the exercise ofthe rights listed above.

WE WILL make Dennis Bush, William Hudson, and employees who were not timely

provided their performance evaluations and wage increases whole for any loss of

earnings and other benefits suffered as

a result of our unlawful conduct, plus interest.

WE WILL compensate employees who were not timely provided their performance

evaluations and wage increases, and Dennis Bush and William Hudson, for the

adverse tax consequences, if any, of receiving lump-sum backpay awards, and WEWILL file with the Regional Director for Region 3, within 21 days of the date the

amount of backpay is fixed, either by agreement or Board order,

a report allocating

the backpay awards to the appropriate calendar years for these individuals.

WE WILL, within 14 days from the date ofthe Board’s Order, remove from our files

any reference to the unlawful suspension of Dennis Bush, and WE WILL, within 3

days thereafter, notify him in writing that this has been done and that the suspension

will not be used against him in any way.

WE WILL, within 14 days from the date ofthe Board’s Order, remove from Dmytro

Ruby’s 2018 evaluation the language that he should focus on work, and WE WILL,

within 3 days thereafter, notify him in writing that this has been done.

WE WILL rescind our unlawful unilateral removal of unit work and restore the status

quo ante with respect to any reductions in the work performed by unit employees

due to the unlawful employment ofsupervisors to perform unit work.

WE WILL, before implementing any changes in wages, hours, or other terms and

conditions of employment of unit employees, notify and, on request, bargain with

the Union as the exclusive collective-bargaining representative of our employees in

the following bargaining unit:

2
WE WILL, on request, bargain with the Union regarding the retroactivity of pay

increases conferred in 2018.

WE WILL provide the Union with the information that it requested since on about

May 24, 2018, regarding the dates of performance reviews and wage increases to

nonunit employees.

WENIT CoRPoRATIoN

The Board’s decision can be found at www.nlrb.gov/case/03-CA-212225 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.

3
Petitioner/Cross-Respondent

v. Nos. 20-1319

20-1328

NATIONAL LABOR RELATIONS BOARD

Respondent/Cross-Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on March 7, 2022, I electronically filed the foregoing

document with the Clerk ofthe 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 ofrecord through the appellate CMJECF 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 7th day of March 2022