NLRB Decisions

Charges filed by Jorge I. Martinez and Jose H. Gomez (individuals); complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at San Juan on March 18 and 19, 1996. Adm. Law Judge Peter E. Donnelly issued his decision on Aug. 16, 1996.

* * *

La Conexion Familiar and Sprint Corp. (20-CA-26203; 322 NLRB No. 137) San Francisco, Calif. Dec. 27, 1996. The Board overturned the Administrative Law Judge, and found that LCF violated Section 8(a)(3) and (1) of the Act by closing its facility, transferring its operations, and terminating its employees on July 14, 1994 -- one week before a union election. In so doing, the Board found that the General Counsel presented a strong prima facie case by showing that union activity at LCF was a motivating factor in the respondent's decision to close LCF. The Board stated that "although LCF was experiencing financial problems at the time of its closure, the Respondent has failed to carry its substantial burden of showing by a preponderance of the evidence that -- in the absence of the foregoing union activity -- [it] would have closed LCF on July 14 because of its financial problems." [TEXT] [PDF] [TEXT] [PDF]

The Board agreed with the judge that by threatening employees that LCF would close if the union came in, by interrogating employees about their union activities, by requesting that employees distribute antiunion buttons, by soliciting grievances from employees, and by creating the impression of surveillance of employees' union activities, LCF violated Section 8 (a)(1). In addition, the Board upheld the judge's determination that by implementing changes in working conditions because of union activity, including providing employees free food, paid time off, and raffles of items of monetary value, LCF violated Section 8(a)(3) and (1).

Recognizing that an order to reopen its LCF facility would be "unduly burdensome and thus not appropriate," the Board ordered LCF to offer each employee reinstatement to an equivalent job at an existing facility, plus moving expenses and a seniority preference. If an equivalent job is not available, the employee must be placed on a preferential hiring list. Backpay must be calculated from the date of termination to the offer of reinstatement.

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Communications Workers Local 9410; complaint alleged violations of Section 8(a)(1) and (3). Hearing at San Francisco, Calif. on Nov. 8-10 and 15-17 and Dec. 6-9 and 12-15, 1994. Adm. Law Judge Gerald A. Wacknov issued his decision on Aug. 30, 1995.

* * *

Edgar P. Benjamin Healthcare Center (1-CA-32505; 322 NLRB No. 128) Boston, Mass. Dec. 23, 1996. On a stipulated record, the Board held that the respondent violated Section 8(a)(5) by implementing a rule allowing it to inspect packages carried by employees when leaving the facility without bargaining with Service Employees Local 285. Specifically, the Board found that the package inspection rule is a mandatory bargaining subject because it is a substantial change from past practice and that the union did not waive its right to bargain about the new rule. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Teamsters Local 222 (27-CD-230; 322 NLRB No. 139) Denver, Colo. Dec. 27, 1996. The Board found that it was without authority to determine the merits of this Section 10(k) proceeding and quashed the notice of hearing. In reaching this decision, the Board determined that no reasonable cause existed to believe that Teamsters Local 222 violated Section 8(b)(4), i.e. that it used proscribed means to enforce its claims to certain disputed work. Here, a member of Teamsters Local 222 filed a grievance after his bid for a particular job was denied by the employer, Geneva Rock Products, Inc., on the ground that the disputed work must be assigned to a member of Operating Engineers Local 3. The Board held that the mere filing of an arguably meritorious grievance does not constitute "coercion" under Section 8(b)(4)(ii)(D), that the Teamsters contract arguably covers the work in dispute, and that there is no outstanding Board award under Section 10(k) adverse to the Teamsters' claim. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

* * *

Capital Cleaning Contractors, Inc. (29-CA-16518; 32 NLRB No. 138) Queens, N.Y. Dec. 27, 1996. The Board agreed with the Administrative Law Judge that Capital Cleaning Contractors was a Burns successor to Ogden Allied Services and violated the Act by failing to recognize and negotiate with the union. Further, the Board held that Capital unlawfully refused to hire former unionized Ogden employees to avoid recognizing and bargaining with the union. Capital was ordered to offer Ogden unit employees full reinstatement to their former jobs or substantially equivalent positions and to make them whole for any loss of earnings. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by Service Employees Local 32-B-32-J; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing in Brooklyn on March 2-4 and 29, 1993. Adm. Law Judge Eleanor MacDonald issued her decision on Dec. 15, 1993.

***

Temp-Rite Air Conditioning Corp. (29-CA-17530; 322 NLRB No. 134) Long Island City, N.Y. Dec. 27, 1996. Upholding the Administrative Law Judge, the Board held that charging party Naveed Zafar was discharged twice for engaging in protected concerted activity (protesting a contractually prohibited pay cut). Member Browning dissented in part on the remedy which reduced Mr. Zafar's backpay by an amount equal to the asserted value of a salvaged air-conditioner coil that he sold without the respondent's required permission. (The judge estimated the coil was worth approximately $3,000 and that the backpay should be reduced by that amount.) [TEXT] [PDF] [TEXT] [PDF]

Member Browning stated:

"Although I do not condone any misconduct on Zafar's part, I find that any compensation that Zafar may owe to the Respondent is a private matter between them, and is not, in any event, a proper deduction from backpay owed by an employer to an employee as a remedy for a discharge found to be unlawful under the National Labor Relations Act." She stated further:

"The Board certainly cannot and should not attempt to put itself in the shoes of the Respondent and impose a punishment on an unlawfully discharged employee--a punishment that the Respondent itself did not impose on Zafar in the first instance. Neither the judge nor my colleagues have cited precedent in support of such an extraordinary modification to the Board's standard make-whole remedy for unlawful discharge, and I would not grant it."

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by Naveed Zafar; complaint alleged violation of Section 8(a)(1) and (2). Hearing in Brooklyn on Jan. 10 and 11, 1994. Adm. Law Judge Raymond P. Green issued his decision on March 22, 1995.

* * *

Pine Brook Care Center, Inc. (22-CA-19358, et al.; 322 NLRB No. 130) Englishtown, N.J. November 19, 1996. The Board agreed with the Administrative Law Judge's finding that the respondent violated Section 8(a)(5) and (1) of the Act by unilaterally transferring charge nurse duties from the registered nurses' (RNs) unit represented by the union to nonunit licensed practical nurses (LPNs). The Board found merit in the General Counsel's exception to the judge's finding that the respondent's charge nurses are supervisors under Section 2(11). It held that the respondent failed to prove their supervisory status with the scant evidence presented. The respondent had contended that all RNs were supervisors yet presented no evidence to differentiate between the duties of RNs and those of charge nurses. [TEXT] [PDF] [TEXT] [PDF]

The Board also held that the respondent unlawfully withdrew recognition from the union as the collective-bargaining representative of the RNs, and unilaterally changed the terms and conditions of employment for the employees in the RN unit.

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Communications Workers Local 1040; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Newark, N.J. on January 30 and 31, 1995. Adm. Law Judge Joel P. Biblowitz issued his decision on April 7, 1995.

* * *

System One Corp. (12-CA-16870; 322 NLRB No. 124) Miami, Fla. December 19, 1996. Affirming the Administrative Law Judge, the Board rejected the employer's assertion that it is subject to the Railway Labor Act (RLA) and not the National Labor Relations Act since "the evidence does not show that the services provided by the Respondent are those traditionally performed by employees of air carriers." On this jurisdictional issue, the Board stated: "When it is clear, as it is here, that an employer is not subject to the RLA, there is no need to refer the case to the [National Mediation Board]." [TEXT] [PDF] [TEXT] [PDF]

The Board further agreed with the judge that the General Counsel did not establish that the respondent failed to give charging party Sarmiento a higher wage increase because of his protected concerted and union activity. While a supervisor's warning to Sarmiento regarding talking about unions showed some antiunion animus, the Board concluded it did not play a part in his subsequent discharge.

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Emmanuel Sarmiento, an individual; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Miami on February 5-7, 1996. Adm. Law Judge Albert A. Metz issued his decision April 26, 1996.

* * *

Refuse Compactor Service, Inc. (31-CA-18073, et al.; 322 NLRB No. 129) Los Angeles, Calif. December 19, 1996. The Board granted the General Counsel's motion to strike those portions of the amended answer seeking to relitigate issues involving discriminatees Augustine Godoy Lopez and Carlos Ramirez that were decided in the underlying unfair labor practice proceeding. It further ordered that the proceeding be remanded for a hearing on unresolved compliance specification issues. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Systems with Reliability, Inc. (6-CA-27653; 322 NLRB No. 132) Ebensburg, Pa. December 26, 1996. The Board affirmed the Admimistrative Law Judge's finding that, by discharging John Yuhas because he concertedly complained to the respondent about workplace health and safety conditions by saying that he would contact OSHA unless such conditions were improved, the respondent violated 8(a)(1) of the Act. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Duane L. Albaugh, an individual; complaint alleged violation Section 8(a)(1) . Hearing at Johnstown, Pa. on May 1, 1996. Adm. Law Judge Marvin Roth issued his decision on June 28, 1996.

* * *

Painters Local 513 (West County Glass) (14-CC-2325; 322 NLRB No. 133) St. Louis, Mo. December 26, 1996. In agreement with the Administrative Law Judge, the Board held that the respondent, by threatening Allied Builder Corporation that it would picket Allied's jobsite because it was involved in a labor dispute with West County Glass and by picketing Allied at times when West Count Glass was not working on the job, violated Section 8(b)(4)(i) and (ii)(B) of the Act. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould, Members Fox and Higgins participated.)

Charge filed by Painters Local 513; complaint alleged violation Section 8(b)(4)(i) and (ii) (B). Hearing at St. Louis, Mo. on June 4, 1996. Adm. Law Judge J. Pargen Robertson issued his decision on September 12, 1996.

* * *

733 Arnow Realty Associates, L.L.C. (AO-344; 322 NLRB No. 136) Bronx, N.Y. Dec. 23, 1996. In this advisory opinion, the Board stated that it would assert jurisdiction over the employer, the owner of a residential apartment building, because its rental income meets the $500,000 discretionary jurisdictional standard for residential buildings established by Parkview Gardens, 166 NLRB 697 (1967). [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Benteler Industries, Inc. (7-CA-37499; 322 NLRB No. 118) Grand Rapids, Mich. December 13, 1996. The Board upheld the Administrative Law Judge's finding of various unfair labor practices by the employer, including threatening and coercively interrogating employees in connection with union activities; discharging two employees and transferring another employee because of union activities; and changing the terms and conditions of employment without bargaining with the union. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould, Members Fox and Higgins participated.)

Charge filed by United Auto Workers; complaint alleged violation Section 8(a)(5), (3), and (1). Hearing at Grand Rapids, Michigan on March 4 and 5, 1995. Adm. Law Judge Karl H. Buschmann issued his decision on August 28, 1996.

* * *

Caterpillar, Inc. (33-CA-10453, et al.; 322 NLRB No. 115) Mossville, Ill. Dec. 10, 1996. The Board affirmed the administrative judge's findings that Caterpillar violated Section 8(a)(1) by restricting the appropriate display of union insignia on an employee's toolbox, interfering with an employees' right to talk to a union officer on nonworktime, and threatening an employee with discharge for engaging in protected activity. [TEXT] [PDF] [TEXT] [PDF]

Contrary to the judge, the Board found that Caterpillar violated Section 8(a)(1) by its "gag order" on employee-union representative George Boze warning him to stay out of supervisor Charles Haddad's work area and not to talk to Haddad's employees. The Board also reversed the judge and found that Caterpillar violated Section 8(a)(3) and (1) by suspending and later discharging Boze for cursing at and striking Haddad on the upper part of his body with a pointed finger. The Board stated that Boze's actions were "spontaneous and impulsive" and "triggered by Haddad's own inflammatory conduct." For these reasons, the Board found that Boze's insubordination was provoked and that his conduct was not of such a "flagrant or serious character as to be `indefensible in the context of the grievance involved,' thereby depriving him of the protections of the Act and rendering him unfit for further service."

In addition, the Board reversed the judge and found that Caterpillar violated Section 8(a)(1) by threatening to discharge employee James Hendricks after he wore a black UAW armband to commemorate the 1-year anniversary of the strike and after Haddad asked Hendricks why he did not tell Haddad that certain equipment was not functioning properly and Hendricks answered because "you didn't ask me." The Board concluded that the comment was ambiguous and was not shown to be part of an unprotected work-to-rule scheme, and that "Haddad's threat to discharge Hendricks, occurring as it did on the heels of his protected activity of wearing union-related insignia," violated Section 8(a)(1).

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by UAW Local 974; complaint alleged violations of Section 8(a)(1), (3) and (4). Hearing at Peoria, primarily from June 23 to Aug. 23, 1994. Decision issued by Adm. Law Judge James L. Rose, May 18, 1995.

* * *

Johnson Controls, Inc., Systems and Services Division (8-RC-15017; 322 NLRB No. 109) Cleveland, Ohio December 9, 1996. In this Decision and Direction of Election, the Board ordered an election of a new and different bargaining unit even though it includes some employees who are part of a nationwide 8(f) agreement. The 8(f) unit was limited to the fitters who are covered by a labor contract with the union (United Association). Thus, the Board pointed out, the present petition was not an attempt to add previously excluded employees into an existing unit, and the circumstances do not warrant ordering a self-determination election. [TEXT] [PDF] [TEXT] [PDF]

The Board ordered that an election by secret ballot be held among the employees in the unit found appropriate. Applying the Daniel/Steiny formula, it stated that in addition to those employees hired and working on the eligibility date, "also eligible to vote are those in the unit who have been employed for 30 working days or more within the 12 months and have been employed for 45 working days or more within the 24-month period immediately preceding the eligibility date, and who have not been terminated for cause or quit voluntarily prior to the completion of the last job for which they were employed."

(Chairman Gould and Members Browning and Higgins participated)

* * *

International Union of Operating Engineers, Local 318 and Construction and General Laborers' Local 773 (14-CD-933-1, -2; 322 NLRB No. 110) Cape Guirardeau, Mo. December 12, 1996. In this Section 10(k) proceeding, the Board awarded the work in dispute (operation of forklifts at a prison construction site) to Laborers Local 773, relying on the factors of employer preference, and economy and efficiency of operations. Noting that the employer is bound by two agreements which provide for conflicting methods of resolving jurisdictional disputes, the Board concluded that no agreed-on method existed for voluntarily resolving the dispute. Finally, the panel found reasonable cause to believe that both unions had violated Section 8(b)(4)(d) by threatening the employer with an object of forcing it to assign the disputed work. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Overnite Transportation Company (3-RC-10453; 322 NLRB No. 122) Tonawanda, N.Y. December 13, 1996. In a Decision Denying Motion for Reconsideration, the Board rejected Overnite's contention that the Board's recent decisions involving other facilities of the employer have been inconsistent and reflect an "accommodation" for the union's organizing efforts. The employer argued that when the union seeks to exclude mechanics, and the employer objects, the Regional Director finds for the petitioner and the Board denies the employer's request for review. It further argued, however, that when the union seeks to include mechanics and the employer seeks to exclude the mechanics, the Regional Director agrees with the petitioner and the Board again denies the employer's request for review. In the instant case, the Regional Director found that mechanics should be included in the unit but the Board reversed that decision. [TEXT] [PDF] [TEXT] [PDF]

The Board held:

"To accept the Employer's contention that a union may not seek different appropriate units at the Employer's various terminals would stand on its head the statutory concept of an appropriate unit; it would require the Board to decide which is the best, or most appropriate unit at each terminal. We do not believe that Congress intended such an outcome, especially since Congress set forth more than one appropriate unit in Section 9(b). Moreover, the purpose of Section 9(c)(5) was not to prohibit the Board from choosing between two appropriate units, as the Employer would interpret that section; it was intended to prevent fragmentation of appropriate units into smaller inappropriate units. Here, the requested units are not fragmented or inappropriate groupings of a larger appropriate unit; they are units which the Board historically has found appropriate. Not even the Employer contends that the units requested are an arbitrary or capricious grouping of its employees."

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Caterpillar, Inc. (33-CA-104]4, 10415; 322 NLRB No. 116) Denver, Colo. Dec. 10, 1996. The Board, noting that during a 2-year period the employer repeatedly engaged in numerous serious unfair labor practices, agreed with the administrative law judge that a narrow cease-and-desist order would not sufficiently deter the employer's future misconduct and that its proclivity to violate the Act warranted the issuance of a broad remedial order. The Board wrote: "The Respondent's pattern of unlawful conduct convinces us that, without proper restraint, the Respondent is likely to persist in its attempts to interfere with employees' statutory rights." In this case, the Board affirmed the judge's finding that the employer violated Section 8(a)(1) of the Act by prohibiting the display of union insignia at its Denver, Colorado facility and threatening employees with indefinite suspension for exercising their lawful right to strike; and violated Section 8(a)(3) by suspending an employee for engaging in protected activity and refusing to accept the unconditional offer of unfair labor practice strikers to return to work. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Auto Workers (UAW); complaint alleged violation of Section 8(a)(1) and (3). Hearing at Denver, May 22-23, 1995. Adm. Law Judge James L. Rose issued his decision June 24, 1996.

***

Wells Fargo Armored Services Corp. (34-CA-7059, et al., 34-RC-1347; 322 NLRB No. 106) Bloomfield, Conn. Nov. 29, 1996. The Board agreed with the administrative law judge that the employer violated the Act by refusing to provide United Armed Guards of America with the financial information it requested during negotiations for an initial collective-bargaining agreement covering the armored unit and refusing to provide the union with certain information at either the employer's Bloomfield, Conn., or Lyndhust, N.J. facilities. The Board further found, contrary to the judge, that the employer unlawfully refused to provide the union with requested financial information for 1993. The Board extended the union's certification year in the armored unit for 6-months, starting with the date on which the employer provides the union with the requested information. [TEXT] [PDF] [TEXT] [PDF]

In affirming the judge's recommended dismissal of the complaint allegation that the employer unlawfully discharged Louis Monczka, the Board found, unlike the judge, that the employer displayed animus against Monczka because of his union activity. However, the Board agreed with the judge that the employer established that it would have discharged Monczka even in the absence of his union activity because of his ongoing failure to provide the employer with requested information about his previous periods of employment. In Case 34-RC-1347, the Board affirmed the judge's recommended overruling of the objection to the election in the ATM unit. The objection, based on Monczka's discharge, is the only objection pending. The Board certified that United Armed Guards of America is not the exclusive representative of the employer's ATM employees.

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by United Armed Guards of America, complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Hartford, Dec. 11-13, 1995 and Feb. 8, 1996. Adm. Law Judge Joel P. Biblowitz issued his decision April 29, 1996.

***

Mariah, Inc. (9-RC-16783, 322 NLRB No. 114) Columbus, Ohio Nov. 25, 1996. The full Board denied the employer's request for review of the Regional Director's decision upholding the Hearing Officer's refusal to permit the employer to introduce evidence allegedly relevant to the issues of whether a different unit might be appropriate and whether striking employees are eligible to vote. Stating that the Hearing Officer exercised her authority to exclude irrelevant evidence and to permit the employer to make an offer of proof, the Board agreed with the Regional Director's finding that the "appropriate hearing" requirement was met in this case. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning, Fox and Higgins participated.)

***

585 Associates and Lemle & Wolff; Inc. (AO-343; 322 NLRB No. 117) Bronx, N.Y. Dec. 11, 1996. In this advisory opinion, the Board stated that it would assert jurisdiction over the petitioners, the owners of a residential apartment building and the managing agent, because they met the $500,000 discretionary jurisdictional standard for residential buildings established by Parkview Gardens, 166 NLRB 697 (1967). [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

***

Ferguson-William, Inc. (16-CA-17123(1-2), et al.; 322 NLRB No. 113) Ingleside, Texas Dec. 11, 1996 The Board approved the administrative law judge's findings that the respondent violated Section 8(a)(1) of the Act by engaging in coercive and threatening actions including interrogating employees about their union activities and creating the impression of surveillance. The judge also found, with Board approval, that the respondent violated Section 8(a)(1) and (3) by discharging Billy Watson, Joseph Miller, and Judith Haskins because of their union activities and by closely supervising Haskins' work. The Board agreed with the judge that the respondent did not violate Section 8(a)(4) when it discriminatorily laid off Haskins and subsequently refused to recall her. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Electrical Workers (IBEW) Local 278, complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Corpus Christi, Texas, Nov. 13-13, 1995 and Feb. 13-16, 1996. Decision issued by Adm. Law Judge Albert A. Metz, April 25, 1996.

* * *

County of Alameda (32-WH-4, 322 NLRB No. 105) Alameda County, Calif. Nov. 29, 1996. The Board certified the Professional Association of County Employees (PACE)/Local 21 as a bona fide representative for purposes of Section 7(b) of the Fair Labor Standards Act (FLSA) of a group of employees working for the County of Alameda. The Association of County Employees (the intervenor) objected to the certification because of an ongoing dispute between it and the employer regarding the intervenor's right under state law to represent the unit employees as individuals with respect to their working conditions despite the fact that Local 21 is the recognized collective-bargaining representative of the unit, and because the employer is a State "political subdivision" exempt from Board jurisdiction. The Board found it unnecessary to resolve the intervenor's dispute with the employer, noting that its certification merely permits the employer and Local 21 to negotiate terms and conditions of employment which vary from the overtime provisions of the FLSA. The Board also noted that its authority to issue the instant certification is derived from Section 7(b) of the FLSA, and therefore Section 2(2) of the NLRA regarding political subdivisions exempt from the Board's jurisdiction is inapplicable. [TEXT] [PDF] [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

* * *

State Equipment, Inc. (9-CA-32099, et al., 9-RC-16457; 322 NLRB No. 107) Cross Lanes, W.Va. Nov. 29, 1996. The Board affirmed the administrative law judge's findings that the employer violated the Act by interrogating employees about their knowledge of union organizing activities and sympathies, threatening reduced advancement opportunity and job loss, telling an employee that it could not give raises if employees selected the union as their collective-bargaining representative, asking an employee to ascertain and disclose to the employer the union membership and activities of other employees, discharging and issuing warnings to employees because of their union activities or other protected concerted activities and because they gave testimony under the Act. [TEXT] [PDF] [TEXT] [PDF]

In Case 9-RC-16457, the Board sustained the challenges to the ballots of Harold Kirk and Johnny Bailey, overruled the challenges to the ballots of David Westfall, Raymond Smith, Ty Landes, Virgil Elliott, and John Cremeans and directed that their ballots be opened and counted, and that the Regional Director issue a revised tally of ballots. The original tally of ballots for the election held on November 4, 1994 shows 8 votes for, and 7 votes against the union, with 7 challenged ballots. No objections to the election were filed.

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by the Mine Workers, complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Charleston, April and May 1995 and March 1996. Adm. Law Judge William F. Jacobs issued his decision May 28, 1996.

* * *

Carpenters District Council of Detroit and Southeastern Michigan (7-CC-1650; 322 NLRB No. 104) St. Clair, Mich. Nov. 29, 1996. The Board affirmed the administrative law judge's dismissal of allegations that the union violated Section 8(b)(4) of the Act by encouraging workers employed by the Douglas Company and its subcontractors to strike and by coercing Douglas to stop doing business with one of its subcontractors. Specifically, the judge found that the General Counsel failed to show that the union's picketing also had a proscribed secondary object directed toward Douglas. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by the Douglas Company; complaint alleged violation of Section 8(b)(4). Hearing at Detroit, April 15, 1996. Decision issued by Adm. Law Judge Steven M. Charno, June 6, 1996.

* * *

Medeco Security Locks, Inc. (11-CA-16215; 322 NLRB No. 108) Salem, Va. Nov. 29, 1996. In this supplemental decision and order, the Board affirmed the administrative law judge's findings that employees William Folden and Mike Furrow were truthful witnesses and the judge's decision to credit their testimony over that of Manager Stephen Bullock. On April 15, 1996, the Board remanded the case to the judge for specific findings of fact and credibility determinations regarding these witnesses. [TEXT] [PDF] [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

Adm. Law Judge Howard I. Grossman issued his supplemental decision on May 9, 1996, and his second supplemental decision on Sept. 12, 1996.

* * *

American National Red Cross (6-CA-26951; 322 NLRB No. 99) Johnstown, Pa. Nov. 26 1996. Affirming the administrative law judge, the Board held that the respondent violated Section 8(a)(1) of the Act by disciplining and discharging employee Terri Dolan and by threatening her with unspecified reprisals because she engaged in protected concerted activities. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by Terri Dolan, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Johnstown, July 17-19, 1995. Decision issued by Adm. Law Judge Judith A. Dowd, July 31, 1996.

* * *

TLC-The Industrial Company, Southeast, Inc. (9-CA-32484, 32502; 322 NLRB No. 103) Savannah, Ga. Nov. 29, 1996. The Board, in affirming the administrative law judge's finding that the employer violated Section 8(a)(3) and (l) of the Act by its failure to consider union-affiliated employment applicants, noted that both independent evidence of animus and evidence of disparate treatment of union-affiliated applicants and those without known union affiliation support the General Counsel's prima facie case that hostility towards union members was a motivating factor in the employer's treatment of those applicants. [TEXT] [PDF] [TEXT] [PDF]

The amended consolidated complaint contained also an 8(a)(3) and (1) refusal-to-hire allegation. The judge did not include in his findings a refusal-to-hire violation. In the absence of exceptions thereto, the Board adopted pro forma the judge's disposition.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Plumbers Local 452; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Winchester, Ky., Aug. 17 and Nov. 13-14, 1995, and in Lexington, Ky. on Jan. 16, 1996. Adm. Law Judge Leonard M. Wagman issued his decision April 5, 1996.

* * *

Genovese and DiDonno, Inc. (34-CA-7357; 322 NLRB No. 101) Berlin, Conn. Nov. 29, 1996. The Board agreed with the administrative law judge that the union had more than a mere suspicion that G.D.S. Contracting Corp. was the employer's nonunion operation and that the employer violated Section 8(a)(5) and (l) of the Act by failing to provide Carpenters Local 43 with requested information about both businesses that was necessary and relevant to the union's performance of its duties as the collective-bargaining representative. The Board found the union's request for information was an ongoing request that was still pending about 2 months later when the union obtained records of state-required, certified payrolls and that the payroll records "demonstrate that the Union's suspicion of the Respondent's double breasting operation was reasonable." [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Carpenters Local 43; complaint alleged violation of Section 8(a)(1) and (l). Hearing at Hartford on July 18, 1996. Adm. Law Judge Joel P. Biblowitz issued his decision November 29, 1996.

* * *

Syscon International, Inc. (25-CA-23258; 322 NLRB No. 93) South Bend, Ind. Nov. 19, 1996. The Board held, in agreement with the judge, that the employer violated Section 8(a)(5) and (l) of the Act by withdrawing recognition from Electrical Workers IBEW Local 1392 during the term of the parties' 1993-1995 collective-bargaining agreement. In its exceptions, the employer contended that the union's dues-checkoff authorizations are illegal under Indiana state law because they are not revocable at any time. The Board disagreed, noting that fundamental principles of federal preemption require that the state law must yield to the statutory provisions of the Act. The Board wrote: "Sec. 302(c)(4) of the Labor Management Relations Act . . . specifically permits dues-checkoff authorizations so long as they are not `irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner[.]' " [TEXT] [PDF] [TEXT] [PDF]

Chairman Gould agreed that state law is preempted by the Act, but found it unnecessary to rely on Lockheed Space Operations, 302 NLRB 322, 324 (1991), and expressed no view as to its viability.

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Electrical Workers IBEW Local 1392; complaint alleged violation of Section 8(a)(1) and (5). Hearing at South Bend, June 22-23, 1995. Adm. Law Judge William Jacobs issued his decision March 14, 1996.

* * *

New Surfside Nursing Home (29-CA-18945; 322 NLRB No. 91) Far Rockaway, N.Y. Nov. 18, 1996. Applying Holyoke Water Power Co., 273 NLRB 1369 (1985), enfd. 778 F. 2d 49 (1st Cir. 1985), the Board agreed with the administrative law judge that the employer unlawfully denied access to its facility to the union's health and safety representative. The Board applied Holyoke as the controlling precedent because none of the parties excepted to its application by the judge in finding that the employer illegally denied access. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Hotel, Hospital, Nursing Home and Allied Services Local 144; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on Feb. 5, 1996. Adm. Law Judge Steven Davis issued his decision May 16, 1996.

* * *

1151 Elder Associates, L.L.C (AO-342; 322 NLRB No. 95) Bronx, N.Y. Nov. 21, 1996. In this advisory opinion, the Board stated that it would assert jurisdiction over the employer, a residential apartment building manager, because its business met the $500,000 discretional jurisdictional standard for residential apartment buildings. [TEXT] [PDF] [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

* * *

Cable Car Charters (20-CA-25377, 25789; 322 NLRB No. 92) San Francisco, Calif. Nov. 21, 1996. The Board affirmed the administrative law judge's findings that the respondent violated Section 8(a)(1) by, inter alia, coercively interrogating employees about union activities, threatening employees with harsh discipline and job loss if they supported the union, and telling employees it would never negotiate with the union; violated Section 8(a)(3) and (l) by, inter alia, discharging, discontinuing work assignments, or reducing work hours of employees to discourage union membership; and violated Section 8(a)(1) and (5) by refusing to bargain with the union. No exceptions were filed to the judge's dismissal of other alleged violations. The Board did not agree with the judge's dismissal of the allegation that the respondent violated Section 8(a)(1) by surveilling employees' union activities because the judge failed to make explicit credibility resolutions. Thus, the Board severed and remanded this issue to the judge to make credibility resolutions. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Freight Checkers Local 856; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at San Francisco, for 18 days between Aug. 23-Oct. 26, 1996. Decision issued by Adm. Law Judge William L. Schmidt, March 29, 1996.

* * *

V.R.D. Decorating, Inc. (3-CA-18741, 322 NLRB No. 86) Rochester, N.Y. Nov. 21, 1996. The Board upheld the administrative law judge's finding that the employer violated Section 8(a)(3) and (l) of the Act by refusing to consider for employment and refusing to hire job applicants Christopher Gorman, Edward Mullaney, and Kevin Rice because of their membership in or concerted activities for Painters Local 150. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Painters Local 150; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Rochester on June 5, 1995. Adm. Law Judge Robert T. Snyder issued his decision Jan. 30, 1996.

* * *

Power Systems Analysis, Inc. (8-CA-27465, 27776; 322 NLRB No. 85) Navarre, Ohio Nov. 13, 1996. The administrative law judge found, and the Board approved, that the respondent did not violate Section 8(a)(3) and (l) of the Act when it terminated and did not recall an employee who engaged in union activities. In so doing, the judge stated that "while the circumstances warrant suspicion as to the Respondent's motivation, I cannot find that, absent his union activity, he would [not have been] laid off or that he would not have been recalled." The judge thus found that the respondent sustained its burden "albeit by a similarly slender margin." [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Electrical Workers (IBEW) Local 71; complaint alleged violation of Section 8(a)(3) and (l). Hearing at Canton, Ohio, Feb. 5-6, 1996. Decision issued by Adm. Law Judge Michael O. Miller, April 8, 1996.

* * *

Frances House, Inc. (33-CA-11227; 322 NLRB No. 78) Kankakee, Ill. Nov. 14, 1996. The Board agreed with the administrative law judge that the respondent violated Section 8(a)(1) of the Act by coercively interrogating and threatening its employees for engaging in protected activities; and violated Section 8(a)(1) and (3) by discharging employee Eric Amazan for engaging in union activities. The judge stated that the respondent's "proffered reasons for the discharge were contradictory, shifting, false, disparate and pretextuous." [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by AFSCME Council 31, complaint alleged violations of Section 8(a)(1) and (3). Hearing at Kankakee, Ill., Feb. 14-15, 1996. Decision issued by Adm. Law Judge Thomas R. Wilks, June 17, 1996.

* * *

Lampi, L.L.C. (10-CA-28174, et al.; 322 NLRB No. 81) Huntsville, Ala. Nov. 13, 1996. The Board agreed with the administrative law judge's conclusions that the respondent violated Section 8(a)(1) of the Act by maintaining a rule against employees discussing pay with other employees, by interrogating employees about union activities, and by granting wage increases to influence employees' votes in a union election. The Board set aside the election results and ordered a second election. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Electrical Workers (IBEW) Local 558, complaint alleged violations of Section 8(a)(1). Hearing at Huntsville, March 13-15, 1996. Decision issued by Adm. Law Judge Albert A. Metz, May 22, 1996.

* * *

Pelican Management, Inc. (AO-341; 322 NLRB No. 77) Bronx, N.Y. Nov. 12, 1996. In this advisory opinion, the Board stated that it would assert jurisdiction over the employer, a property management company, because it met the $500,000 discretionary jurisdictional standard for residential buildings established by Parkview Gardens, 166 NLRB 697 (1967). [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Basic Metal and Salvage Co., Inc. (29-CA-19324, 19597; 322 NLRB No. 75) Brooklyn, N.Y. Nov. 8, 1996. The Board upheld the administrative law judge's findings that the employer violated Section 8(a)(1), (3), and (5) of the Act by various acts such as soliciting employees to sign a petition indicating that they did not want the union; selecting Mark Holder for layoff because he supported Waste Material Sorters, Trimmers and Handlers Local 958; and bypassing the union and dealing directly with employees. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Waste Material Sorters, Trimmers and Handlers Local 958 and Mark Holder, an individual; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Brooklyn, March 25-26, 1996. Adm. Law Judge Eleanor MacDonald issued her decision June 21, 1996.

* * *

Don Lee Distributor, Inc. (Warren), et al. (7-CA-31719(2)-(7), et al.; 322 NLRB No. 82) Waterford, Mich. Nov. 8, 1996. The Board affirmed the administrative law judge's finding that the respondents, six beer distributors, violated Section 8(a)(5) and (l) of the Act by engaging in joint bargaining without the union's knowledge or consent. The respondents, who were formerly members of various multiemployer associations that had successive contracts with Teamsters Local 1038, resigned from a multiemployer association to which they had all belonged and, in 1990, entered into a ``mutual aid pact'' in which they agreed to 22 ``minimum objectives . . . for a new Collective Bargaining Agreement.'' The Board said in finding a violation: ``When either employers or unions which have in the past bargained in separate units begin, without the consent of the other side, to bargain jointly as if bargaining for a single contract, they are engaging in unlawful insistence on a nonmandatory subject.'' The Board further stated: [TEXT] [PDF] [TEXT] [PDF]

Because deviation from the objectives could be achieved only by a majority vote, three Companies could veto another company's contract, and enforce this veto with the agreed-on financial penalty. By entering into the pact, therefore, each Company effectively lost its freedom to make the ultimate decision regarding provisions of its contract with the Union, ceding that decision to the other Companies as a group. In keeping with that agreement, as the judge found, the Companies did bargain in effect as a single group up to and including their implementation of final offers.

The Board did not reach the issue of whether the respondents' implemented proposals on casual employees were unlawful under McClatchy Newspapers, 299 NLRB 1045 (1990), remanded 964 F.2d 1153 (D.C. Cir. 1992), decision on remand 321 NLRB No. 174 (Aug. 27, 1996), and Colorado-Ute Electric Assn., 295 NLRB 607 (1989), enf. denied 939 F.2d 1392 (10th Cir. 1991), cert. denied 112 S.Ct. 2300 (1992). The Board, agreeing with the judge's basis for finding no violation with respect to probationary employees, did not pass on the cited cases.

(Members Browning, Fox, and Higgins participated.)

Charges filed by Teamsters Local 1038; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit on about 60 days between Nov. 16, 1992 and Oct. 26, 1993. Adm. Law Judge Benjamin Schlesinger issued his decision Dec. 1, 1994.

* * *

McGaw of Puerto Rico, Inc. (24-CA-6680, et al.; 322 NLRB No. 73) Sabana Grande, P.R. Oct. 31, 1996. The administrative law judge found, with Board approval, that the employer violated Section 8(a)(3) and (l) of the Act in various respects including laying off employees because of their activities for the Congreso de Uniones Industriales de Puerto Rico, changing the way it makes shift assignments, and threatening employees with a loss of wages and to have them blacklisted. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Congreso de Uniones Industriales de Puerto Rico; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hato Rey, June 26-30, 1995. Adm. Law Judge George Aleman issued his decision May 22, 1996.

* * *

Operating Engineers Local 825 (Enserch Environmental Corp.; Foster Wheeler Environmental Corp., and Foster Wheeler USA Corp., Single Employer) (4-CB-7296, et al.; 322 NLRB No. 74) Bridgeport, N.J. Oct. 31, 1996. Affirming the administrative law judge's decision, the Board dismissed complaint allegations that the union violated Section 8(b)(1)(A) and (2) of the Act by maintaining agreements with the employers that discriminated in favor of employees referred from the respondent's hiring hall and against employees hired directly by the employers. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by individuals; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Philadelphia, March 26-27, 1996. Adm. Law Judge Richard H. Beddow, Jr. issued his decision June 7, 1996.

* * *

Britt Metal Processing, Inc. (12-CA-16006, 16734; 322 NLRB No. 69) Miami, Fla. Oct. 28, 1996. The Board affirmed the administrative law judge's conclusion that the employer violated Section 8(a)(5) and (l) of the Act by unilaterally reducing its matching contributions to its employees' 401(k) retirement plan without prior notice to and affording the Machinists International an opportunity to bargain about the changes. In defense, the employer asserted that it was not obligated to bargain because it decided to reduce the contributions prior to the advent of the union. The Board extended the bargaining year to provide the union the benefit of its certified status and amended the remedy to include the provision for extending the bargaining period for 11 months on resumption of good-faith bargaining between the parties. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by the Machinists International; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Miami on May 25, 1995. Adm. Law Judge Albert A. Metz issued his decision Aug. 11, 1995.

* * *

Sullivan County Electric, Inc. (3-CA-18054, et al.; 322 NLRB No. 68) Bradley, N.Y. Oct. 28, 1996. The Board found the employer's answer to the compliance specification was substantively deficient, concluded that the net backpay due discriminatee Michael McCabe is $2,065.80 as stated in the compliance specification, and ordered the employer to pay the amount. By unpublished order dated September 12, 1994, the Board ordered the employer to make McCabe whole for any loss of earnings suffered as a result of the employer's unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. On March 3, 1995, the U.S. Court of Appeals for the Second Circuit entered a judgment enforcing the Board's order. Subsequently, the Acting Regional Director issued a compliance specification and notice of hearing because a controversy arose over the amount of backpay due under the terms of the Board's order. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

General Counsel filed motion for summary judgment Aug. 13, 1996.

* * *

Laborers Local 294 (Benco Contracting & Engineering, Inc.) (32-CB-4126, 4228; 322 NLRB No. 67) Fresno, Calif. Oct. 28, 1996. The Board granted the General Counsel's motion for partial summary judgment as to paragraphs 1-8 of the amended compliance specification and remanded the proceeding to the Regional Director to schedule a hearing before an administrative law judge limited to the paragraphs as to which summary judgment was not granted. On July 6, 1995, the Board adopted, in the absence of exceptions, the administrative law judge's decision directing the union to make whole hiring hall registrants for any lost earnings resulting from the union's unlawful referral of three individuals to construction jobs in its jurisdiction. On November 9, 1995, the U.S. Court Appeals for the Ninth Circuit entered a judgment enforcing the Board order. This supplemental proceeding is to determine the backpay due and who should receive it. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

General Counsel filed motion for partial summary judgment June 18, 1996.

* * *

Carpenters Local 624 (1-CD-968; 322 NLRB No. 55) Weymouth, Mass. Oct. 30, 1996. The Board determined that employees of T. Equipment Corporation and C.R.C. Co., Inc. represented by Carpenters Local 624, rather than those represented by Laborers Local 721, are entitled to perform the work in dispute--stripping reusable panel forms on the commuter rail line extension known as the Old Colony Railway project which will run from Braintree, Massachusetts to Plymouth, Massachusetts. The Laborers filed a contractual grievance against the employers alleging breach of the Laborers' Heavy and Highway collective-bargaining agreement. Richard Nihtila, assistant business agent for the carpenters, claimed the work in dispute and threatened action, including coercion by a work stoppage, if the employers displaced the carpenters performing the work. Employees represented by the Laborers caused a general work stoppage on both the CRC and T. Equipment sites through their attempt to enforce their claim to the disputed work. The Laborers also made oral claims for the work to the employers' officials. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

* * *

Service Employees Local 87 (GMG Janitorial) San Francisco, Calif. Oct. 25, 1996. The administrative law judge found, and the Board agreed, that by the conduct of Jorge Arrospide as a GMG supervisor and/or agent and special agent for Local 87, including directly and/or inferentially threatening employees with job loss, the respondent violated Section 8(b)(1)(A) of the Act. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by GMG Janitorial, Inc., complaint alleged violation of Section 8(b)(1)(A). Hearing at San Francisco, Aug. 14, 17-18, and Nov. 8, 1995. Decision issued by Adm. Law Judge Joan Wieder, July 2, 1996.

* * *

North Jersey Newspapers Company (22-RC-11188; 322 NLRB No. 60) Butler, N.J. Oct. 18, 1996. The Board reversed the Regional Director's conclusion that four foremen should be excluded as supervisors from the unit found appropriate (pressroom and prepress lithographic employees) because the petitioner failed to show that the foremen are supervisors and there was no other basis for excluding them. Thus, it was not necessary for the Board to consider the Regional Director's view that the supervisory-ratio factor supports the supervisory status of the foremen, because this is a nonstatutory, secondary indicium. The employer, publisher of 1 daily newspaper and approximately 20 weekly newspapers in the northern New Jersey area, publishes several of the weekly newspapers at its Butler, New Jersey location, the only facility involved here. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

American Red Cross Blood Services Greater Chesapeake and Potomac Region (5-RC-14295; 322 NLRB No. 59) Baltimore, Md. Oct. 21, 1996. The Board set aside the election conducted by mail with ballots returned to the Regional Office by March 18, 1996, agreeing with the hearing officer that the employer engaged in objectionable conduct by conducting two ``captive audience'' meetings among its employees on March 4, 1996. Machinists International lost the election 51-41. Pursuant to the parties' stipulated election agreement, the Regional Office mailed ballots to voters on March 1, 1996. The hearing officer found that the employer violated the Peerless Plywood Co., 107 NLRB 427 (1953) prohibition against employers and unions ``making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election.'' The Board said in rejecting the employer's argument that the Regional Office failed to provide it with a formal notice of the date and time when the ballots would be mailed to voters: ``The Stipulated Election Agreement, binding on all parties, provided sufficient written notice to the parties about the election.'' [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

United Federation of Teachers Welfare Fund (2-CA-27180, 27375; 322 NLRB No. 57) New York, N.Y. Oct. 22, 1996. The administrative law judge found, with Board approval, that the employer violated Section 8(a)(1) of the Act by threatening its employees with reprisals and discharge if they utilized Industry Workers Local 424 to represent them regarding discrimination allegedly practiced against them at the employer's facility; and violated Section 8(a)(3) and (l) by decreasing the work responsibilities of and discharging Valquira Green because she utilized the union to represent her in meetings with the employer. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Industry Workers Local 424; complaint alleged violation of Section 8(a)(1) and (3). Hearing held Jan. 24-26, 1996. Adm. Law Judge Jesse Kleiman issued his decision May 16, 1996.

* * *

Dual Temp Co., Inc. (4-CA-23191, 23209, 4-RC-18418, 18421; 322 NLRB No. 44) Allentown, Pa. Sept. 30, 1996. The Board affirmed the conclusion of the administrative law judge that an election lost by the union should be set aside and that a second election be conducted because the respondent coercively interrogated an employee in violation of Section 8(a)(1), an action which had more than a de minimus effect on the election results. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Sheet Metal Workers Local 19, Steamfitters Local 420, Plumbers Local 690, and Electrical Workers (IBEW) Local 375. Complaints alleged violations of Section 8(a)(1). Consolidated hearing at Philadelphia, July 25-26, 1995. Decision issued by Adm. Law Judge Karl H. Buschmann, June 25, 1996.

* * *

OBARS Machine & Tool Co. (8-CA-27412; 322 NLRB No. 45) Toledo, Ohio Sept. 30, 1996. In accordance with the administrative law judge, the Board held that the respondent violated Section 8(a)(1) of the Act by informing an employee that he had been laid off because of his union activities. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Machinists District Lodge 57; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Toledo, March 13, 1996. Decision issued by Adm. Law Judge Richard A. Scully, July 24, 1996.

* * *

The Lincoln Park Zoological Society (13-CA-33085; 322 NLRB No. 42) Chicago, Ill. Sept. 30, 1996. The administrative law judge found, and the Board agreed, that the respondent, the successor employer to the Chicago Park District, violated the Act by failing and refusing to recognize and bargain with the union. [TEXT] [PDF] [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

Charge filed by Public Service Employees Local 46; complaint alleged violation of Section 8(a)(5) and (l). Hearing at Chicago, May 1, 1996. Adm. Law Judge Robert A. Giannasi issued his decision July 5, 1996.

* * *

McClain of Georgia, Inc. (10-CA-28231-3, et al.; 322 NLRB No. 58) Macon, Ga. Oct. 17, 1996. The Board issued a broad cease-and-desist order because the employer engaged in egregious and widespread misconduct including numerous threats of plant closure, repeated interrogations of employees, soliciting employees to spy on each other's union activities, changing working conditions, and laying off employees. In addition, the employer unlawfully converted Aric Evans from hourly to salaried status in order to remove him from the status of an employee protected by the Act, solicited Evans to commit unfair labor practices, imposed more onerous working conditions and job duties on him, and discharged Evans because he refused to commit unfair labor practices. The Board agreed with the judge that Evans is not a supervisor, finding that his duties, including the assignment of work, did not involve the exercise of independent judgment. The Board modified the judge's decision by ordering that the employer remove from its files any reference to the unlawful warnings to employees and by including a make-whole remedy for the employees affected by the employer's unlawful change in its recall policy. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Iron Workers Local 616; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Macon, Oct. 23-26 and Oct. 31-Nov. 3, 1995. Adm. Law Judge Philip P. McLeod issued his decision April 26, 1996.

* * *

Royal Manor Convalescent Hospital, Inc. (20-CA-26278, 26332, 20-RC-17051; 322 NLRB No. 56) Sacramento, Calif. Oct. 17, 1996. The administrative law judge found, and the Board agreed, that the respondent violated Section 8(a)(1) of the Act by, inter alia, interrogating employees, creating the impression of surveillance, and informing employees that the union would not be able to save their jobs. The Board upheld the judge's dismissal of an 8(a)(1) allegation that the respondent unlawfully granted a wage increase prior to the election. In so doing, the Board stated that ``[a]lthough we acknowledge the suspicious nature of the wage increase's scope and timing, we emphasize that, based on the judge's credited testimony,'' there was ``a business necessity for the wage increase warranting dismissal of the 8(a)(1) allegation.'' [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Service Employees Local 22; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Sacramento, June 1-2, 1995. Decision issued by Adm. Law Judge Burton Litvack, March 26, 1996.

* * *

Rest Haven Nursing Home (15-RC-7940; 322 NLRB No. 33) Bogalusa, La. Sept. 26, 1996. The Board reversed the Acting Regional Director's decision that the employer's licensed practical nurses (LPNs) are statutory supervisors, citing its decision in Ten Broeck Commons, 320 NLRB No. 65, that LPNs, whose duties were similar to those of the LPNs at issue here, were not statutory supervisors. The Board found here that the LPNs do not exercise Section 2(11) supervisory authority with respect to directing the work of certified nursing assistants (CNAs), assigning and transferring CNAs, or disciplining CNAs. The Board reinstated the petition filed by Service Employees Local 100 seeking to represent the employer's LPNs. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Supro Neon Corp. (2-CA-26549; 322 NLRB No. 31) Yonkers, N.Y. Sept. 30, 1996. Affirming the administrative law judge's decision, the Board ordered the employer to pay $8420.28 to the Electrical Workers IBEW Local 1968 Health and Benefit Fund on behalf of Paul Siebert. In 1994, the Board found that the employer violated Section 8(a)(5) and (l) of the Act by failing to honor the union's requests to execute a collective-bargaining agreement and a settlement agreement in which accord had been reached. The Board ordered the employer to make employees whole for any losses. 314 NLRB 382. The U.S. Court of Appeals for the Second Circuit enforced the decision on January 9, 1995. NLRB v. Supro Neon Corp., No. 94-4221. A controversy having arose over the amount due under the terms of the Board's order, the Regional Director issued a compliance specification and notice of hearing. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Hearing at Brooklyn on Dec. 18, 1995. Adm. Law Judge James F. Morton issued his decision Feb. 7, 1996.

* * *

Meyer Waste Systems, Inc. d/b/a Able Disposal, a Div. of Meyer Waste Systems, Inc., et al. (25-CA-23916, et al.; 322 NLRB No. 39) Chesterton, Ind. Sept. 30, 1996. The Board agreed with the administrative law judge's conclusion that the employer applied its alleged policy against the wearing of insignia in an unlawfully discriminatory manner. The Board also found that the employer did not show any ``special circumstances'' that would justify its prohibition against the wearing of union pins in any event. See Meijer, Inc., 318 NLRB 50 (1995); United Parcel Service, 312 NLRB 596, 597 (1993), enf. denied 41 F.3d 1068 (6th Cir. 1994). [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Teamsters Local 142; complaint alleged violation of Section 8(a)(1). Hearing at Valparasio, March 18-20, 1996. Adm. Law Judge Wallace H. Nations issued his decision May 15, 1996.

* * *

Overnite Transportation Company (3-RC-10453; 322 NLRB No. 52) Tonawanda, N.Y. Oct. 4, 1996. The Board granted the union's (Teamsters Local 375) request for review of the Regional Director's decision and direction of election and found, contrary to the Regional Director, that the employer's mechanics do not share such a close community of interest with the petitioned-for unit of drivers and dock workers at the employer's Tonawanda, N.Y. terminal so as to warrant their inclusion in the petitioned-for unit. The Board remanded the case to the Regional Director for further appropriate action. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Beverly Enterprises, Inc., Beverly Health and Rehabilitation Services, Inc., Beverly Enterprises-Connecticut, Inc., d/b/a Greerwood Health Center (34-CA-6513, 34-RC-1219; 322 NLRB No. 51) Hartford, Conn. Sept. 30, 1996. Affirming the Administrative Law Judge, the Board held that the respondent unlawfully promised and granted increased benefits during an antiunion campaign by promulgating benefits summaries--revealing previously concealed benefits that had been withheld from many of the employees. The campaign further violated the Act by making an implied promise of a 4-percent across-the-board wage increase if the employees voted against union representation. Accordingly, the Board ruled that a February 17, 1994 election be set aside and a new election held. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by New England Health Care Employees District 1199; complaint alleged violation of Section 8(a)(1). Hearing at Hartford, Connecticut on September 11-12 and 14-15, 1995. Adm. Law Judge Marion C. Ladwig issued his decision on May 2, 1996.

* * *

Carib Inn Tennis Club and Casino (24-CA-6726; 322 NLRB No. 34) Hato Rey, P.R. Sept. 30, 1996. In this supplemental decision and order, the Board affirmed the administrative law judge's award of $24,428 in backpay to an employee for the period ending Oct. 31, 1995, and revised the Order to reflect the General Counsel's meritorious exception to the judge's failure to provide an additional backpay award from Nov. 1, 1995 until there is a valid offer of reinstatement. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Backpay hearing on Nov. 13-14, 1995. Supplemental decision issued by Adm. Law Judge Peter E. Donnelly, June 11, 1996.

* * *

Adam Wholesalers, Inc. (11-CA-16535, et al., 11-RC-6083; 322 NLRB No. 50) Lynchburg, Va. September 30, 1996. The Board declined to order the reimbursement of litigation expenses as requested by the union, which had contended that the respondent's exceptions and brief were frivolous and that its violations were flagrant. The Board held that while the respondent's defenses were meritless, they were not frivolous, pointing out: ``a respondent's defenses will generally be considered debatable, rather than frivolous, if they turn on issues of credibility.'' [TEXT] [PDF] [TEXT] [PDF]

The Board upheld the Administrative Law Judge's imposition of a Gissel bargaining order since ``the Respondent's conduct, both pre and postelection, clearly demonstrates that holding a fair election in the future would be unlikely.'' Once it learned of the union's organizing campaign, the respondent embarked on a series of unfair labor practices, such as unlawful threats of loss of benefits, job loss, and other unspecified reprisals.

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Teamsters Local 171; complaint alleged violations of Section 8(a)(1), (3) and (5). Hearing at Rustburg, Virginia on March 11-13, 1996. Adm. Law Judge J. Pargen Robertson issued his decision on May 30, 1996.

* * *

Laborers' International Union of North America, Local 265, AFL-CIO (Fred A. Nemann Company) (9-CB-7718; 322 NLRB No. 47) Cincinnati, Ohio September 30, 1996. This is a Beck case that came to the Board on a stipulated record. At the time the respondent union requested that the charging party join the union and sign a dues-checkoff authorization, it failed to notify her of her Beck rights. Therefore, the Board held the respondent violated the rule set forth in California Saw & Knife Works requiring that Beck notice be given to an employee when or before a union seeks to obligate that employee to pay fees and dues under a union-security clause. The respondent had argued that a union does not have an obligation to notify dues-paying nonmember employees of Beck rights unless those employees have made their dissent under Beck known to the union. [TEXT] [PDF] [TEXT] [PDF]

The Board, however, did not find a violation in the respondent's failure to provide the charging party with financial information after she had registered a Beck objection. It stated: ``[T]he underlying purpose for providing Beck objectors with financial information is to allow an objector to decide whether there is any reason to mount a challenge to the union's dues reduction calculations. There can, however, be no dispute regarding the correctness of the fees charged by a union to a Beck objector when no payment of fees is required. Absent any dispute regarding the correctness of a union's calculations, a challenge by an objector to those calculations is superfluous.''

(Chairman Gould and Members Browning, Fox, and Higgins participated.)

Charge filed by Sherry Schmidt-Hill, an individual; complaint alleged violation of Section 8(b)(1)(A)

* * *

Proctor Express Inc. of New Jersey, B.A. Proctor, Inc., and Rutgers Express, Inc. (4-CA-20745; 322 NLRB No. 46) Pennsauken, N.J. Sept. 30, 1996. The Board agreed with the administrative law judge that the respondents are a single employer and are jointly and severally liable for remedying the unfair labor practices found. Specifically, the employer violated the Act by refusing to recognize and bargain collectively with Teamsters Local 107 as the exclusive collective-bargaining representative of Proctor Express' drivers, platform employees, and mechanics by: (1) unilaterally discontinuing payments to contractual benefits funds on behalf of the unit employees; (2) unilaterally discontinuing payments to unit employees for vacations, sick pay, or similar established terms and conditions of employment; and (3) unilaterally transferring platform work previously performed by the unit employees. [TEXT] [PDF] [TEXT] [PDF]

On February 13, 1992, Bruce Arbeiter, the sole shareholder and president/treasurer of Rutgers, formed B.A. Proctor for the purpose of purchasing the stock of Proctor Express, Inc. Thereafter, Arbeiter owned 50 percent of B.A. Proctor's stock and his daughter, Alyson Distel, owned the remaining 50 percent of the stock. On February 19, 1992, Arbeiter met with union representatives, told them that he was considering the purchase of Proctor Express, and was informed that if he did so, he would be responsible for unpaid pension and benefit and welfare debts that Proctor Express owed. On February 22, 1992, Arbeiter and the union reached agreement on a variety of matters affecting the terms and conditions of employment of Proctor Express employees. On March 14, B.A. Proctor formally purchased the stock of Proctor Express. After the purchase, Arbeiter effectively exercised overall operational control over Rutgers, B.A. Proctor, and Proctor Express. The entities shared common ownership, common management, and centralized control of labor relations.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 107; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia, Dec. 7-8, 1993. Adm. Law Judge David L. Evans issued his decision June 10, 1994.

* * *

Adsco Manufacturing Corp. (3-CA-17760, 17788; 322 NLRB No. 35) Buffalo, N.Y. Sept. 30, 1996. The Board ordered the employer to make whole eight individuals by paying them backpay totaling $47,598. By unpublished order dated May 18, 1994, the Board ordered the employer to make whole all employees for any loss of earnings and benefits resulting from their unlawful discharges. On February 14, 1995, the U.S. Court of Appeals for the Second Circuit enforced the Board's order in full. NLRB v. Adsco Mfg. Corp., No. 95-4007 (unpublished). In this backpay proceeding, the parties stipulated that the employer's make-whole obligations with respect to four of the discriminatees--Gerald Bennett, Dennis Jakiela, Donald Klee, and Raymond Unger--would be satisfied by paying sums consistent with the compliance specification. The Board determined the termination point of the backpay period for the remaining four discriminatees--Angelo Broadbent, Robert Herbeck, James Lemke, and Garv Lutz. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Parties waived their right to a hearing before an administrative law judge.

* * *

209 Hull Realty Corp. (AO-340, 322 NLRB No. 43) Bronx, N.Y. Sept. 30, 1996. The Board advised the employer and Service Employees Local 32E that it would assert jurisdiction over the employer's operations. The employer is engaged in the real estate business and manages and controls the residential premises located at 3311-15 Hull Avenue and 3280 Rochambeau Avenue, Bronx, New York. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

* * *

J.C. Penney, Inc. (17-CA-17911, et al.; 322 NLRB No. 38) Overland Park, Kans. Sept. 30, 1996. The Board held, in agreement with the administrative law judge, that the employer violated Section 8(a)(1) of the Act by maintaining or enforcing a rule or policy which discriminatorily prohibits the posting of union materials on company bulletin boards and work carts that are otherwise available for the general use of employees or which implies union materials will only be posted on company easels; and threatening an employee with discharge because of her union sympathies. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Teamsters Local 41; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Overland Park, April 24-26, 1996. Adm. Law Judge Albert A. Metz issued his decision July 1, 1996.

* * *

E.W. Grobbel Sons, Inc. (7-CA-36333, et al.; 322 NLRB No. 49) Detroit, Mich. Sept. 30, 1996. The Board agreed with the administrative law judge's conclusion that the employer unlawfully discharged striking employee Fronte' Ludy, but unlike the judge who applied Wright Line, 251 NLRB 1083 (1980), the Board found a violation applying the analysis set out in NLRB v. Burnup & Sims, 379 U.S. 21 (1964), for determining whether an employer has violated the Act by discharging an employee for alleged misconduct arising out of protected activity. [TEXT] [PDF] [TEXT] [PDF]

Although the Board agreed with the judge that the employer unlawfully denied James Willis his vacation pay during the strike, it found that the conduct violated Section 8(a)(3) and (1), as alleged in the complaint, and not only Section 8(a)(1) as found by the judge. The Board also found, consistent with the complaint, that human resources manager Kathleen Shields' conduct in bypassing the union and dealing directly with the employees violated Section 8(a)(5), as well as Section 8(a)(1) as the judge found. In agreeing with the judge that the employer did not establish loss of the union's majority or present evidence of objective considerations to support its claim that the union did not represent a majority of the unit employees after February 15, 1995, the Board ``stress[ed] that the Respondent could not have possessed a goodfaith doubt of the Union's majority status in this case where, as the judge found, there are unremedied unfair labor practices of the kind that would tend to cause employee disaffection with the Union.''

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Food and Commercial Workers Local 26; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Detroit, June 20-22 and Sept. 8, 1995. Adm. Law Judge Benjamin Schlesinger issued his decision March 13, 1996.

* * *

Genesee Family Restaurant and Coney Island, Inc.; el al. (7-CA-35051, et al.; 322 NLRB No. 36) Flint, Mich. Sept. 30, 1996. The Board agreed with the administrative law judge that the respondents violated Section 8(a)(5), (3), and (l) of the Act in many respects including closing the Genesee restaurant, discharging employees, and reopening as International Bakery & Pastries, Inc. because employees selected Hotel Employees and Restaurant Employees Local 24 as their bargaining representative; unilaterally changing working conditions without prior notice to and affording the union an opportunity to bargain, refusing to supply the union with information relevant and necessary to its representational duties; installing video cameras to watch employees because they supported the union; threatening employees with unspecified reprisals; and coercively interrogating employees. [TEXT] [PDF] [TEXT] [PDF]

The Board agreed with the judge that International is the alter ego of Genesee. The Board found it unnecessary to pass on whether International is also a successor to Genesee as defined in NLRB v. Burns Security Services, 406 U.S. 272 (1972), as raised by the General Counsel in cross-exceptions. The Board found that the judge's analysis here is consistent with White Oak Coal Co, 318 NLRB 732 (1995), which clarified the standard for imposing personal liability on shareholders for the unfair labor practices committed by corporations.

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Hotel Employees and Restaurant Employees Local 24; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Flint for 11 days between Oct. 1994 and Feb. 1995. Adm. Law Judge Harold Bernard Jr. issued his decision Dec. 5, 1995.

* * *

Albar Industries, Inc. (7-CA-36027, 322 NLRB No. 48) Lapeer, Mich. Sept. 30, 1996. The administrative law judge found, with Board approval, that the employer violated Section 8(a)(5) and (l) of the Act by refusing to execute the collective-bargaining agreement it reached with Teamsters Local 614, and unilaterally modifying the binding agreement during its term by requiring employees to take 2 weeks of mandatory vacation during the company's annual shutdowns in July 1994 and July 1995. The Board affirmed the judge's recommended remedy of making whole bargaining unit employees for any vacation days in excess of 1 week which they took during the shutdowns, finding that ``they took those vacation days at those times under orders from the Respondent that unlawfully disregarded the agreement that employees could only be required to use 1 week of their vacation during shutdown periods.'' [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Teamsters Local 614; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit on Oct. 26, 1995. Adm. Law Judge Marion C. Ladwig issued his decision May 9, 1996.

* * *

2961 Marion Realty Associates, L.L.C. (AO-339; 322 NLRB No. 41) Bronx, N.Y. Sept. 30, 1996. In this advisory opinion, the Board determined that it would assert jurisdiction over the employer, a business that manages a residential building, because it met the $500,000 discretionary jurisdictional standard. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

* * *

Carpenters Local 1102 (Detroit Edison Co.) (7-CB-10129 (1), 10206; 322 NLRB No. 27) Detroit, Mich. Sept. 6, 1996. The administrative law judge found, inter alia, that the respondent union violated Section 8(b)(2) and 8(b)(1)(A) of the Act by discouraging Charging Party Clayton Bernier, who had opposed the union's officers and policies, from applying for work at Detroit Edison. In so finding, the judge found that the union exaggerated the requirements and stringency in the applicant screening process. The Board disagreed and found that the union's comments to Bernier that his criminal record might be an obstacle to employment did not violate the Act. The Board did, however, adopt the judge's finding that the union violated Section 8(b)(1)(A) by refusing to refer Bernier to work at one of Detroit Edison's plants. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Clayton A. Bernier, an individual; complaint alleged violation of Section 8(b)(2) and 8(b)(1)(A). Hearing at Detroit, Nov. 7-9, 1994. Adm. Law Judge Harold Bernard, Jr. issued his decision May 16, 1995.

* * *

Amboy Care Center (22-RC-11068; 322 NLRB No. 30) Perth Amboy, N.J. Sept. 23, 1996. The Board set aside an election and ordered a second election after finding that the employer threatened employees that it would act in a disparate and harsher manner toward the employees' chosen representative should the employees choose to be represented by the petitioner, Nursing Home and Service Employees Union--New Jersey A, a Division of 1115 District Council, and that the employer promised harmonious and beneficial bargaining with the intervenor, the incumbent Health Care Employees Amalgamated Local 747. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Bishop Mugavero Center for Geriatric Care, Inc. (29-RC-8537-S; 322 NLRB, No. 32) Brooklyn, N.Y. Sept. 27, 1996. Relying on Caribe Industrial, 216 NLRB 168 (1975), Members Browning and Fox affirmed the Regional Director's recommendation that a ballot marked with an ``X'' in the ``No'' box and a diagonal line in the ``Yes'' box be considered void and therefore, not counted. Members Browning and Fox certified that Local 144 of the Hotel, Hospital, and Allied Services Union received a majority of the valid ballots. Dissenting and citing Leonard Creations, 638 F.2d 111 (1981), Chairman Gould would overrule Caribe and would find that the diagonal line was not sufficient to void the clear choice of ``No.'' [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Victory Markets, Inc. d/b/a Great American and Concord Asset Management (3-CA-17591, et al., 322 NLRB No. 7) Utica, N.Y. Aug. 27, 1996. The Board concluded that respondent Victory violated Section 8(a)(1) of the Act by prohibiting nonemployee union representatives from handbilling in front of its Oneonta store in the Southside Mall without having a property right in the premises entitling it legitimately to do so; and that Concord violated Section 8(a)(1) by threatening on December 29 or 30, 1992 to have the handbillers arrested if they did not leave the public right of way adjacent to the mall and by discriminatorily prohibiting the union from handbilling on Concord's property. The Board found that the handbills bore a clear area standards message, that the union's conduct in conveying its message was peaceful, and that the respondent failed to establish that the handbilling activity was unprotected. Victory is engaged in the operation of grocery stores in Cooperstown and Oneonta, New York. Oneonta's Southside Mall store is managed by Concord. [TEXT] [PDF] [TEXT] [PDF]

On other alleged violations, the Board agreed with the judge that Victory did not violate the Act by summoning the police to evict the handbillers from the entrance to the parking lot because the handbillers were interfering with traffic. The Board also agreed with the judge that the evidence failed to establish that Victory was responsible for having the handbillers evicted by the police at Cooperstown.

(Chairman Gould and Members Browning and Cohen participated.)

Charges filed by Carpenters Local 258; complaint alleged violation of Section 8(a)(1). Hearing at Albany, Nov. 8, 1993 and Feb. 3, 1994. Adm. Law Judge Joel P. Biblowitz issued his decision June 2, 1994.

* * *

Western Plant Services, Inc., a wholly-owned subsidiary of Hall-Buck Marine, Inc. (19-CA-23967; 322 NLRB No. 25) Anacortes, Wash. Sept. 6, 1996. The Board found it necessary to issue a broad cease-and-desist order because the employer engaged in egregious and widespread misconduct. Specifically, the employer violated 8(a)(5) and (l) of the Act by refusing to recognize and bargain with Oil Workers Local 1-591 as the representative of its production and maintenance employees and unilaterally altering unit employees' wages, hours of work, holidays, vacations, health and welfare coverage, and pensions; violated Section 8(a)(3) by refusing to employ or consider for employment 12 of its predecessor's employees in order to avoid successorship recognition and bargaining obligations with the union; and violated Section 8(a)(1) by telling applicants for employment that it intended to operate on a nonunion basis. [TEXT] [PDF] [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by the Oil Workers International; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Burlington, Oct. 31-Nov. 2, 1995. Adm. Law Judge William L. Schmidt issued his decision May 10, 1996.

* * *

Alexander Bistritzky (AO-337; 322 NLRB No. 28) Manhattan, N.Y. Sept. 13, 1996. The Board advised the parties that it would assert jurisdiction over the employer, which is in the real estate business and manages and controls the residential premises located at 729 West 186th Street, 10 Overlook Terrace, and 739 West 186th Street, Manhattan, New York. The petitioner (729 West 186th Corp.) alleges that the buildings generate in excess of $500,000 per year in income. Assuming the employer is a single employer with respect to the buildings, it would satisfy the Board's discretionary standard. And, assuming that the employer's out-of-state purchases are more than de minimus, it would also satisfy the Board's statutory jurisdiction. [TEXT] [PDF] [TEXT] [PDF]

There are no representation or unfair labor practices proceedings involving the employer pending before the Board. A representation petition, Case SE-59175, SE-59176, and SE-59178, filed by Service Employees Local 32E iscurrently pending before the New York State Labor Relations Board.

(Chairman Gould and Members Browning and Fox participated.)

* * *

Communications Workers Local 9403 (Pacific Bell). (20-CB-7726, et al.; 322 NLRB No. 22) San Francisco, Calif Sept. 5, 1996. The Board affirmed the administrative law judge's approval of a series of unilateral settlement agreements between the respondent and the General Counsel resolving all but two of the consolidated complaint allegations, which it dismissed. The unresolved allegations assert that the respondent's Beck procedure for accommodating nonmember employees opposed to paying dues for expenditures unrelated to collective bargaining is unlawful because: (1) it fails to break down expenses into representational and nonrepresentational categories on a unit-by-unit basis in its disclosure statement to objecting nonmembers; and (2) it charges objecting non-member employees for representational expenses not attributable to the unit in which they are employed. The Board relied on its decision in California Saw & Knife Works, 320 NLRB No. 11 (1995), which issued subsequent to the judge's decision in the instant case; which resolved numerous issues that arose from the holding in Beck prohibiting unions under the Act from requiring nonmember employees to support with their dues union activities not ``germane to collective bargaining contract administration, and grievance adjustment'' (487 U.S. at 745); and which held that the union there did not act unlawfully by failing to charge or allocate its representational expenses on a unit-by-unit basis. [TEXT] [PDF] [TEXT] [PDF]

The amended consolidated complaint is against the respondent and its affiliated districts and locals alleging violations with respect to their Beck objection procedure. The settlement agreements provided that the two unresolved issues would be litigated on a test case basis in Case 20-CB-7726 arising out of the respondent's Pacific Bell/Nevada Bell Telephone bargaining unit and that any violations found and remedial relief ordered by the judge would be applicable to all charging parties named in the settlement agreements.

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Washington, D.C., April 15 and June 15, 1992. Adm. Law Judge Burton Litvack issued his decision May 13, 1993.

* * *

Children's National Medical Center (5-CA-24632, et al.; 322 NLRB No. 26) Wash., D.C. Sept. 13, 1996. The Board ruled that the Regional Director properly reinstated a charge relating to the discharge of Martha Jewett while a timely appeal of the dismissal was pending before the Office of Appeals of the General Counsel. The Board, finding that reinstatement of the charge did not violate the 10(b) statute of limitations proviso, denied the respondent's motion for partial summary judgment or in the alternative, dismissal and remanded the case to the Regional Director for further appropriate action. In a footnote, the Board wrote: [TEXT] [PDF] [TEXT] [PDF]

With respect to the Respondent's contention that the NLRB Casehandling Manual sec. 10122.7 requires the Regional Director to obtain authorization from the Division of Advice prior to reinstating a dismissed charge, we note that the Casehandling Manual is not binding on the Board or the General Counsel, and, in practice, authorization from the Division of Advice has not been required while an appeal is pending. Moreover, the letter from the Office of Appeals closing the case on the basis of the Regional Director's withdrawing his dismissal of the charge, indicates ratification by the General Counsel of the Regional Director's action.

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by District of Columbia Nurses Association a/w American Nurses Association; complaint alleged violation of Section 8(a)(1) and (3). Respondent filed motion for partial summary judgment or, in the alternative, dismissal, July 31, 1996.

* * *

Lee Lumber and Building Materials Corp. (13-CA-29377, et al.; 322 NLRB No. 14) Chicago, Ill. Sept. 6, 1996. In this supplemental decision and order, the Board applied its test for determining whether an employer who has unlawfully refused to recognize and bargain with an incumbent union may thereafter lawfully withdraw recognition. In its original order, (306 NLRB 408 (1992), the Board found that the respondent violated Section 8(a)(1) of the Act by unlawfully providing assistance to employees filing a decertification petition; and violated Section 8(a)(5) and (l) by, among other things, refusing to bargain in good faith with the union, by failing to provide the union with requested information, and withdrawing recognition from the union. Respondent appealed to the D.C. Circuit Court of Appeals. The Board moved to have the appeal dismissed so that the Board could reconsider its order in light of the D.C. Circuits decisions in William Enterprises, 956 F.2d 1226 (1992), and Sullivan Industries, 957 F.2d 890 (1992). After reconsideration, the Board ``reaffirmed [its] practice of presuming that when an employer unlawfiully fails or refuses to recognize and bargain with an incumbent union, any employee disaffecting from the union that arose during the course of that failure or refusal results from the earlier unlawful conduct. In the absence of unusual circumstances, we find that this presumption of unlawful taint can be rebutted only by an employer's showing that employee disaffection arose after the employer resumed its recognition of the union and bargained for a reasonable period of time without committing any additional unfair labor practices that would detrimentally affect the bargaining. Only such a showing of bargaining for a reasonable time will rebut the presumption.'' [TEXT] [PDF] [TEXT] [PDF]

The Board then determined that the respondent did not bargain for a ``reasonable time'' before withdrawing recognition form the union and did not ``rebu[t] the presumption that its earlier refusal to bargain tainted the July employee petition.'' In so doing, the Board reaffimned its previous finding of the 8(a)(5) and (l) violation and its finding that an affimnative bargaining order is the appropriate remedy for the violations.

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Carpenters Local 1027, compliant alleged violated Section 8(a)(5) and (l). The Board heard oral argument in Washington, DC on March 13, 1995. Administrative Law Judge Joel A. Harmatz issued his decision on March 19, 1991.