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02/25/2005
by Ross Runkel at LawMemo
NLRB Law Memo 02/25/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 4 decisions.
NLRB General Counsel Advice Memos - 4 cases.
Big Sky Locators, Inc. (28-CA-17698; 344 NLRB No. 15) Las Vegas, NV, Feb. 14, 2005.
In affirming the administrative law judge's findings, the Board held that the Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from Electrical Workers IBEW Local 396 as the recognized collective-bargaining representative of the Respondent's employees in the appropriate unit; failing to continue in effect terms and conditions of employment as set forth in the parties' collective-bargaining agreement; failing to make Line Construction Benefit Fund health insurance premium payments and thereby failing to continue in effect employees' coverage; and unilaterally placing into effect an alternative health care plan and imposing premium costs on employees.
The Board modified the order and notice to conform with the judge's findings and to require the Respondent to make available all records necessary to reimburse employees for unremitted dues and to add standard language regarding conditional notice mailing.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Electrical Workers IBEW Local 396; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Las Vegas, June 11 and 12, 2002. Adm. Law Judge Gerald A. Wacknov issued his decision Aug. 27, 2002.
***
Center for the Disabled (3-RC-11255; 344 NLRB No. 21) Albany, NY Feb. 16, 2005.
The Board adopted the hearing officer's conclusion that the Employer established a valid business justification with respect to both the grant of the wage increases and the timing of their announcement and, overruled the Petitioner's (Needletrades Employees) Objection 1, and certified the results of the rerun mail ballot election conducted from May 13 through 28, 2004. In the absence of exceptions, it also adopted the hearing officer's recommendation that the Petitioner's Objection 3 be overruled. The tally of ballots showed 285 for and 381 against, the Petitioner, with 83 challenged ballots, an insufficient number to affect the results of the election.
Objection 1 alleged that the Employer, by announcing and then partially granting a "Twelve Month 10% Pay Plan for Center Staff" during the critical period between the first and second elections, engaged in objectionable conduct. The Petitioner argued that while the "presence of a legitimate business justification may be a viable defense to a ยง 8(a)(1) allegation, it does not allow the employer to escape responsibility here in an unconsolidated representation case."
Contrary to the Petitioner's argument, the Board cited Sun Mart Foods, 342 NLRB No. 22, slip op. at 2 (2004), also an "unconsolidated representation case" which in pertinent part reads:
The Board will infer that an announcement or grant of benefits during the critical period is objectionable; however, the employer may rebut the inference by establishing an explanation other than the pending election for the timing of the announcement or the bestowal of the benefit. Star, Inc., 337 NLRB 962, 963 (2002). The employer may rebut the inference by showing that there was a legitimate business reason for the timing of the announcement or for the grant of the benefit.
While Member Schaumber dissented in Sun Mart Foods, he did not do so here because the hearing officer considered the employer's business justification defense. In Sun Mart Foods, the Board majority found that although the employer presented a legitimate business justification for its preelection decision to grant employees a benefit by remodeling the grocery where they worked, it failed to establish such a defense with respect to the timing of the announcement just 2 days before the election, thereby interfering with the election.
(Chairman Battista and Members Liebman and Schaumber participated.)
***
Electric By Miller, Inc. (17-CA-22667; 344 NLRB No. 20) Grove, OK, Feb. 16, 2005.
The Board adopted the recommendations of the administrative law judge and found that the Respondent violated Section 8(a)(1) of the Act by threatening its employees with closure of the business if they selected Electrical Workers IBEW Local 584 as their collective-bargaining representative and falsely announcing closure of the business in order to effectuate the discharge of a prounion employee, and violated Section 8(a)(1) and (3) by discharging John R. Carter because of his union activities.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Electrical Workers IBEW Local 584; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami, OK on Sept. 14, 2004. Adm. Law Judge George Carson II issued his decision Nov. 3, 2004.
***
International Transportation Service, Inc. (21-CA-34968; 344 NLRB No. 22) Long Beach, CA Feb. 18, 2005.
In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) of the Act by informing an employee that she was being discharged because she engaged in union and protected concerted activity, specifically picket line activity on behalf of Longshoremen Local 63 , and violated Section 8(a)(1) and (3) by terminating employee Deanna Tartaglia because she engaged in union and protected concerted activity, specifically picket line activity on behalf of the Union.
Chairman Battista and Member Schaumber noted that the judge relied on the Board's decision in Teamsters Local 115 (Vila-Barr Co.), 157 NLRB 588 (1966), in finding that the picket line activity was protected. While they do not pass on the correctness of the Vila-Barr decision, and in the absence of a three-member Board majority to overrule Vila-Barr, Chairman Battista and Member Schaumber applied that precedent and joined their colleague in affirming the judge's finding that the picketing was protected.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Longshoremen Local 63; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, June 5-6, 2003. Adm. Law Judge Gregory Z. Meyerson issued his decision Sept. 10, 2003.
NLRB General Counsel Advice Memos - 4 cases.
UNITE HERE Local 2 (San Francisco Hotels Multi-Employer Group) (20-CB-12268) January 25, 2005
Two separate Union locals were engaged in collective bargaining with two separate multiemployer groups of hotels in San Francisco and Los Angeles. Each local insisted on a two-year agreement. Previous agreements had been five or six years. By getting two-year agreements, the expiration of the agreements would coincide with expirations of agreements in other major cities such as New York, Chicago, Boston, Honolulu, and Toronto. The question was whether the Unions were unlawfully attempting to broaden the scope of their separate bargaining units and merge them into a single national bargaining unit. The General Counsel concluded that the local unions acted lawfully because "each local's demand has a direct impact on terms and conditions of employment affecting the unit employees it represents, and neither local has conditioned reaching agreement on resolution of any matter outside its bargaining unit." [Editor's Note: Additional comments on this case in the new LawMemo Employment Law Blog.]
Armstrong Air Conditioning, Inc. (8-CA-34846) January 21, 2005
The General Counsel concluded that the Employer did not violate Section 8(a)(5) by refusing to provide the Union with bargaining notes that the Union asserts are relevant to pending or potential grievances and pending arbitrations. The Union failed to show that the bargaining notes were relevant. As to one grievance that the Union had already moved to arbitration, the notes would not be relevant to deciding whether to file a grievance, whether to go to arbitration, or what position to take. "Once arbitration has been initiated . . . a party may not utilize the duty to supply information as a mechanism for arbitral discovery." Also, the Employer reasonably contended that its notes were confidential because they contained its bargaining strategy. As to other potential grievances, the Union failed to show that the notes had any application.
IBEW Local 6 (Signal Solutions) (20-CD-736) January 19, 2005
The Union threatened an Employer with picketing. The question was whether there was reasonable cause to believe this violated Section 8(b)(4)(D) because the Union's objective was jurisdictional rather than for area standards. The General Counsel concluded that there was not cause to believe that the objective was jurisdictional. The Union never demanded, expressly or impliedly, that work be assigned to its members. Although the Union's investigation of area standards was "insubstantial," that did not establish the forbidden objective.
Pacific Maritime Association (21-CA-36465) January 25, 2005
The General Counsel concluded that the collectively bargained system for hiring 3,000 longshoremen was not discriminatory in favor of union membership. Applicants were ultimately hired through a lottery system open to the general public; that system gave a preference to applicants referred by certain employees a majority of whom were union members but a significant number of whom were non-union employees, foremen and the Employers.
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02/21/2005
by Ross Runkel at LawMemo
NLRB Law Memo 02/25/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 2 decisions.
Atlantic Structures Corp. (5-CA-31460; 344 NLRB No. 13) Virginia Beach, VA Feb. 8, 2005.
The Board granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(1) of the Act by statements made to employees; Section 8(a)(3) and (1) by discharging William Byer because he formed, joined and/or assisted Carpenters Local 613 and engaged in concerted activities; and Section 8(a)(5) and (1) by refusing to adhere to the terms and conditions of its collective-bargaining agreement with the Union and by bypassing the Union and dealing directly with unit employees regarding terms and conditions of employment.
On July 15, 2004, the administrative law judge approved an informal Board settlement agreement entered into by the Respondent, the Union, and the General Counsel. Among other things, the agreement required the Respondent to: (1) pay alleged discriminate William Beyer $11,500 plus FICA contributions; (2) make whole, with interest, all unit employees for any losses they may have suffered as a result of the Respondent's failure to pay wage rates set forth in its collective-bargaining agreement with the Union; (3) make all fringe benefit contributions required by the collective-bargaining agreement, and make all unit employees whole for any expenses resulting from the Respondent's failure to make the pension and other fringe benefit contributions, with interest to the date of the payment, as required by the collective-bargaining agreement and the accompanying fringe benefit participation agreements; and (4) escrow with the Board $25,000 to be used to make unit employees whole, with this amount due within 45 days of the signing of the agreement. To date, the Respondent has failed to comply with the settlement agreement in any manner. Accordingly, the General Counsel filed a motion for summary judgment with the Board.
(Chairman Battista and Members Liebman and Schaumber participated.)
General Counsel filed motion for summary judgment Nov. 24, 2004.
***
Delta Brands, Inc. (32-RC-5055; 344 NLRB No. 10) Modesto, CA Feb. 7, 2005.
Chairman Battista and Member Schaumber, contrary to the hearing officer, overruled the Union's (Machinists District Lodge 290, Local 1528) objections to an election conducted September 10, 2002, and certified the results of the election. The tally of ballots showed 8 for and 10 against, the Union. Member Liebman dissented.
At issue is whether the Employer maintained an unlawful rule (Rule 31) in its employee policy manual that restricted workplace solicitation. The hearing officer's initial recommendation was to set aside the election based on Rule 31. The Board thereafter remanded the case to the hearing officer to take additional evidence on the factual issue of whether Rule 31 had been disseminated to employees. In her supplemental report, the hearing officer reaffirmed her finding that the Employer had engaged in objectionable conduct as to Rule 31, which prohibits "[v]ending, soliciting, or collecting contributions for any purpose unless authorized by management." Accordingly, the hearing officer recommended that one of the Union's objections be sustained and that the election be set aside.
The majority maintained that the rule was not adopted in response to the union's organizing campaign, but that it was part of a 36-page handbook, and that only one employee received the handbook during the critical period. They wrote: "[W]e have the mere presence of an overbroad rule in a much larger document, with no showing that any employee was affected by the rule's existence, no showing of enforcement, and indeed no showing of any mention of the rule. . . . there is no showing that the mere existence of the rule could have affected the results of the election." They said that the burden is on the objecting party to prove its objections, and without such a presumption, that burden is not satisfied here. The majority stated that their decision is supported by the approach followed in Safeway, Inc., 338 NLRB 525 (2002).
In dissent, Member Liebman contended that under well-settled Board law, an employer's mere maintenance of an unlawful rule is not only objectionable conduct, but also sufficient grounds to set aside an election. She said that as the Board has explained, "the maintenance of the rule, not its date of promulgation, enforcement, or the effects it had on employees' specific conduct, is what is significant." See Pacific Beach Hotel, 342 NLRB No. 30, slip op. at 2-3 (2004).
Member Liebman further wrote that her colleagues insist that their decision is "not a departure from established Board law." She contended that the majority reallocates the burden of proof to the objecting party to show more than that the rule was maintained. In her view, no prior decision of the Board has ever required such a showing. Member Liebman found that the majority's approach to this case seeks a way around controlling precedent. She would set aside the election because she found that the Employer's rule was unlawful and because the maintenance of that rule reasonably tended to coerce employees.
(Chairman Battista and Members Liebman and Schaumber participated.)
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02/11/2005
by Ross Runkel at LawMemo
NLRB Law Memo 02/11/2005
by LawMemo.Com
- First in Employment Law
Akal Security, Inc. (25-CA-29269) January 27, 2005.
The union charged that the employer made an unlawful unilateral change in the manner in which the employer made health and welfare payments. The parties had a dispute as to whether the employer was a "successor" to a predecessor employer. The predecessor employer had made fringe benefit payments in cash. The current employer planned to put the funds into an employer-sponsored health plan. The union and employer agreed that the funds would be placed in a "temporary" 401(k) plan and that this would remain in effect until the parties agreed upon a new agreement or until the arrangement was revoked by mutual agreement. The General Counsel found that the union gave up any right it might have had to a Board order by agreeing to a mechanism for resolving the dispute without regard to the outcome of the unfair labor practice charge. Therefore, the General Counsel did not determine whether or not the employer's action was an unlawful unilateral change.
***
Graham County Electric Cooperative, Inc. (28-CA-19979) January 12, 2005.
The employer filed a lawsuit against the union under Section 301 seeking to overturn an arbitration award. The union charged that this violated Section 8(a)(1) and (3). The General Counsel disagreed. The employer's lawsuit was reasonably based, claiming that the arbitrator exceeded his authority. Under Bill Johnson's Restaurant, 461 US 731 (1983), filing a well-founded lawsuit cannot be enjoined as an unfair labor practice even if the suit was motivated by a desire to retaliate for exercising Section 7 rights.
***
Cool Wind Ventilation Corp. (29-CA-25439) January 7, 2005.
The employer filed an antitrust lawsuit, and later amended it to name the union as a defendant. The union charged that this violated Section 8(a)(1) and (3). The General Counsel disagreed. The court hearing the lawsuit upheld the legal validity of the employer's claim of the union's alleged participation in the alleged antitrust conspiracy, and the evidence adduced by the employer was enough to raise a colorable claim for a trier of fact. Therefore, the General Counsel could not say that the employer's suit was baseless in law or fact, and there was no eveidence that the employer joined the union as a defendant in order to impose the costs of the litigation on the union regardless of its outcome.
NLRB - Staff summarized 8 decisions.
Cheney Construction, Inc. (17-CA-22517; 344 NLRB No. 9) Manhattan, KS Feb. 4, 2005.
In agreement with the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to consider for hire and failing and refusing to hire three applicants because of their membership in, or support for Teamsters Local 918, or any other labor organization, and by processing union supporters' employment applications differently from the application of other individuals.
Consistent with Dean General Contractors, 285 NLRB 573 (1987), the judge ordered reinstatement and backpay for three discriminatees. While Chairman Battista and Member Schaumber recognize that Dean General represents current Board law, they are concerned as to whether that case was correctly decided. Accordingly, they left to compliance the issue of how long these employees, if they had not been discriminated against, would have remained employees of the Respondent because that will determine the amount of backpay and whether reinstatement continues to be appropriate. See Quantum Electric, Inc., 341 NLRB No. 146 (2004).
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Carpenters Local 918; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Manhattan on May 4, 2004. Adm. Law Judge Albert A. Metz issued his decision Sept. 9, 2004.
***
Fedex Freight East, Inc. (13-CA-40188; 344 NLRB No. 5) Chicago Heights, IL Jan. 31, 2005.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging Tommy Grass. It also agreed with the judge that the Respondent knew of Grass' union activities and that its decision to suspend and discharge Grass was motivated by antiunion animus. In concluding that the Respondent violated the Act, the Board wrote that it did so solely by application of Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 898 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399-403 (1983).
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Tommy Grass, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago, May 19-20, 2003. Adm. Law Judge David L. Evans issued his decision July 22, 2003.
***
Laborers (Eshbach Brothers, LP) (4-CD-1129-1; 344 NLRB No. 4) Reading, PA Jan. 28, 2005.
The Board concluded that the employees of Eshbach Brothers, LP, represented by Laborers instead of employees represented by Operating Engineers Local 542, are entitled to perform the operation of the rough terrain forklifts necessary for the masonry project at Central Bucks High
School construction site located in Bucks County, Pennsylvania. In making the award, the Board relied on the factors of collective-bargaining agreements, employer preference and past practice, and economy and efficiency of operations.
(Chairman Battista and Members Liebman and Schaumber participated.)
***
Lancaster Nissan, Inc. (4-CA-32498, 32862; 344 NLRB No. 7) East Petersburg, PA Jan. 31, 2005.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to meet with Machinists Lodge 98 for negotiations at reasonable times; failing and refusing to provide necessary and relevant information to the Union; withdrawing recognition of the Union as the collective-bargaining representative of the unit employees; and unilaterally implementing changes in the working conditions of the unit employees without notice to the Union or affording the Union the opportunity to bargain about the changes.
While he agreed with his colleagues that the Respondent failed to meet at reasonable times for bargaining, Member Schaumber believed that in her analysis of this issue, the judge should have considered whether the Union fully satisfied its bargaining obligation when it insisted on the presence at bargaining sessions of two unit employees from the small bargaining unit, thus requiring that bargaining sessions be limited to evenings and weekends, and when it failed to request bargaining during business hours on those days when at least one of these bargaining unit employees was available for bargaining. However, Member Schaumber found that the evidence as a whole supports the judge's conclusion.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Machinists Lodge 98; complaint alleged violation of Section 8(a)(1)
and (5). Hearing at Philadelphia, April 13-14, 2004. Adm. Law Judge Jane Vandeventer issued her decision Sept. 30, 2004.
***
MetFab, Inc. (16-CA-23533, et al., 16-RM-763; 344 NLRB No. 6) Houston, TX Jan. 31, 2005.
In affirming the administrative law judge's findings, the Board held that the Respondent violated Section 8(a)(1) of the Act by threatening employees that the Respondent would shut its doors if they voted in favor of Sheet Metal Workers Local 54; by offering employees improved benefits to encourage them to vote against the Union; by creating the impression among employees that their union activities were under surveillance; and by interrogating employees regarding their union sympathies.
The Board also adopted the judge's recommendations that the challenges to the ballots of Gary Jones and Roger Reid be sustained, that the challenge to the ballot of Raymond Castillas be overruled, and that a certification of results of election be issued in Case 16-RM-763. The tally of ballots for the election of March 26, 2004, showed that 5 votes were for and 6 were against the Union, with 3 determinative challenged ballots.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Sheet Metal Workers Local 54; complaint alleged violation of Section 8(a)(1). Hearing at Houston, Aug. 16 and 17, 2004. Adm. Law Judge Michael A. Marcionese issued his decision Sept. 30, 2004.
***
Pacific Bell Telephone Co. d/b/a SBC California (21-CA-36096; 344 NLRB No. 11) San Francisco, CA Feb. 4, 2005.
Chairman Battista and Member Schaumber affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by failing to provide Communications Workers Local 9509 with the following relevant information: (1) the F&T orders (customer service requests) allegedly falsified by discharged employees; (2) the notes made in the Respondent's computer program (BOSS notes) for each of the F&T orders allegedly falsified; and (3) the asset protection (internal security) report regarding Supervisor Kelly Miragliotta, who supervised some of the discharged employees and who was discharged at about the same time for problems related to F&T sales' code falsification. Member Liebman did not participate in the decision on the merits.
The Respondent claimed that the requested information contained confidential information, i.e., customer names, addresses, telephone numbers, and services provided to customers. Even assuming that the Respondent had established a legitimate and substantial confidentiality interest in that information, Chairman Battista and Member Schaumber agreed with the judge that the Respondent made no offer of accommodation. The Respondent also asserted that the Union's request for information should be deferred to the parties' contractual grievance-arbitration procedures. Chairman Battista and Member Schaumber wrote that if not bound by Board precedent, they would defer the request. However, in the absence of a three-member Board majority to overrule current Board law, they find that the judge correctly applied the Board's policy of nondeferral in information request cases.
(Chairman Battista and Member Schaumber participated.)
Charge filed by Communications Workers Local 9509; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Diego on Aug. 2, 2004. Adm. Law Judge Lana H. Parke issued her decision Sept. 23, 2004.
***
Southern California Gas Co. (31-CA-26454; 344 NLRB No. 8) Los Angles, CA Feb. 3, 2005.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to furnish Utility Workers Local 483 with the information requested on June 17, 2003, concerning operator-qualification and certification plans applicable to nonrepresented contractor employees.
The Union, in its request for information, asked the Respondent for its most recent list of contractors maintaining an operator-qualification plan, explaining that the information was relevant to the Union's administration of the collective-bargaining agreement as it related to the safety of unit employees. In making his findings, the judge relied on: (1) evidence that a substantial majority of the Respondent's contractors lacked an operator-qualification plan; (2) evidence that contractor employees were unfamiliar with operator-qualification requirements; and (3) worksite accidents that occurred in June 2002 and July 2003. In adopting the judge's decision, the Board found that the Union demonstrated a factual basis for its information request even without relying on the June 2002 and July 2003 accidents. It modified the judge's recommended order and substituted a new notice to conform with its findings.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Utility Workers Local 483; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles on June 7, 2004. Adm. Law Judge William L. Schmidt issued his decision Aug. 26, 2004.
***
Vae Nortrak North America, Inc. (27-CA-18917-1; 344 NLRB No. 12) Pueblo, CO Feb. 4, 2005.
The Board adopted the administrative law judge's recommendation and dismissed the complaint allegation that the Respondent violated Section 8(a)(3) of the Act by refusing to hire Sam Pantello.
It noted that the judge did not apply the framework for analysis of a refusal-to-hire case that the Board set forth in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). Although the judge applied slightly different standards in assessing the General Counsel's case, the Board found that his analysis comports with that of FES.
Contrary to their colleague, Chairman Battista and Member Schaumber found it unnecessary to resolve any ambiguities in the judge's credibility determinations because they found that the General Counsel did not meet his burden of proving, pursuant to FES, that antiunion animus contributed to the decision not to hire Pantello. They wrote: "Had the judge credited the testimony of the General Counsel's witnesses, the testimony demonstrated antiunion animus attributable only to Plant Manager Craig Fetty. . . . Fetty was not employed by the Respondent at the time the decision was made. . . . Under these circumstances, we agree with the judge that any antiunion attributed to Fetty would not have motivated the hiring decision as he had no part in it."
Member Liebman agreed with the judge that the General Counsel failed to meet his initial burden under FES, of showing that union animus contributed to the Respondent's decision not to hire Pantello. She relied solely on the judge's credibility resolution in favor of the Respondent's witnesses. Member Liebman disagreed with her colleagues' finding that, even if the judge had credited the General Counsel's witnesses, any union animus consequently attributed to Plant Manager Fetty against Pantello would not be imputable to Human Resources Director Dillard, who made the final decision not to hire Pantello.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Steelworkers Local 3405; complaint alleged violation of Section 8(a)(3). Hearing at Pueblo on July 20, 2004. Adm. Law Judge James L. Rose issued his decision Aug. 31, 2004.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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