Barnard College (2-CA-33460, 33462; 340 NLRB No. 106) New York, NY Oct. 21, 2003.

The Board affirmed the administrative law judge's conclusions that the Respondent violated Section 8(a)(5) and (1) of the Act on November 30, 2000 by unilaterally changing the parties' agreed-upon grievance handling procedures when the Respondent's director of facilities services, Suzanne Gold, refused to meet with two union representatives at a second-step grievance meeting; and Section 8(a)(1) on August 24, 2000, by limiting the union representative's participation in John Crespo's and Fernando Calvo's investigatory interviews to that of a silent observer, denying their right under NLRB v. Weingarten, 420 U.S. 251 (1975).

Chairman Battista and Member Schaumber held that the Respondent did not violate Section 8(a)(1) by suspending Crespo and Calvo at the end of each employee's August 24 interview. Although the complaint alleged that Crespo and Calvo were unlawfully suspended because they refused to participate in the investigatory interviews without union representation, the majority said that the motivating factor for their suspension was their insistence for not one, but two union representatives. They found that Crespo's and Calvo's demands for two union representatives were not protected conduct.

Dissenting in part, Member Liebman argued that Crespo's and Calvo's demands for union representation were protected conduct, even if the employees actually insisted on being represented by two union representatives. She said that her colleagues ignored the direct connection between the Respondent's unlawful denial of representation and the employees' subsequent demand. Member Liebman noted that if Crespo's suspension was unlawful, then his discharge--which was predicated in part on the suspension--must be evaluated separately under Wright Line. She would sever this issue and remand it to the judge for initial findings and conclusions.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Transport Workers Local 264; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, April 16-17, 2002. Adm. Law Judge Michael A. Marcionese issued his decision Nov. 14, 2002.

* * *

Ready Mix USA, Inc. (10-CA-32872; 340 NLRB No. 107) Florence, AL Oct. 24, 2003.

The Board adopted the administrative law judge's finding that the Respondent, by refusing to recognize and bargain with Operating Engineers Local 320, violated Section 8(a)(1) and (5) of the Act.

The Respondent, as found by the judge and agreed to by the Board, is a successor to Southern Ready-Mix (SRM) and passed the test for determining successorship under NLRB v. Burns Security Services, 406 U.S. 272 (1972). In its exceptions, the Respondent claimed, among other things, that because of significant changes in the management and overall corporate structure of the business, its predecessor's historical combined unit of ready-mix batch plant and concrete block plant, employees no longer remained an appropriate unit.

The Board held that the unit remained appropriate as there was a substantial and representative employee complement because the Respondent had offered employment to all the SRM employees and operation of the facilities continued uninterrupted, and the Respondent continued to operate its predecessor's facilities in essentially an unchanged manner from the time of the purchase.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed Operating Engineers Local 320; complaint alleged violation of Section 8(a)(1), (5), and 8(d). Hearing at Florence on Oct. 29, 2001. Adm. Law Judge Margaret G. Brakebusch issued her decision Jan. 18, 2002.

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