NLRB Decisions - 1997 January-June

In its answer to the complaint, the respondent denied that the union was the exclusive representative of its employees pursuant to Section 9(a) of the Act. Applying Retail Associates, 120 NLRB 388 (1958), without limitation, the judge found that the union was the exclusive representative of the respondent's employees. The respondent's exceptions and supporting brief did not assert that its relationship with the union was governed by Section 8(f) of the Act. Thus, Members Fox and Higgins found that the union is a 9(a) representative. See Sec. 102.46(b)(2) of the Board's Rules and Regulations. In finding it unnecessary to decide whether the respondent's exceptions are sufficient to raise an issue as to whether its relationship with the union is governed by Section 8(f) or by Section 9(a), Chairman Gould wrote: "Since the Respondent authorized the Association to represent it in negotiations for the successor collective-bargaining agreement, the result is the same whether the relationship is governed by Sec. 8(f) or 9(a)."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 282; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Brooklyn on May 16, 1994. Adm. Law Judge Steven B. Fish issued his decision Sept. 19, 1994 and his supplemental decision Sept. 9, 1996.

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Sioux City Foundry Co. (18-CA-13403, 13834; 323 NLRB No. 184) Sioux City, Iowa June 24, 1997. The Board upheld the administrative law judge's conclusions that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Machinists Local 1426 as the exclusive bargaining representative of employees in a particular bargaining unit; violated Section 8(a)(2) and (1) by initiating, promoting, demanding and requiring that its employees be merged into a single bargaining unit with employees of Continental Rebar Coatings as a result of continued bargaining with Sioux City Foundry Shop Committee, an independent union, following its affiliation with Machinists International and by negotiating and entering into a collective-bargaining agreement for that merged unit; and violated Section 8(a)(1) by promising to pay arbitration costs and to embody that promise in a collective-bargaining contract to interfere with employee freedom of choice concerning affiliation. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Machinists District No. 7; complaint alleged violation of Section 8(a)(1), (2), and (5). Hearing at Sioux City, March 7-8, 1996. Decision issued by Adm. Law Judge William J. Pannier III, May 31, 1996.

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Greenwich Air Services (12-CA-17584, 17595; 323 No. 199) Miami, Fla. June 30, 1997. The Board affirmed the administrative law judge's finding that the respondent violated Section 8(a)(1) by discharging supervisor Robin Sowma for failing to cooperate in the respondent's unlawful scheme to discharge employee Guy Knaak for perceived union activity. "Under these circumstances, we find that Sowma's discharge falls within the exceptions set forth in Parker-Robb Chevrolet to the general principle that supervisory discharge does not violate the Act," the Board stated. In addition, the Board upheld that judge's determination that the respondent, through supervisor Sowma, violated Section 8(a)(1) by statements Sowma made to Knaak. Distinguishing Paintsville Hospital Co., the Board stated: "In the instant case, by contrast, there is no 'extensive evidence' that Sowma was acting out of personal prounion sympathies (see Paintsville, 278 NLRB at 725 fn. 9), as distinct from a hope that an individual he believed was a good employee would not be fired for unlawful reasons unrelated to the quality of his work." The judge also found, with Board approval, that the respondent violated Section 8(a)(1) and (3) by discharging Knaak for his union affiliation. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Guy Knaak and Robin Sowma, individuals; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Miami, Sept. 9, 1996. Decision issued by Adm. Law Judge J. Pargen Robertson, Dec. 16, 1996.

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Plumbers Local 290 (Streimer Sheet Metal Works, Inc.) (36-CD-202, 203; 323 NLRB No. 189) Tualatin, Oreg. June 30, 1997. The Board upheld the administrative law judge's dismissal of a complaint alleging that the respondent violated Section 8(b)(4)(D) of the Act by threatening to and engaging in picketing against Streimer Sheet Metal Works, with the object of forcing the reassignment of certain work from Streimer employees represented by Sheet Metal Workers Local 15 to employees represented by the respondent. See also Plumbers Local 290 (Streimer Sheet Metal Works, Inc.), 319 NLRB 891 (1995). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Sheet Metal Workers Local 15 and Hoffman Construction of Oregon; complaint alleged violation of Section 8(b)(4)(D). Hearing at Portland, June 13, 1996. Decision issued by Adm. Law Judge Timothy D. Nelson, Feb. 7, 1997.

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Longshoremen's Local 20 (Ryan-Walsh Stevedoring Co., Inc., et al.) (16-CB-4681, et al.; 323 NLRB No. 190) Galveston, Tex. June 30, 1997. The Board affirmed the administrative law judge's findings, to which no exceptions were filed, that the respondent violated Section 8(b)(1)(A) and (2) of the Act by its actions designed to suppress or retaliate against dissident members for expressing their opposition to the views of the incumbent union officials, including a yearlong retaliatory campaign of reprisals against dissident Edward O'Rourke. The Board found merit in the General Counsel's exceptions to the one complaint allegation that the judge dismissed, i.e., that the respondent violated Section 8(b)(1)(A) by refusing O'Rourke's September 1995 written request to have his name restored to the grain vessel referral list. In reversing the judge, the Board found that the General Counsel established a prima facie case of discriminatory treatment by showing the respondent's pattern of animus against O'Rourke and that its proffered reasons for refusing to reinstate him to the list were "patently false." The respondent failed to rebut the prima facie case. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Edward O'Rourke, Leon Filidei, and Philip O'Neal, individuals; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Houston for 7 days between April 17 and June 7, 1996. Adm. Law Judge Richard J. Linton issued his decision Aug. 29, 1996.

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The BOC Group, Inc. (10-RD-1274; 323 NLRB No. 194) Chrokee, Ala. June 27, 1997. The Board granted the employer's request for review and, on review, affirmed the Regional Director's dismissal of the decertification petition filed on December 11, 1996, but modified his rationale and provided for conditional reinstatement of the petition. In May and August 1996, the union filed charges in Cases 10-CA-29355 and 29537, alleging that the employer violated Section 8(a)(1), (3), and (5) of the Act. The charge in Case 10-CA-29355 was partially dismissed in January 1997 following an informal Board settlement agreement and the remaining allegation was consolidated with Case 10-CA-29537 for hearing. In dismissing the instant petition, the Regional Director relied on Douglas-Randall, Inc., 320 NLRB 431 (1995), which holds that an employer's agreement to settle outstanding unfair labor practice charges and complaints by recognizing and bargaining with the union will require final dismissal, without provisions for reinstatement, of a decertification petition filed subsequent to the onset of the alleged unlawful conduct. [TEXT] [PDF]

The Board noted however that the settlement agreement in Case 10-CA-29355 does not contain a requirement that the employer recognize and bargain with the union and does not involve the type of unfair labor practices that would preclude a question concerning representation under Douglas-Randall. But, since there are other pending 8(a)(3) and (5) allegations which may result in a bargaining order and preclude a question concerning representation, the Board dismissed the petition, subject to reinstatement, if appropriate, on request, after final disposition of the unfair labor practice proceedings. The Board made the decertification petitioner a party in interest to the unfair labor practice proceeding, limited solely to receipt of a copy of the Order or other document that finally disposes of the proceeding.

(Chairman Gould and Members Fox and Higgins participated.)

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St. Francis Medical Center--West (37-RC-3712; 323 NLRB No. 185) Ewa Beach, Hawaii June 19, 1997. The Board agreed with the hearing officer and overruled the challenge to the ballot of Amy Olaen, but it disagreed with the hearing officer and also overruled the challenge to the ballot of production leader Richard Saito cast in an election held September 1, 1995. The election results show 68 for and 67 against Laborers Local 368, with 2 determinative challenges. The Board found that Saito is not a supervisor within the meaning of Section 2(11) of the Act by virtue of his substituting for his supervisor Daugio when Daugio was on sick leave, and that Saito did not exercise supervisory authority after he returned to his regular duties. Because Saito was not working as a supervisor when the petition was filed or when the election was held and because it has not been shown that Saito's substitution for a statutory supervisor was on a regular and substantial basis, the Board concluded that his community of interest with other unit employees has not been extinguished. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

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Mobil Exploration & Producing U.S., Inc. (15-CA-13491; 323 NLRB No. 183) Coden, Ala. June 23, 1997. The administrative law judge found, and the Board agreed, that the employer violated Section 8(a)(1) of the Act by discharging Paul Cailleteau because he engaged in concerted activities by disseminating information to other employees regarding bonuses. The Board rejected the employer's defense that it cannot be found to have violated the Act because it had no knowledge of the concerted nature of Cailleteau's activities. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Paul Cailleteau (an individual); complaint alleged violation of Section 8(a)(1). Hearing at Mobile on Nov. 20, 1996. Adm. Law Judge Lawrence W. Cullen issued his decision Dec. 16, 1996.

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Paperworkers Local 1048 (Jefferson Smurfit Corp.) (9-CB-9308; 323 NLRB No. 180) Pleasureville and Louisville, Ky. June 19, 1997. The Board affirmed the administrative law judge's conclusion that, by attempting to cause the company to discipline Mick Ramsey because Ramsey engaged in dissident union and other protected concerted activities, the union violated Section 8(b)(1)(A) and (2) of the Act. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Mick Ramsey, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Louisville, Nov. 19, 1996. Decision issued by Adm. Law Judge Michael O. Miller, Jan. 6, 1997.

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Industrial Construction Services, Inc. (16-CA-17186; 323 NLRB No. 179) Beaumont, Tex. June 19, 1997. In this "salting" case, the Board upheld the administrative law judge and found that the respondent did not violate Section 8(a)(3) and (1) of the Act by failing to consider for hire 17 applicants for employment because of their union affiliation. The Board stated: "We agree with the judge that there is no evidence that the Respondent treated the applications of 17 alleged discriminatees in a disparate fashion. Furthermore, the General Counsel failed even to demonstrate that the official responsible for making the Respondent's hiring decisions had any knowledge of the 17 applicants' connection with the Union when he hired other applicants. Under these circumstances, notwithstanding proof of unlawful statements indicating that the Respondent might not hire known union adherents, the judge properly recommended dismissal of the complaint's allegation of a violation of Section 8(a)(3) and (1) of the Act based on the failure to hire any of the 17 applicants." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 479; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Houston, May 28, 1996. Decision issued by Adm. Law Judge Richard J. Linton, Nov. 22, 1996.

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Americold Services, Inc. (17-CA-18464; 323 NLRB No. 193) Kansas City, Kans. June 27, 1997. The administrative law judge found, and the Board agreed, that the employer did not violate Section 8(a)(3) and (1) of the Act by suspending and subsequently discharging Roderick Bradley; and violated Section 8(a)(1) by coercively interrogating an employee about her union activities, creating the impression that its employees' union activities were under surveillance, and threatening that it would start back at zero if employees choose to be represented by a union and that employees would lose their benefits. The judge dismissed, with Board approval, complaint allegations that the employer also violated Section 8(a)(1) by telling an employee that he had been discharged because of his union activities and that the employer wanted to fire another employee because of that employee's union activities. The Board attached a notice to employees which was inadvertently omitted from the judge's decision. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Roderick Bradley, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Kansas City, Jan. 9-10, 1997. Adm. Law Judge Bruce D. Rosenstein issued his decision Feb. 26, 1997.

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Trinity Transportation Corp. (29-CA-18628; 323 NLRB No. 188) Central Islip, N.Y. June 27, 1997. The Board affirmed the administrative law judge's decision, with certain modifications, and held that the employer violated Section 8(a)(2) and (1) of the Act by recognizing Industrial Workers Local 835 at a time when the union did not represent a majority of the unit employees. The judge inadvertently stated in his Conclusions of Law only that this conduct violated "Section 8(a)(1) of the Act." The Board required the employer to reimburse the unit employees, with interest, for any union dues and fees that they paid the union as required by the parties' collective-bargaining agreement. The judge did not award interest on the amounts owed. The Board substituted a new notice by adding a provision that conformed with the judge's recommended Order and required the employer to withdraw and withhold recognition from the union as the unit employees' bargaining representative until such time as the union receives Board certification as their representative. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 813; complaint alleged violation of Section 8(a)(1) and (2). Hearing at Brooklyn on Jan. 8, 1997. Adm. Law Judge Joel P. Biblowitz issued his decision Feb. 12, 1997.

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London's Farm Dairy, Inc. (7-RC-21023; 323 NLRB No. 186) Burton, Mich. June 20, 1997. In this Order Denying Review, a Board majority found that the Regional Director acted within his discretion in directing a mail ballot election at all four of the employer's locations. Chairman Gould and Member Fox stated: "Contrary to our dissenting colleague, we view the manual provision [Member Higgins] cites regarding the 'best place to hold an election, from the standpoint of accessibility to voters' as irrelevant to the threshold issue of whether an election should be by manual vote or mail ballot. That provision speaks to the optimal location of the polling place when it is determined that the election is to be by manual ballot. It could not reasonably be argued that ballots received at their homes are 'inaccessible' to voters. Further, while we agree with our dissenting colleague that the Agency has a proud long tradition of conducting elections by manual balloting and that most elections have been and are conducted manually, it has an equally long history of conducting elections by mail." [TEXT] [PDF]

The majority also stated that with mail ballot elections employees have ample opportunity to cast their ballots in secrecy and without coercion, rejecting the dissent's suggestion that a mail ballot election has less "solemnity and integrity" than a manual ballot election. Furthermore, the majority did not agree with the dissent's assertion that "immigrant workers would perceive a 'serious commitment' to democracy only when manual elections are conducted, given the widespread use of mail ballots in the political process at all levels of American Government."

Referring to manual elections as the "crown jewel of the Board's accomplishments," Member Higgins stated in his dissent that "a complete mail ballot election here is a departure from the agency's wise tradition of favoring manual balloting," citing the provisions in the NLRB Casehandling Manual (Part Two) limiting mail balloting "to those circumstances that clearly indicate the infeasibility of a manual election." In this case, Member Higgins stated, there was no showing that a manual election is "infeasible" at least at two of the employer's four locations. He said further that "even if my colleagues have a basis for predicting that an increase in mail balloting will not mar our fine record, the issue is whether we should run the risk. Phrased differently, the question is whether we should tamper with success. I would not fix something that is not broken."

(Chairman Gould and Members Fox and Higgins participated.)

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Nightengale Nursing Care Center (7-CA-38264; 323 NLRB No. 182) Warren, Mich. June 20, 1997. Pursuant to the General Counsel's Motion for Summary Judgment, the Board found that the respondent violated Section 8(a)(5) and (1) of the Act by ceasing to recognize the charging union, the Nightengale Employee Council, and by ceasing to give effect to the fourth step of the grievance procedure in the collective-bargaining agreement without the consent of the union. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

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Reynolds Wheels International (30-RC-5873; 323 NLRB No. 187) Beloit, Wis. June 20, 1997. In this Order Denying Review, Chairman Gould and Member Fox found that the Regional Director's decision to conduct a mail ballot election was not an abuse of discretion. They stated: "We note that although the eligible voters are not scattered geographically because of their duties, they are scattered in terms of working staggered shifts. Indeed, the voters' shifts are so varied that it would, the parties agree, require 3 consecutive days of manual balloting to accommodate all eligible voters." [TEXT] [PDF]

Dissenting, Member Higgins stated that there was no reason here to depart from "the Agency's wise tradition favoring manual balloting." He said: "There is no suggestion here that a manual ballot is infeasible. At most, a Board agent would have to visit the plant on 3 successive days, or off-duty employees would have to go to the plant on 1 day. As to the former alternative, it is clear that budgetary considerations are not alone sufficient to warrant a mail ballot. As to the latter alternative, there is no showing that off-duty employees live long distances from the plant or would otherwise be unable to vote at the plant."

(Chairman Gould and Members Fox and Higgins participated.)

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Starcon, Inc. (13-CA-32719; 323 NLRB No. 168) Manhattan, Ill. June 13, 1997. In this "salting" case, the Board upheld the administrative law judge's rulings that the respondent violated Section 8(a)(3) of the Act by refusing to hire or consider for employment union members, by changing job application procedures, by subcontracting work to other employers, by issuing disciplinary warnings to employees Wayne Darby and Millard Howell, and by suspending Darby. The judge also found with Board approval that the respondent independently violated Section 8(a)(1) by creating an impression of surveillance, threatening to discipline union sympathizers, and threatening to subcontract work. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Boilermakers; complaint alleged violations of Section 8(a)(3) and (1). Hearing at Chicago, July 17-20, and Aug. 28-30, 1995. Decision issued by Adm. Law Judge Robert T. Wallace, Dec. 27, 1996.

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Fountainview Care Center (4-RC-18231; 323 NLRB No. 172) Lakewood, N.J. June 16, 1997. The Board adopted the Regional Director's findings and recommendations regarding an election where the revised tally of ballots shows 32 for and 32 against Health Care Employees 1199J, with no challenged ballots. The Board agreed that the election must be set aside and a new election held because the employer failed to comply with Excelsior Underwear. Members Fox and Higgins found that although evidence of bad faith or gross negligence is not required under the Excelsior doctrine, the employer's conduct demonstrated that it did not act in good faith in omitting the names of four recreational aides from the eligibility list. Concurring, Chairman Gould stated: "... I believe, unlike my colleagues, that there is no need here to determine whether the Employer acted in bad faith, or with gross negligence, in omitting the names from the list. *** I believe the Employer's omission ... warrants setting aside the election, regardless of whether the omissions were the result of conduct demonstrating bad faith or gross negligence, because the omitted employees were determinative votes." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

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Copps Foods (30-CA-13044; 323 NLRB No. 174) Appleton, Wis. June 16, 1997. The administrative law judge found, with Board approval, that the respondent did not violate Section 8(a)(1) when it discharged employee Mary Klika. The judge found that Klika engaged in individual and not concerted activity when she told employees that a supervisor said their jobs would be posted, and that Klika's statement to employees was "intentionally false." The judge concluded that counsel for the General Counsel failed to establish a prima facie case, and even assuming arguendo that she had, the respondent established that it would have discharged Klika for insubordination regardless of any protected activity. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Mary Klika, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Appleton, Sept. 30, 1996. Decision issued by Adm. Law Judge Judith Ann Dowd, Jan. 27, 1997.

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Hagar Management Corp. (29-CA-15842, et al.; 323 NLRB No. 176) Brooklyn, N. Y. June 17, 1997. The Board adopted the administrative law judge's recommended findings made pursuant to a compliance specification hearing and ordered the respondent to offer reinstatement to Anthony Mitchell and Courtney Thompson plus backpay totaling $4,644. A prior judge's decision in the same proceeding was enforced by the D.C. Circuit Court of Appeals (55 F.3d 684 (D.C. Cir. 1995)), which stated: "As to whether Mitchell's alleged fraud should have been considered in connection with the Administrative Law Judge's recommended reinstatement remedy, the Board made clear that whether Hagar Management Corporation . . . had to reinstate Mitchell remained an open question and that it would consider the impact of the alleged fraud on the remedy at the compliance stage of these proceedings." [TEXT] [PDF]

In the instant case, the judge rejected the respondent's contention that Mitchell should be denied reinstatement because of his alleged fraud, and stated that "Respondents have not proven that Mitchell willfully deceived the Board and, accordingly, I declined to deduct backpay for the quarters he underreported his earnings. For the same reason it would not be appropriate for me to deny Mitchell reinstatement. I believe, however, that even were I to have found that Mitchell's underreporting of earnings constituted a willful deceit of the Board, a denial of reinstatement under the circumstances would not be warranted."

(Chairman Gould and Members Fox and Higgins participated.)

Hearing held at Brooklyn, June 18, 1996. Supplemental decision issued by Adm. Law Judge D. Barry Morris, Feb. 20, 1997.

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Lin R. Rogers Electrical Contractors, Inc. (16-RC-9907; 323 NLRB No. 171) Lubbock, Tex. June 13, 1997. The Board directed the Regional Director to open and count the challenged ballot of Tom Keggereis and to issue a revised tally of ballots and the appropriate certification. The original tally of ballots for the election held November 21, 1996 shows 3 for and 3 against, Electrical Workers Local 850, with 3 challenged ballots. In the absence of exceptions, the Board adopted pro forma the hearing officer's recommendation that the union's challenge to Keggereis' ballot be overruled. [TEXT] [PDF]

The employer challenged the ballots of electricians Feliciano Garcia and Raymond Quinones, who withheld their services from the employer in October 1996. In the absence of exceptions, the Board adopted pro forma the hearing officer's finding that Garcia, a full-time union organizer, was not an unfair labor practice striker. Contrary to the hearing, the Board found that Garcia and Raymond Quinones were not economic strikers and thus were not eligible voters. Regarding Garcia, the Board concluded that he voluntarily quit his employment on October 26, 1996. The Board further found that Quinones' work stoppage did not accord him status under the Act as an economic striker because he was not acting in concert with any other employee when he withheld his services from the employer after October 14, 1996. The Board found Manno Electric, 321 NLRB 278 (1996), cited by the hearing officer, is distinguishable and does not support a finding that Quinones was an economic striker.

(Chairman Gould and Members Fox and Higgins participated.)

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Laborers' Local 435 (Spiniello Construction Co.) (3-CD-626; 323 NLRB No. 173) Rochester, N.Y. June 16, 1997. The Board decided that employees of Spiniello Construction Company, Inc., represented by Laborers Local 435 are entitled to perform the work of driving dump trucks, flatbed trucks, utility trucks and pick-up trucks to and from, and on Spiniello's project sites while it cleans and relines water mains and pipes in and about the City of Rochester, New York. In awarding the work to those employees represented by the Laborers rather than to those represented by Teamsters Local 398, the Board relied on the factors of employer preference, past practice, and economy and efficiency of operations. The Board limited its determination to the controversy that gave rise to this proceeding and noted that its award did not affect Spiniello's use of a composite crew of Teamsters-represented and Laborers-represented employees to perform driving work. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

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Pirelli Cable Corp. (11-CA-15987, et al.; 323 NLRB No. 169) Abbeville, S.C. June 18, 1997. The administrative law judge found, and the Board agreed, that the respondent's April 20, 1994 letter threatening employees with the loss of their jobs if they went out on strike was a contributing cause of an employee strike in 1994; that the respondent was required to reinstate the unfair labor practice strikers upon their unconditional offer to return to work; and violated the Act by refusing to reinstate them. The Board found it unnecessary to reach the judge's alternative unfair labor practice findings that are based on the assumption that the strike was an economic strike. The Board agreed with the judge that the respondent unlawfully withdrew recognition from Electrical Workers IBEW Local 2236, finding that the respondent could not rely on an employee decertification petition because it was tainted by the respondent's prior unlawful conduct. [TEXT] [PDF]

In addition to the respondent's unlawful unilateral changes in employees' terms and conditions of employment set forth by the judge, the Board found that the employer unlawfully changed its employees' health insurance benefits. The Board did not adopt the judge's finding that the respondent violated Section 8(a)(1) by insisting that the parties sign the return to work agreement. The complaint did not allege this violation and the matter was not fully litigated by the parties. The Board did not adopt the judge's recommendation that the union's certification begin on the date the employer complies with the Board's order because the certification year expired long before the respondent's unlawful conduct.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers IBEW Local 2236; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Laurens, July 17-19, 1995. Adm. Law Judge Lawrence W. Cullen issued his decisions July 18, 1996 and Aug. 29, 1996.

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Longshoremen's International (Coastal Stevedoring Co.) (12-CC-1226, et al.; 323 NLRB No. 178) Ft. Pierce, Fla. June 18, 1997. Members Fox and Higgins dismissed the complaint in its entirety which alleged that the respondent was responsible, under Section 8(b)(4)(ii)(B) of the Act, for threats made by Japanese unions to neutral persons, exporters, shippers, and importers who are involved in the Florida-Japan citrus trade. In 1993, the Board, relying on Pipefitters Local 280 (Aero Plumbing Co.), 184 NLRB 398 (1970), found that the respondent violated Section 8(b)(4)(ii)(B) pursuant to a theory of agency law by authorizing and ratifying certain threats made by Japanese unions to refuse to unload fruit loaded by nonunion stevedores in the U.S. The Board did not address the General Counsel's additional argument that the respondent was responsible for the conduct under another theory of agency, i.e., apparent authority, and under the theory of joint venture. 313 NLRB 412. On remand from the U.S. Court of Appeals for the D.C. Circuit, Members Fox and Higgins found that "the court's opinion precludes a finding that the Japanese unions were in any way the agents of the Respondent, and, to the extent that our consideration of the joint venture allegation is permissible under the scope of the court's remand, we find that the record fails to establish the existence of a joint venture relationship by which the Respondent could be held responsible for the Japanese unions' conduct." [TEXT] [PDF]

Chairman Gould, dissenting, concluded that "the court's opinion allows for further consideration of agency issues in this case, and that such further consideration warrants a finding that the Respondent, through its agents, violated the Act." The Chairman explained: "Although I find . . . that the Japanese unions acted as the agents of the Respondent, I do not believe that such a finding would necessitate an agency finding in most circumstances involving union solidarity or support. * * * In the instant case, it is not the existence of labor solidarity alone that created the agency relationship. Rather, it was the specific circumstances, namely, the Respondent's October 4 [1990] letter which became an integral part of the threats made to neutrals, the failure to disavow the threats, and the Respondent's November 6 [1990] letter endorsing the prior threats and acknowledging that they were made on its behalf, that established the agency relationship under the law."

(Chairman Gould and Members Fox and Higgins participated.)

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Exxel-Atmos, Inc. (22-CA-17889; 323 NLRB No. 159) Somerset, N.J. June 5, 1997. Citing Caterair International, 322 NLRB No. 11 (1996), the Board reaffirmed its earlier finding that an affirmative bargaining order is the appropriate remedy for the employer's unlawful withdrawal of recognition from and its refusal to bargain with the Steelworkers. Consistent with Lee Lumber & Building Material Corp., 322 NLRB No. 14 (1996), the Board required the employer, upon the union's request, to bargain with it for a "reasonable period." The Board's prior decision is reported at 309 NLRB 1024 (1992). On July 15, 1994, the U.S. Court of Appeals for the D.C. Circuit affirmed the Board's unfair labor practice findings and conclusions, enforced portions of the remedial order, and remanded the case to the Board to explain its imposition of the affirmative bargaining order. 28 F.3d 1243 (D.C. Cir. 1994). On November 4, 1994, the court denied the Board's petition for rehearing en banc. 37 F.3d 1538 (D.C. Cir. 1994). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

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Illinois Veterans Home at Anna L.P. (14-RC-11691; 323 NLRB No. 161) Anna, Ill. June 6, 1997. Chairman Gould and Member Fox reversed the Regional Director's dismissal of the petition filed by State, County and Municipal Employees Council 31 seeking to represent the employer's RNs; reinstated the petition; and remanded the case to the Regional Director for further processing. In so doing, Chairman Gould and Member Fox found that the record failed to support the Regional Director's conclusion that the RNs are statutory supervisors and that the record failed to show that the RNs exercise any Section 2(11) statutory indicia of supervisory status. Thus, the employer failed to meet its burden of affirmatively showing supervisory authority. [TEXT] [PDF]

Member Higgins, dissenting, concluded that the facts "fully support the Regional Director's conclusion that the Employer's registered nurses (RNs) are statutory supervisors, based on their authority to: recommend and impose discipline; assign employees; and resolve grievances."

(Chairman Gould and Members Fox and Higgins participated.)

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APT Ambulance Service (31-CA-21363; 323 NLRB No. 162) Los Angeles, Calif. June 9, 1997. The administrative law judge found, and the Board agreed, that the employer violated Section 8(a)(3) of the Act by discharging Joaquin Munoz because of his support for the EMTs and Paramedics International. Contrary to the employer's argument, the judge found that Munoz did not abandon his employment, but rather that the employer "used a variety of discriminatory and coercive devices to effectively discourage Munoz from returning to work" after it learned that he cast the deciding ballot for the union. On other alleged violations, the Board agreed with the judge that the employer violated Section 8(a)(1) by various acts, including interrogating employees and instructing them to tear up or refuse to accept printed material from a union agent. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by the EMTs and Paramedics International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, Jan. 29 through Feb. 1, 1996. Adm. Law Judge Timothy D. Nelson issued his decision Jan. 13, 1997.

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Consolidated Edison Company of New York, Inc. (2-CA-25327, et al.; 323 NLRB No. 163) New York, N.Y. June 10, 1997. The Board upheld the administrative law judge's findings that the employer violated Section 8(a)(1) of the Act on four occasions by denying bargaining unit employees their Weingarten right to union representation at investigatory or fact-finding interviews which the employees reasonably believed might result in discipline; and by threatening a union steward with discipline if he did not leave one of those meetings. [NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)] The employer did not except to these findings. [TEXT] [PDF]

The Board modified the judge's decision by adding an appropriate remedy to the Order for the unlawful threat to the union steward. And, it found merit in an employer exception to the judge's imposition of unit-wide cease-and-desist and notice-posting requirements and to the requirement that employees be notified of their Weingarten rights individually by letter. The Board followed its "usual practice" and confined the injunctive and notice-posting requirements to the facilities at which the violations were committed because there was insufficient evidence to indicate that they were committed pursuant to a company policy or otherwise reflected a pattern or practice of unlawful conduct. Because there was no showing that traditional notice posting would be inadequate to apprise employees of its decision, the Board did not require the notices to be mailed.

On another issue, the Board found no merit in the General Counsel's exceptions to: (1) the judge's failure to find that the employer breached an informal settlement agreement in Case 2-CA-25327 and that the Board rejected a later proposed settlement in part because of the earlier breach; (2) the judge's refusal to allow the General Counsel to introduce evidence concerning a fifth episode in which the employer allegedly denied employees their Weingarten rights; and (3) the judge's failure to find that the employer's managers and supervisors frequently transfer among locations. The General Counsel argued that these factors supported the extraordinary remedies recommended by the judge.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Utility Workers Local 1-2; complaint alleged violation of Section 8(a)(1). Hearing at New York, Oct. 24, 1994, and Oct. 30-31 and Nov. 1 and 8, 1995. Adm. Law Judge Howard Edelman issued his decision May 30, 1996.

* * *

American Automatic Sprinkler Systems, Inc. (5-CA-24636, et al.; 323 NLRB No. 160) Owings Mills, Md. June 11, 1997. The Board affirmed the administrative law judge's findings that Plumbers Locals 669 and 536 are the Section 9(a) representatives of the respondent's journeymen sprinkler fitters and apprentices within each local's specific geographic jurisdiction. Turning to the alleged violations, the Board modified the judge's recommended Order to address additional 8(a)(1) violations that interfered with the employees' Section 7 rights, i.e., when: (1) the respondent's superintendent Forsythe told employee Bentert to stop talking to employees about his rate of pay; (2) its owner and president, Bolyard, told employee Sampson, about August 10, 1994, that the respondent was going nonunion; and (3) its agent, secretary/receptionist Goldbeck, told employee Kraeuter, about August 14, 1994, that the respondent was going nonunion. The General Counsel alleged that each of the statements violated Section 8(a)(1). The allegations were fully litigated and the judge specifically found that they were made. [TEXT] [PDF]

The Board further found that the respondent violated Section 8(a)(3) and (1) by issuing a disciplinary warning to Bentert and constructively discharging employee Ford, Local 536 members, for refusing assignments outside Local 536's jurisdiction. The General Counsel excepted to the judge's failure to find that the written warning to Bentert violated the Act. Member Higgins, dissenting in part, would not find that Ford's quitting of his job constituted a constructive discharge. On a last issue, the Board affirmed the judge's finding that Bentert's suspension in February 14, 1995 was not unlawful, but it reversed and found that Bentert's February 20, 1995 discharge violated the Act. In reversing the judge, the Board found that the General Counsel established a "compelling" prima facie case and that the respondent failed to establish that it would have converted Bentert's suspension into a discharge in the absence of his union and protected activities.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Plumbers Locals 536 and 669, and individuals; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Baltimore, June 5-9, 12-15, 1995. Adm. Law Judge Marion C. Ladwig issued his decision Feb. 26, 1996.

* * *

Arrow Electric Company (9-CA-33757-2; 323 NLRB No. 164) Louisville, Ky. June 13, 1997. Agreeing with the administrative law judge, the Board held that the employer violated Section 8(a)(1) of the Act by discharging Robert Franklin, Kathleen Jackson, Kevin Simms, and Evan Grider because they engaged in concerted activity protected by the Act, i.e., a walkout to protest their treatment by Supervisor Sonny Collins and seeking his removal as their supervisor. In affirming the judge's conclusion that the employer failed to establish that it would have taken the same action in the absence of the employees' protected activity, the Board noted that the employees left the job to discuss the matter with Field Supervisor Jeffries, who had previously told them to come to see him if they had any more problems and their departure from the job was for that reason. Chairman Gould would find the employee protest calling for the removal of Supervisor Collins protected even if Collins had been a high level management official. See his concurrence in Caterpillar, Inc., 321 NLRB 1178, 1184 (1996). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 369; complaint alleged violation of Section 8(a)(1). Hearing at Louisville on Dec. 13, 1996. Adm. Law Judge Richard A. Scully issued his decision March 12, 1997.

* * *

Mueller Energy Services, Inc. (3-RC-10523; 323 NLRB No. 143) West Seneca, N.Y. May 27, 1997. The Board concluded that the Regional Director's administrative dismissal without a hearing of a petition to decertify Operating Engineers Local 17 was proper under Angelica Healthcare Services Group, 315 NLRB 1320 (1995), because there was no reasonable cause to believe that the existing valid collecting-bargaining agreement did not bar the petition, and, therefore, no reasonable cause to believe that a question concerning representation existed. In so finding, the Board rejected the petitioner's claim that under Angelica, a determination of whether a contract bar exists can only be made following a hearing. The Board distinguished the instant case from the facts in Angelica, and reiterated that under Angelica if the Regional Director has reasonable cause to believe that a question concerning representation exits, the Regional Director must provide for a hearing prior to finding a question concerning representation and directing an election. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Laidlaw Transit, Inc. (32-CA-14782; 323 NLRB No. 156) Concord, Calif. May 30, 1997. Affirming the administrative law judge's decision, the Board agreed that the respondent violated Section 8(a)(5) and (1) of the Act by insisting to impasse on its proposal for an interest arbitration clause. Chairman Gould noted his previously expressed view (see Dwight Lang's Enterprises, 314 NLRB 923, 926 fn.12 (1994), that interest arbitration is a mandatory subject of bargaining on which a party may insist to impasse, and would overrule Sheet Metal Workers Local 59 (Employers Assn.), 227 NLRB 520 (1976), and other cases holding that interest arbitration is a nonmandatory subject of bargaining. However, in the absence of a current Board majority to overrule the precedent, Chairman Gould agrees that the judge correctly applied it here. In Member Fox's view this case is not an appropriate vehicle for reexamining that precedent because the respondent takes the position not only that it should be permitted to insist to impasse on an interest arbitration clause, but that it may seek to hold the union to an agreement that interest arbitration clauses would be included in every contract negotiated in the course of their bargaining relationship. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Truck Drivers Local 315 of Contra Costa County; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Oakland, Calif., Oct. 8, 1996. Decision issued by Adm. Law Judge Jay R. Pollack, Jan. 22, 1997.

* * *

L & L Wine and Liquor Corp. (7-CA-37619, 38205; 323 NLRB No. 151) Troy, Mich. May 30, 1997. The Board affirmed the administrative law judge's findings that the employer violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from and refusing to bargain with Teamsters Local 337, making unilateral changes in unit employees' terms and conditions of employment, and seeking to undermine the union, including offering a promotion and suggesting a bribe to union representatives. The judge further found, with Board approval, that the employer violated Section 8(a)(1) by interrogating employees and telling them that it wanted to get rid of the union. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Local 337; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit, Oct. 21-23, 1996. Adm. Law Judge Albert A. Metz issued his decision Jan. 24, 1997.

* * *

Polis Wallcovering Inc., et al. (4-CA-21026, et al.; 323 NLRB No. 152) Philadelphia, Pa. June 2, 1997. The Board, in agreement with the administrative law judge, dismissed the complaint against respondents Metro Wall Covering, Inc. (Metro) and Matrix Wall Covering, Inc. (Matrix) It further ordered respondents Polis Wallcovering, Inc. (Polis) and Metro, a single employer, consistent with the compliance specification, to make whole 10 employees by paying them $109,216.21 and, on their behalf, $38,347 to the pension fund, annuity fund, H&W funds. The complaint alleged that Metro and Matrix are alter egos of, or in the alternative, single employers with each other and Polis, and that both failed and refused to apply Polis' collective-bargaining agreement with Paperhangers Local 587, Painters. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Paperhangers Local 587, Painters; complaint alleged violation of Section 8(a)(1) an (5). Hearing at Philadelphia on Oct. 16, 1996. Adm. Law Judge George Carson II issued his decision Jan. 23, 1997.

* * *

Frontier Hotel & Casino (Frontier III) (28-CA-11001, et al.; 323 NLRB No. 149) Las Vegas, Nev. May 30, 1997. The Board upheld the administrative law judge's findings that the respondent violated Section 8(a)(1), (3), and (5) of the Act by threatening two employees in June 1991; surveilling employees' union leafleting activity on Aug. 3, 1991; discharging and/or suspending 7 employees for union activity; and failing to furnish requested relevant information to the union. The judge further found, with Board approval, that the union's ongoing protest against the respondent was an unfair labor practice strike from its Sept. 21, 1991 commencement. The Board upheld, on a different ground, the judge's dismissal of a complaint allegation involving Security Officer "Craig's" statements against the union. However, the Board reversed the judge and found that the respondent threatened employee Delgado in violation of Section 8(a)(1); imposed a new requirement on union representatives Hughes and Kelly to gain access to its facility in violation of Section 8(a)(5) and (1); and engaged in bad-faith bargaining in 1991 in violation of Section 8(a)(5) and (1). Adopting the judge's reasoning, the Board upheld the dismissal of surface bargaining allegations. In so doing, the Board stated: "However, we note that the bad-faith bargaining found in this case would taint any further claims of impasse in bargaining for a contract, until such time as the violations are remedied." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Local Joint Executive Board of Las Vegas, Culinary Workers Local 226, and Bartenders Local 165; complaints alleged violations of Section 8(a)(1), (3), and (5). Hearing at Las Vegas on various days between Jan. 4, 1993 and June 22, 1994. Decision issued by Adm. Law Judge Gerald A. Wacknov, May 31, 1995.

* * *

Paragon Paint & Varnish Corp. (29-CA-17710, et al.; 323 NLRB No. 155) Long Island City, N.Y. June 4, 1997. The Board considered its original decision and order (317 NLRB 747 (1995)) and accepted as the law of the case the D.C. Circuit's decision (90 F.3d 591 (1996)), enforcing the finding that the respondent violated Section 8(a)(5), (3), and (1) of the Act, but disapproving of the Board's substitution of Chemical Workers Local 8-406 for Local 8-712 as the employees' bargaining representative pursuant to a merger election. The court, noting that the merger election occurred without secret voting, held that the remedial order may run "in favor of Local 8-712 or . . . permit Local 8-406 to stand in for Local 8-712 based on the result of a new merger vote that the Board finds to have been conducted in compliance with minimum due process requirements." The Board reaffirmed the employer's violations of Section 8(a)(5) and (1) in the manner prescribed by the court. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Federal Express Corp. (4-RC-17698; 323 NLRB No. 157) N.J., Pa., and Del. May 30, 1997. The Board dismissed the petition filed by the Auto Workers International seeking to represent certain ground service employees who work for Federal Express, an FAA-certified air carrier which provides express package delivery service worldwide. Members Fox and Higgins agreed with the National Mediation Board (NMB) that the petitioned-for employees are employed in operations covered by the Railway Labor Act (RLA) and that they are not subject to the National Labor Relations Act. On July 17, 1995, the Board requested the NMB to determine the applicability of the RLA to Federal Express' ground service employees. Subsequently, the NMB ruled that Federal Express is a "common carrier by air" within the meaning of the RLA and thus, all of the individuals employed in its air carrier business, including those at issue here, are also covered by the RLA. 23 NMB 32, 70-73 (1995). [TEXT] [PDF]

Chairman Gould, concurring, joined "for institutional reasons" in the dismissal of the petition. "In my view, Congress has specifically confirmed, with regard to the circumstances of this case, that Federal Express is an express company within the meaning of the Railway Labor Act," the Chairman stated.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Delta Tube & Fabricating Corp. (7-CA-37517; 323 NLRB No. 153) Detroit, Mich. May 30, 1997. The administrative law judge found, and the Board agreed, that the respondent violated Section 8(a)(5) and (1) of the Act by unilaterally promulgating a drug and alcohol-testing policy without affording the union an opportunity to bargain over it. The Board also agreed with the judge's conclusions that the drug-testing policy promulgated by the respondent on August 1, 1995, was substantially different from any previously discussed by the parties and that it therefore presented a new occasion for bargaining. Member Higgins, concurring, stated, "As random testing is a crucial issue, its inclusion in Respondent's unilaterally implemented plan was significant and unlawful. Similarly, as the Union never waived the right to grieve, Respondent's unilateral plan, which took away that right, was violative of the Act." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Iron Workers Local 508; complaints alleged violations of Section 8(a)(5) and (1). Hearing at Detroit, Mich. on Feb. 27, 1996. Decision issued by Adm. Law Judge Michael O. Miller, April 17, 1996.

* * *

Exxel-Atmos, Inc. (22-CA-20475; 323 NLRB No. 158) Somerset, N.J. June 5, 1997. By a ruling on motion for summary judgment filed by the General Counsel, the Board found that the respondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition and refusing to bargain with the union as the exclusive collective-bargaining representative of the unit, consisting of production and maintenance workers; by soliciting and instigating the decertification of the union; and by giving a Christmas bonus to its unit employees without giving notice or the opportunity to bargain to the union. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Steelworkers; complaint alleged violations of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment Aug. 10, 1995.

* * *

Schaus Roofing and Mechanical Contractors, Inc. (30-RC-5772; 323 NLRB No. 146) Manitowoc, Wis. May 23, 1997. Citing Burns & Roe Services Corp., 313 NLRB 1307 (1994) for its test defining a craft unit, the Board affirmed the Acting Regional Director's decision that the petitioned-for unit of sheet metal workers is an appropriate unit for collective bargaining. An election involving Sheet Metal Workers Local 18 was held June 16, 1996, and the ballots were impounded pending resolution of this issue on review. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Findlay Industries, Inc. (9-RC-16762; 323 NLRB No. 139) West Carrollton, Ohio May 22, 1997. The Board affirmed the Hearing Officer's denial of the employer's motion to continue the hearing to allow a document expert to testify about the authenticity and validity of employees' signatures on petitions supporting the United Auto Workers. Prior to the motion, the employer was allowed to present testimony from 19 employees who challenged their signatures. Based on credibility resolutions and the testimony of witnesses who saw the employees sign the petitions, the Hearing Officer concluded that 18 of the signatures were valid. Citing Crystal Art Gallery, 323 NLRB No. 34 (Mar. 11, 1997), the Board expressed skepticism regarding the reliability of the employees' testimony when, as here, they were examined by employer's counsel. The Board stated: "The justification for such skepticism is underscored in this case, where the credited evidence establishes that 18 of the 19 employees who testified for the Employer that they did not sign the petition actually did sign it." The Board certified the UAW as the representative based on a vote of 161 for and 149 against with 2 challenged ballots. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Beverly Farm Foundation, Inc. (14-CA-23500, et al.; 323 NLRB No. 147) Godfrey, Ill. May 29, 1997. The Board affirmed the judge's conclusions that the respondent violated Section 8(a)(1) of the Act by denying the union's request to post notices after permitting such postings in the past, removing leaflets on employees' car windshields, denying an employee's request for a union representative at an interview she reasonably believed was likely to result in disciplinary action; refusing to submit grievances to mediation as prescribed by the employee handbook, and announcing the formation of an employee-management committee with duties similar to those performed by the collective-bargaining representative; and violated Section 8(a)(1) and (5) by failing to bargain in good faith to a valid impasse, refusing to meet and bargain collectively with the union, and withdrawing recognition from the union without having a good-faith doubt that the union no longer represented a majority. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by AFSCME Council 31; complaint alleged violations of Section 8(a)(1) and (5). Hearing at St. Louis, Mo., April 9-10, 1996. Decision issued by Adm. Law Judge Arline Pacht, Sept. 16, 1996.

* * *

V&S ProGalv, Inc. and V&S Schuler Tubular Products, Inc., Single Employer and alter egos (17-CA-18223, et al.; 323 NLRB No. 144) Muskogee, Okla. May 30, 1997. The administrative law judge found, with Board approval, that ProGalv and Tubular are not a single employer or alter egos, and thus dismissed the complaints against Tubular. Affirming the judge's conclusions, the Board found that the respondent violated Section 8(a)(1) of the Act by instigating and soliciting the employee drafting and circulation of a decertification petition, promising benefits, threatening the loss of benefits and plant closure, and interrogating an employee about his cooperation in the Board's investigation of this case; violated Section 8(a)(1) and (5) by withdrawing union recognition and failing to adhere to certain terms of the collective-bargaining agreement; and violated Section 8(a)(1) and (2) by fostering and giving unlawful assistance and support to the employee committee, a labor organization. The judge found with Board agreement that ProGalv and Tubular did not violate the Act by refusing to recognize the union as the bargaining representative of Tubular's employees. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Shopmen's Local 620; complaint alleged violations of Section 8(a)(1), (2), and (5). Hearing at Tulsa, Okla., March 4-6, 1996. Decision issued by Adm. Law Judge Lawrence W. Cullen, Nov. 26, 1996.

* * *

Newspaper & Mail Deliverers' Union of New York (Daily News) (29-CD-470; 323 NLRB No. 148) Brooklyn, N.Y. and Jersey City, N.J. May 30, 1997. In this Section 10(k) proceeding, Newspaper & Mail Deliverers' Union was found by the Hearing Officer -- and by the Board -- to have violated Section 8(b)(4)(D) of the Act by engaging in activity to force the Daily News to assign certain work to employees it represents rather than employees represented by New York Mailers' Union No. 6 (Mailers' Union). Relying on employer preference and economy and efficiency of operations, the Board concluded that employees represented by the Mailers' Union were entitled to perform the disputed work. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Mailers' Union No. 6; complaint alleged violation of Section 8(b)(4)(D).

* * *

Lepel Corp. (29-CA-19699; 323 NLRB No. 150) Edgewood, N.Y. May 30, 1997. The Board affirmed the administrative law judge's dismissal of unfair labor practice charges against the respondent. The judge found that the General Counsel did not prove that the respondent made unlawful promises prior to being presented with an employee petition on Jan. 3, 1996, and thus the Act was not violated when the respondent withdrew recognition from the union on Jan. 5, 1996. The respondent's admitted actions thereafter, such as granting a wage increase and enrolling employees in a health insurance plan, also were not found unlawful. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 918. Hearing at Brooklyn, N.Y., July 24-25, 1996. Decision issued by Adm. Law Judge Steven Davis, Nov. 22, 1996.

* * *

Watts Electric Corp. (12-CA-17084; 323 NLRB No. 119) Stuart, Fla. May 16, 1997. Affirming the administrative law judge, the Board found that the respondent violated Section 8(a)(3) and (1) of the Act by discharging an employee because of his union or other protected activities, and impliedly threatening its employees with discharge because of their union activities or membership. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge file by Electrical Workers (IBEW) Local 728; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami, Jan. 23-24, 1997. Bench decision issued by Adm. Law Judge Howard I. Grossman, Feb. 25, 1997.

* * *

Ancor Concepts, Inc. (2-CA-24754; 323 NLRB No. 134) Yonkers, N.Y. May 20, 1997. Rejecting the respondent's argument that it engaged in a lawful lockout in support of its bargaining position, the Board reversed the administrative law judge and found that the respondent violated Section 8(a)(3) and (1) by refusing to reinstate strikers who unconditionally offered to return to work after it announced that the replacement workers were permanent employees. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Amalgamated Industrial Union Local 76B and Electrical Workers (IUE) International; complaint alleged violation of Section 8(a)(3) and (1). Hearing at New York, N.Y., Sept. 9, 1992. Decision issued by Adm. Law Judge D. Barry Morris, Dec. 7, 1992.

* * *

Straight Creek Mining, Inc. (10-CA-28643; 323 NLRB No. 136) Clairfield, Tenn. May 21, 1997. Agreeing with the administrative law judge, the Board held that the respondent as a successor employer violated the Act by failing and refusing to bargain with the union that represented the predecessor employer's employees. It found that the 54-month hiatus between the succession of coal production activities by the predecessor employer and the startup of the respondent's mining operation did not relieve the respondent of a statutory obligation to bargain with the union as the continuing majority representative of production and maintenance unit employees at the mine. Citing Fall River Dyeing, Corp. v. NLRB, 482 U.S. 27, 45 (1987), the Board stated: [TEXT] [PDF]

"The significance of the hiatus is lessened by evidence that the predecessor remained nominally in existence during part of the hiatus, the Union and the predecessor's striking employees remained active, and the mine remained available for reopening."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by United Mine Workers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Atlanta on March 7, 1996. Adm. Law Judge Robert C. Batson issued his decision on December 17, 1996.

* * *

Great Lakes Chemical Corporation and its alter ego GLI, Inc. and C & N General Services, Inc. (joint employer) and its successors Cooke County Security Guard Service, Inc., S&W Security Services, and Security & General Services, Inc. (10-CA-21446, et al.; 323 NLRB No. 135) Newport, Tenn. May 21, 1997. In a supplemental decision, the Board agreed with the administrative law judge that GLI is not a single employer with or alter ego of GLC and that GLI's operations do not constitute an expansion of GLC's manufacturing operations in Newport, Tennessee. Accordingly, the Board found that GLI is not jointly responsible with GLC for remedying unfair labor practices found by the Board in the underlying decisions (298 NLRB 615 and 300 NLRB 1024). The Board also approved a gross backpay formula devised by the General Counsel that uses actual total labor costs incurred by respondent Great Lakes during the backpay period, divided among a class of discriminatees. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Oil Workers Local 3-724; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Atlanta on March 19, 20, and 21, 1996. Adm. Law Judge Philip P. McLeod issued his decision on August 13, 1996.

* * *

Q-1 Motor Express, Inc. (9-CA-29180; 323 NLRB No. 142) Lafayette, Ind. May 23, 1997. Members Fox and Higgins agreed with the administrative law judge that the employer unlawfully failed to provide Teamsters Local 89 with notice and an opportunity to bargain about the decision to change from a single-driver system to a team-driver system and to transfer bargaining unit work to a new terminal in Lafayette, Indiana, but unlike the judge, they did not apply Dubuque Packing Co., 303 NLRB 386 (1991). In finding that the employer's decision to relocate unit work is not "severable" from the decision to change to team driving and that its bargaining obligation over both decisions was the "same," Members Fox and Higgins wrote: [TEXT] [PDF]

The Union had a right to receive notice of and an opportunity to bargain over the Respondent's entire plan. Meaningful bargaining over the team-driver system could only occur if the Union knew that without such a system the Respondent believed that it could not continue to operate out of the Clarksville facility and would relocate the unit work to the Lafayette facility, and, conversely, that the Clarksville facility would remain open if the Respondent's perceived need for team driving could be accommodated.

Chairman Gould, concurring, agreed that the employer's relocation decision is not severable from its unlawful unilateral change to a team-driver system and, therefore, that the failure to bargain over the decision violated Section 8(a)(5) and (1) of the Act. However, the Chairman would find that the employer unlawfully failed to bargain about the relocation decision even if he did not agree that it was made in furtherance of the unlawful change. In this regard, Chairman Gould would overrule Dubuque Packing Co., to the extent that it restricts the analysis of a relocation decision to labor costs, finding that that factor is "hardly dispositive" of whether the dispute between the parties is, as described in First National Maintenance, 452 U.S. 666 (1981), "amenable" to the bargaining process and is a "clear invitation to posturing, game playing, and obfuscation in a attempt to conceal and deceive."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 89; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Louisville, Sept. 22-23, 1991. Adm. Law Judge Leonard M. Wagman issued his decision Feb. 3, 1993.

* * *

Electrical Specialties, Inc. (25-CA-23703; 323 NLRB No. 122) Muncie, Ind. May 9, 1997. The administrative law judge found, with Board approval, that the employer violated Section 8(a)(3) and (1) of the Act by discharging Brian Gulley and Jeff Peters because of their union and concerted activities; and violated Section 8(a)(1) by threatening employees with unspecified reprisals and plant closure if they selected Electrical Workers IBEW Local 855 as their exclusive bargaining representative. The employer claimed that it discharged Gulley and Peters for approving time cards submitted by other employees that overstated the time the employees actually worked. The Board found no merit to an employer exception to the judge's description of its reason for the two discharges, noting that although the judge's initial description erroneously indicated that the employer ostensibly discharged Gulley and Peters for falsifying their timesheets, his further discussion clarified the employer's proffered reason. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 855; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Muncie, July 8-9, 1996. Adm. Law Judge Karl H. Buschmann issued his decision Nov. 25, 1996.

* * *

American Federation of Government Employees Local 888 (Bayley-Seton Hospital) (29-CB-7435, et al.; 323 NLRB No. 123) Staten Island, N.Y. May 13, 1997. In this supplemental decision following remand from the D.C. Circuit, the Board concluded that the respondent's decision to abandon arbitration of pending grievances was based on a reasonable interpretation of then-current case law (Paramax Systems, 41 F. 3d 1532 (D.C. Cir. 1994)) and, thus was not arbitrary, discriminatory, or taken in bad faith. The Board vacated its 1992 decision and order (308 NLRB 646) finding that the respondent violated Section 8(b)(1)(A) of the Act by refusing, in derogation of its duty of fair representation, to process pending grievances solely because of the Board's subsequent certification of another union as bargaining representative; and dismissed the complaint. Chairman Gould concurred, "for institutional reasons," in dismissal of the complaint but he expressed "no view regarding whether the duty of fair representation is implicated by a union's intentional failure to pursue the arbitration of grievances which arose during its tenure as representative after its decertification." Member Higgins concurred with his colleagues, finding that the result is consistent with the "retroactivity" principles of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Benteler Industries, Inc. (7-CA-38088, et al.; 323 NLRB No. 118) Grand Rapids, Mich. May 12, 1997. The Board affirmed the administrative law judge's findings that the employer violated Section 8(a)(5) and (1) of the Act by changing the procedure by which employees may exercise shift preference rights and eliminating bargaining unit positions without giving the union notice and an opportunity to bargain about the changes; and violated Section 8(a)(1) by refusing employees' requests to post union-sponsored literature on bulletin boards at plants where it has permitted the posting of other personal, nonwork-related notices by other employees; and telling an employee that she could not distribute union-sponsored literature in a nonwork area. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by the Auto Workers International; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Grand Rapids on Oct. 22, 1996. Adm. Law Judge Richard A. Scully issued his decision Jan. 30, 1997.

* * *

Audiovox Communications Corp. (29-RC-8778; 323 NLRB No. 129) Hauppauge, N.Y. May 6, 1997. The Board reversed the Regional Director's decision and found that the employer's cellular phone technicians are not "technical employees," as the Board defines the term. However, the Board agreed with the Regional Director that the petitioned-for employees share a community of interest separate from the excluded employees and thus constitute an appropriate unit for bargaining. American Service and Industry Local 350 is the petitioning union. Request for review was denied in all other respects. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Opryland Hotel (26-CA-16610, et al.; 323 NLRB No. 127) Nashville, Tenn. May 15, 1997. The administrative law judge found, with Board approval, that the respondent violated Section 8(a)(1) of the Act by enacting an unlawful no-solicitation/distribution rule and by prohibiting employees from talking about the union; and violated Section 8(a)(3) and (1) by warning certain employees and discharging one employee for violating the invalid no-solicitation/distribution rule. The Board added a violation that the judge inadvertently omitted, i.e. that the respondent violated Section 8(a)(1) by surveilling and creating the appearance of surveilling its employees. In addition, the Board reversed the judge and found that the respondent violated Section 8(a)(3) and (1) by denying the requests of two employees to change their work schedules based on facts establishing, inter alia, that the respondent knew that the employees were open union supporters, that jobs to which they could have been transferred were open, and that the employer demonstrated antiunion animus. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Food & Commercial Workers Local 405; complaint alleged violations of Section 8(a)(1) and (3). Hearing on Oct. 23 - 27, 1996. Decision issued by Adm. Law Judge Robert C. Batson, July 12, 1996.

* * *

Edy's Grand Ice Cream (25-CA-23065, et al.; 323 NLRB No. 111) Ft. Wayne, Ind. May 9, 1997. Upholding the administrative law judge, the Board held that the respondent violated Section 8(a)(1) of the Act by, inter alia, suspending employees from the company's Organization Review Board (ORB, i.e. an employer/employee committee) because of their union membership, activities or prounion sentiment; and violated Section 8(a)(3) and (1) by suspending or discharging certain employees and by removing other employees from the ORB. The judge dismissed charges that the respondent violated Section 8(a)(4), (3), and (1) by issuing a disciplinary report to an employee and suspending another; and dismissed a charge that it violated Section 8(a)(4) by discharging an employee. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Food and Commercial Workers Local 700; complaint alleged violations of Section 8(a)(1), (3), and (4). Hearing at Ft. Wayne, Jan. 29-31, Feb. 1, 1997. Decision issued by Adm. Law Judge Leonard M. Wagman, Sept. 12, 1996.

* * *

Ameraglass Co. (16-RC-9879; 323 NLRB No. 120) Houston, Tex. May 9, 1997. The Board adopted the Hearing Officer's findings and recommendations regarding an election in which the tally was 3 for and 4 against Painters Local 1008. Applying B&D Plastics, 302 NLRB 245 (1991), the election results were set aside and a second election was ordered because the employer announced health insurance and vacation benefits that were improvements on existing policies and adversely affected the outcome of the election. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Auntie Anne's (2-RC-21795; 323 NLRB No. 130) New York, N.Y. May 7, 1997. The Board adopted the Regional Director's decision to set aside an election in which the tally was 5 votes for and 5 votes against I.S.I.S.T.H.E. District 6, with no challenged ballots. The Regional Director ordered a new election held after determining that the employer failed to provide the Excelsior list by the close of business on the seventh day after the approval of the stipulated election agreement, citing North Macon Health Care Facility, 315 NLRB 359 (1994). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

United Parcel Service (7-CA-37666; 323 NLRB No. 98) Livonia, Mich. April 30, 1997. The Board affirmed the administrative law judge's findings that the respondent violated Section 8(a)(1) and (5) of the Act by unilaterally changing the call-in procedure for on-call feeder drivers without affording the union prior notice or an opportunity to bargain. Chairman Gould would overrule Rust Craft Broadcasting of New York, 225 NLRB 327 (1976), and find that the unilateral implementation of timeclocks in that case to be a unilateral change in employees' terms and conditions of employment in violation of Section 8(a)(5). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 243; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit, Sept. 17, 1996. Decision issued by Adm. Law Judge Judith Ann Dowd, Dec. 2, 1996.

* * *

Bufco Corp., et al. (25-CA-15111, et al.; 323 NLRB No. 104) Evansville, Ind. April 30, 1997. Upholding the administrative law judge's supplemental decision, the Board found that the respondents were jointly and severally liable for a remedial obligation to pay certain former employees a total of $136,556 plus interest as a result of violating Section 8(a)(5) and (1) of the Act. The judge stated that the Corbetts' blurring of a separate corporate identity and their misuse of the assets of the corporations they control "is unfair, unjust, and has resulted in an evasion of the remedial and backpay obligations for unfair labor practices that the Corbetts have committed." ... "[T]he corporate veil should be pierced and Bill Corbett, Lucinda Corbett, and Mark Corbett, along with the entities they own and control, ..., should be jointly and severally liable for the involved remedial obligation under the Act." (The union involved in this case is Electrical Workers IBEW Local 16.) [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Supplemental decision issued by Adm. Law Judge John H. West, April 24, 1996.

* * *

The Bionetics Corp. (14-RC-11695; 323 NLRB No. 106) St. Louis, Mo. April 30, 1997. This Decision, Direction, and Order involves an election where the tally was 35 votes for and 33 against the National Association of Government Employees Local R7-1, with 9 challenged ballots, a sufficient number to affect the results. The Board adopted pro forma most of the Regional Director's findings and recommendations, and further found that the challenges to certain ballots required a hearing. The Board directed that a hearing be held and that findings of fact and recommendations be made to the Board. Dissenting in part, Member Fox would remand for evidence regarding Objection 1 involving a raffle conducted by the employer on election day where a table was manned by an individual that the Regional Director determined was an employee rather than a supervisor based on an affidavit submitted by the employer. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Mrs. Baird's Bakeries, Inc. (16-RD-1383; 323 NLRB No. 103) San Antonio, Tex. April 30, 1997. In this Supplemental Decision, Direction, and Order, the Board reviewed a determinative challenge in an election and the Hearing Officer's supplemental report recommending that Guadalupe Roman Mireles was not an eligible voter because he was transferred to a non-bargaining unit job prior to the election. The Board disagreed with the Hearing Officer's finding that Mireles did not have a reasonable expectation of recall to his former bargaining unit position. Finding that Mireles' transfer was temporary, the Board overruled the challenge and directed that Mireles' ballot be opened and counted, and a revised tally and certification of election be issued. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Thalbo Corp. (2-CA-24990; 323 NLRB No. 105) Newburgh, N.Y. April 30, 1997. The Board found that the administrative law judge correctly determined the amount of backpay owed discriminatee Paulette DiMilta. In so finding, the judge concluded, inter alia, that the respondent's prior reinstatement offer was invalid, and that none of the respondent's other arguments (i.e., the closing of respondent's operation of the bar, of DiMilta's alleged retirement) shortened the backpay period or reduced the amount of backpay in the compliance specification. The judge also found that a district court decision affirming a magistrate's decision on a sexual harassment case involving the same parties and addressing a backpay issue was not binding on the issue of backpay in the instant case and did not preclude the Board from litigating the issue. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Supplemental Decision issued by Adm. Law Judge Steven Fish, Jan. 16, 1997.

* * *

Gibraltar Steel Corp. of Tennessee (10-RC-14722; 323 NLRB No. 100) Chattanooga, Tenn. April 30, 1997. The Board adopted the Hearing Officer's recommendation on an objection filed in an election in which the tally of ballots showed 13 votes for and 5 against Teamsters Local 515. The Hearing Officer concluded that the employer did not establish that the alleged objectionable conduct occurred within the critical period starting with the date the petition was filed, and even if it had, Teamsters Representative Frank Logan did not make the statements attributed to him, i.e., that there would be unlawful slowdowns, industrial sabotage or other unlawful actions if the union was unsuccessful in negotiating a contract. The Board ordered that a Certification of Representation issue. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Pioneer Recycling Corp. and Pioneer Carting Corp. (2-CA-27923, 28010; 323 NLRB No. 107) New York, N.Y. May 7, 1997. The administrative law judge found, with Board concurrence, that the respondent violated Section 8(a)(1) of the Act by promising benefits if employee Daniel Cherry withdrew his grievance; threatening him with bodily harm because he assisted the union; locking him in a garbage truck for 2 hours; interrogating him and inducing him to sign a letter repudiating a charge filed in his behalf; and shooting him with a pellet gun. The respondent was also found to have violated Section 8(a)(1), (3), and (4) by discharging Cherry because of his union or protected activities. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 813; complaint alleged violations of Section 8(a)(1). Hearing at New York City, April 1-3, 25, 1996. Decision issued by Adm. Law Judge Steven Davis, Jan. 8, 1997.

* * *

Task Force Security & Investigations, Inc. (22-CA-18578; 323 NLRB No. 112) Brooklyn, N.Y. May 8, 1997. In this Second Supplemental Decision and Order, the Board affirmed the administrative law judge's finding that Task Force Security & Investigations (N.J.) and Task Force Security & Investigations (N.Y.) constitute a single employer and that Respondent N.Y. is liable for the backpay due and owing employees as a result of unfair labor practices committed by Respondent N. J. (In an earlier decision (312 NLRB 412), the Board found that Respondent N.J. had violated Section 8(a)(1) and (3) of the Act by, inter alia, discriminating against employees based on their activities with Independent Brotherhood of Security Employees LOCAL 1.) [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Hearing at Newark, Dec. 16, 1996. Supplemental Decision issued by Adm. Law Judge Steven Davis, Feb. 11, 1997.

* * *

Alexander Bistritzky (2-RC-21772; 323 NLRB No. 86) New York, N.Y. April 24, 1997. The Board found that Alexander Bistritzky and the corporations Hudson View Realty LLC, 729 West 186th Corp., and 10 Overlook Realty LLC are a single employer, given the common management, centralized control of labor relations, interrelations of operations, and close family connection. On Dec. 13, 1996, the Regional Director issued a Decision and Direction of Election in which he found Alexander Bistritzky to be an employer of 5 employees comprising the petitioned-for unit of service and maintenance employees working in the three buildings at issue. The Board remanded the case to the Regional Director for further appropriate action after denying the employer's request for review. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Advanced Stretchforming International, Inc. (21-CA-29104; 323 NLRB No. 84) Gardena, Calif. April 25, 1997. Chairman Gould and Member Fox held that the employer violated Section 8(a)(5) and (1) of the Act by unilaterally changing the terms and conditions of employment of unit employees when it commenced operations without prior notice to and providing Auto Workers Local 509 an opportunity to bargain over them. Chairman Gould and Member Fox concluded that "by declaring at the outset that there would be no union at its facility, the Respondent, like a successor that discriminatorily refused to hire a majority of its predecessor's employees in order to avoid recognizing and bargaining with a union, forfeited its Burns right to set initial terms and conditions of employment without first bargaining with the Union." NLRB v. Burns Security Services, 406 U.S. 272 (1972). [TEXT] [PDF]

Member Higgins, concurring, did not adopt all of his colleagues' analysis, noting that the employer did not merely utter the unlawful "no union" statement; it acted on it. He pointed out that "within days" of the employer's statement, the union repeatedly demanded that the employer recognize and bargain with it. Member Higgins wrote: "Rather than accede to these demands, as it was obligated to do, the Respondent promptly conducted an unlawful poll of employee sentiment. Further, within 2 weeks of its unlawful statement, the Respondent expressly refused to recognize the Union, in violation of Section 8(a)(5) and (1). Thus, the Respondent by both act and word, violated Section 7 rights and dishonored its Burns obligations. Having done so, it cannot claim the privilege of setting initial terms and conditions for unit employees."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Auto Workers Local 509; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles over 4 days between Sept. 23 and Oct. 14, 1993. Adm. Law Judge William L. Schmidt issued his decision Nov. 18, 1994.

* * *

Triple H Electric Co., Inc. (26-CA-17268; 323 NLRB No. 90) Sheridan, Ark. April 25, 1997. The Board upheld the administrative law judge's conclusion that the employer violated Section 8(a)(3) and (1) of the Act by discharging Kenneth Freeman and refusing to allow Kelly Bedard to return to work because of their support for Electrical Workers IBEW Local 1516; and violated Section 8(a)(1) by interrogating Marvin Rouse and Ed Tankersley regarding their union membership and intimating that it was going to discharge Bedard. In affirming the judge's conclusion with respect to Freeman's discharge, the Board noted that the criteria for establishing a prima facie case had been met and was not rebutted. Chairman Gould, in affirming the judge's finding that the employer unlawfully interrogated Rouse and Tankersley, found it unnecessary to rely on Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F. 2d 1006 (9th Cir. 1985). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 1516; complaint alleged violation of Section 8(a)(1) and (3). Adm. Law Judge Arthur J. Amchan issued his decision Dec. 4, 1996.

* * *

Avante At Boca Raton, Inc. and Avante Terrace At Boca Raton, Inc. (12-RC-8034; 323 NLRB No. 93) Boca Raton, Fla. April 25, 1997. Affirming the hearing officer's recommendations, the Board overruled the employer's Objections 1, 2, 3, and 6 to an election held December 20, 1996; and certified 1115 Nursing Home, Hospital & Service Employees Union-Florida as the exclusive collective-bargaining representative of the employer's certified nursing assistants, restorative aides, activities assistants, dietary aides, cooks, dietary porters, maintenance assistants, receptionist and central supply clerk. The union won the election 38-31. [TEXT] [PDF]

Objection 1 alleged that union observers improperly maintained a record of which employees voted during the election. Objection 2 alleged that the arrangements in the polling area, including the placement of the ballot box, created the impression that the observers and others could determine how employees voted. Objection 3 alleged that election notices and ballots were not translated to provide employees who do not read English with sufficient information to cast an informed vote. Objection 6 contained catchall language. In the absence of exceptions, the Board adopted pro forma the hearing officer's recommendation to overrule the employer's Objection 4 alleging that union agents, employees, and representatives provided financial inducements to eligible voters; and Objection 5 alleging that union agents, employees and representatives threatened and coerced employees.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

General Security Services Corp. (8-CA-28064; 323 NLRB No. 89) Cleveland, Ohio April 25, 1997. Affirming the administrative law judge's decision, the Board held that the respondent violated Section 8(a)(1) and (3) by refusing to reinstate two employees to their former positions because of their union activities or because of union activities on their behalf. The judge concluded that the General Counsel proved partial unlawful motivation for the respondent's failure to reinstate the employees, but that the respondent failed to meet its Wright Line burden that it would have taken the same action even in the absence of the protected activity. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by William I. Fadel; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cleveland, July 18-19, 1996. Decision issued by Adm. Law Judge Thomas R. Wilks, Nov. 29, 1996.

* * *

Fredon Corp. (8-CA-27797; 323 NLRB No. 91) Mentor, Ohio April 28, 1997. The administrative law judge found, with Board concurrence, that the respondent did not violate Section 8(a)(1) and (3) of the Act when it discharged an employee allegedly because of his union activities. On the contrary, the judge concluded that the respondent discharged the employee because of his poor work performance and "outspoken indifference to the quantity and quality of his work and for no other reasons." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by John Zelenak, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cleveland, Nov. 13, 1996. Decision issued by Adm. Law Judge Marvin Roth, Jan. 3, 1997.

* * *

Dave Transportation Services, Inc. (28-RC-5481; 323 NLRB No. 95) Mesa, Ariz. April 25, 1997. Affirming the Regional Director's recommendations, the Board overruled the employer's objection alleging that language in literature distributed to employees by the union created the impression that the Board endorsed the union. The Board certified Teamsters Local 104, winner by a 23-to-15 vote in an election held February 21, 1997, as the exclusive representative of all bus drivers working for the employer. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Cassis Management Corp. (2-CA-29311; 323 NLRB No. 68) Dobbs Ferry, N.Y. April 14, 1997. Chairman Gould and Member Fox upheld the administrative law judge's findings that the employer discharged the entire bargaining unit in violation of Section 8(a)(3) and (1) of the Act, and that the employees should be offered reinstatement and made whole for their losses. However, Chairman Gould and Member Fox reversed the judge and found that Donald Hoy is not a supervisor within the meaning of Section 2(11), that he was unlawfully discharged, that the authorization cards solicited by him were valid, that Service Employees Local 32E demonstrated that a majority of the unit employees wished to be represented by it, and therefore, that there is a basis for a Gissel bargaining order. The majority remanded the case to the judge for credibility resolutions concerning a union representative's alleged picket line misconduct and the employer's defense, citing Laura Modes Co., 144 NLRB 1592 (1963), that the misconduct precluded a bargaining order. [TEXT] [PDF]

Member Higgins, dissenting, agreed with the judge that Hoy is a supervisor and that the cards he solicited are not valid and cannot be used to support a bargaining order.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Service Employees Local 32E; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, July 22-24, 31 and Aug. 1, 1996. Adm. Law Judge Raymond P. Green issued his decision Sept. 30, 1996.

* * *

Longshoremen's Local 3033 (Coastal Cargo Company) (15-CD-302; 323 NLRB No. 92) New Orleans, La. April 28, 1997. Relying on the collective-bargaining agreement between Coastal and Teamsters Local 270, employer preference and past practice, and economy and efficiency, the Board awarded the offloading of pipe from delivery trucks and the loading of it on the ship Fastov at the port of Greater Baton Rouge, to Coastal employees represented by Local 270. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Necedah Screw Machine Products, Inc. (30-RC-5812; 323 NLRB No. 94) Necedah, Wis. April 28, 1997. Agreeing with the hearing officer, the Board overruled the challenges of the Machinists International to the ballots cast by Joseph Kroll, Gerald Ruskowsky, Donald Henningsen, Robert Thomas, Jr., and Jeffrey Sunday in an election held September 26, 1996; and directed the Regional Director to open and count the ballots and to issue a revised tally of ballots and the appropriate certification. The union had alleged that the five individuals were ineligible voters because they are supervisors. The original tally of ballots shows 44 for and 39 against the petitioner, with 5 challenged ballots. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Seven-Up/Royal Crown Bottling Companies of Southern California, Inc. (21-RC-19744; 323 NLRB No. 96) Vernon, et al., Calif. April 29, 1997. The Board, noting that the intervenor had actual notice of the petition prior to the date on which it claims and that it stipulated and agreed to the election date, overruled the intervenor's (Industrial, Service, Transportation, Professional, and Government Workers) Objection 1 regarding the failure to provide it with adequate notice of the filing of the election petition and an adequate period to campaign. The Board certified Amalgamated Industrial Workers (the petitioner) as the exclusive representative of employees working at the employer's facilities in Vernon, Oxnard, Buena Park, Orange, and San Fernando, California. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Tocco, Inc. (10-CA-28082; 28260; 323 NLRB No. 72) Boaz, Ala. April 18, 1997. The Board adopted the administrative law judge's findings that the respondent violated Section 8(a)(5), (3), and (1) of the Act by unilaterally and discriminatorily eliminating, for unit employees, its policy of granting education and relocation assistance. The judge's order was modified to more closely conform to the violations found. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by United Auto Workers; complaint alleged violation of Section 8(a)(5), (3) and (1). Hearing at Boaz, Ala., June 12, 1995. Decision issued by Adm. Law Judge J. Pargen Robertson, Aug. 7, 1995.

* * *

C.R. General, Inc. (25-CA-23778, et al.; 323 NLRB No. 78) Indianapolis, Ind. April 21, 1997. The administrative law judge's conclusions were upheld by the Board. Generally, the judge found that the respondent violated Section 8(a)(1) of the Act by telling employees that those involved in union activities would be transferred from job to job until they quit and by promulgating a rule prohibiting the distribution of union literature at its job site; and violated Section 8(a)(1) and (3) by taking unlawful disciplinary action against and ultimately discharging certain union activist employees, and by changing its application retention policy to discourage the recall of employees who engaged in union or protected activities. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers (IBEW) Local 481 and Papino S. Loyd (an individual); complaint alleged violations of Section 8(a)(1) and (3). Hearing at Indianapolis, June 17-18, 1996. Decision issued by Adm. Law Judge Wallace H. Nations, Sept. 24, 1996.

* * *

Colgate-Palmolive Co. (9-CA-32158; 323 NLRB No. 82) Jeffersonville, Ind. April 23, 1997. Affirming the administrative law judge, the Board held that the respondent's installation and use of hidden surveillance cameras in the workplace was a mandatory subject of bargaining and one which the union had a statutory right to bargain over. Thus, the Board affirmed the judge's finding that the respondent violated Section 8(a)(1) and (5) of the Act when it failed and refused to bargain over this issue after the union sent a bargaining demand letter. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Chemical Workers Local 15; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Louisville, Ky., May 2, 1995. Decision issued by Adm. Law Judge Richard H. Beddow Jr., Sept. 13, 1995.

* * *

Carpenters Local 210 (A.F. Underhill, Inc.) (34-CD-55; 323 NLRB No. 83) Canton, Mass. April 24, 1997. In this Section 10(k) proceeding, the Board determined that employees represented by Carpenters Local 210 Western Connecticut were entitled to perform the work in dispute, relying on employer preference, past practice, and economy and efficiency of operation. Bricklayers District Council of Connecticut contended that Carpenters Local 210 had violated Section 8(b)(4)(D) by engaging in proscribed activity with an object of forcing Underhill to assign certain work to employees represented by the Carpenters rather than employees represented by the Bricklayers. [TEXT] [PDF]

(Chairman Gould and Member Higgins participated. Member Fox did not participate in the decision on the merits.)

* * *

Quazite Corp. (10-CA-25383, et al.; 323 NLRB No. 80) Lenoir City, Tenn. April 23, 1997. The Board held that the employer did not unlawfully withdraw recognition from Chemical Workers Local 3-987, finding an insufficient nexus between the employer's unremedied unfair labor practices and the petitions signed by employees stating that they no longer desired union representation. The Board's prior decision and order is reported at 315 NLRB 1068 (1994). On June 28, 1996, the U.S. Court of Appeals for the D.C. Circuit enforced the Board's findings that the employer violated 8(a)(1) and (5) of the Act before it withdrew recognition. The Court declined to enforce the Board's finding that the withdrawal of recognition violated Section 8(a)(5) and its bargaining order and remanded the case to the Board to reconsider its conclusion that the employer's unlawful conduct undermined employee support for the union. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Geiger Ready-Mix Co. of Kansas City, Inc.; et al. (17-CA-16244; 323 NLRB No. 79) Kansas City, Kansas April 23, 1997. The Board modified its decision and order (315 NLRB 1021 (1994)) to provide for the reinstatement of those former employees who would have performed unlawfully transferred work and remanded the case to the Regional Director to determine the amount of unlawfully transferred unit work and the number of employees who would have done the work. Previously, the Board found that the employer unlawfully failed to provide notice to and bargain on request with Teamsters Local 541 about the 1992 decision to close its unionized Speaker Road plant, lay off unit employees, and reassign bargaining unit work to nonunit employees. On July 5, 1996, the D.C. Circuit affirmed the Board's unfair labor practice findings and enforced all of the order except for the reinstatement remedy. 87 F.3d 1363. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Dobbs International Services, Inc. (1-CA-31889; 323 NLRB No. 71) Boston, Mass. April 11, 1997. The administrative law judge found, and the Board concurred, that the respondent did not violate the Act when it discharged an employee who was a union activist. According to the judge's findings, the employee was discharged because he was responsible for a watering truck which hit and damaged an airplane and not because of his union activities. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Shawn M. Gordon, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Boston, May 20-21, 1996. Decision issued by Adm. Law Judge Raymond P. Green, Aug. 7, 1996.

* * *

Bultman Enterprises, Inc. d/b/a Le Rendezvous Restaurant and Taber Partners I d/b/a Ambassador Plaza Hotel & Casino, a Radisson Plaza Hotel (24-CA-7129; 323 NLRB No. 66) San Juan, P.R. April 14, 1997. The Board found that the administrative law judge's decision with respect to the joint employer and joint liability allegations to which respondent Taber excepted, merited further consideration in light of the Jeffboat Division (9-UC-405), et al. cases pending before the Board. Thus, the Board severed for further consideration the issues of the joint employer status of the Ambassador Hotel and its joint liability for unfair labor practices engaged in by respondent Bultman. No exceptions were filed to the judge's findings of Section 8(a)(1), (3), and (5) violations which included a finding that Bultman did not hire certain employees after it contracted to operate the Ambassador's restaurant because they were "contaminated" by their union affiliation and because Bultman wanted to avoid employing a workforce with a majority represented by a union. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Union Gastronomica de Puerto Rico, Local 610, HEREIU; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Hato Rey, P.R., Aug. 28-30, 1995. Decision issued by Adm. Law Judge Benjamin Schlesinger, June 3, 1996.

* * *

Visone Construction, Inc. (3-CA-18309, 19295; 323 NLRB No. 73) Depew, N.Y. April 16, 1997. With some modifications, the Board adopted the administrative law judge's conclusion that the respondent violated Section 8(a)(5) and (1) by failing to comply with the union's request for information. The respondent had executed two separate collective-bargaining agreements with the union: the Associated General Contractors (AGC) agreement and the Independent Building Contractors (IBC) agreement. Both agreements were automatically renewed by the failure of the respondent to seek termination or modification pursuant to the terms of the agreements. The respondent's position was that it was no longer bound to the AGC or the IBC contracts pursuant to an alleged oral agreement between the respondent's president and the union's president. The judge concluded that the respondent was bound to the AGC and IBC agreements at all times material to the information requests. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Operating Engineers Local 17; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Buffalo, July 24, 1995. Decision issued by Adm. Law Judge Howard Edelman, Jan. 16, 1997.

* * *

University of Pittsburgh Medical Center (6-CA-27252; 323 NLRB No. 70) Pittsburgh, Pa. April 16, 1997. The Board upheld an administrative law judge's supplemental decision that found that the respondent did not violate Section 8(a)(1) and (3) of the Act by denying a special recognition bonus to employee Martin Wetmore because of his union activities. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by United Plant Guard Workers of America Local 502; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Pittsburgh, Oct. 24, 1995. Decision issued by Adm. Law Judge Peter E. Donnelly Feb. 9, 1996; supplemental decision issued Dec. 31, 1996.

* * *

Orbit Lightspeed Courier Systems, Inc. (2-CA-27842, et al. and 2-RC-21473; 323 NLRB No. 59) New York, N.Y. March 31, 1997. Affirming the decision of the administrative law judge, as clarified, the Board held that the employer violated Section 8(a)(3) and (1) of the Act by issuing warnings to and discharging Jennifer Roesch and Robert Marshall because they supported Teamsters Local 804; and violated Section 8(a)(1) in various respects by, among other things, threatening employees with discharge and layoffs, reduced work assignments, and the imposition of new work rules if they selected the union as their representative. The Board found it unnecessary to pass on the judge's finding that the employer violated Section 8(a)(1) when its part owner Robert Wyatt threatened to kill employee Mostata Ali, since the threat is cumulative of the other unfair labor practices found and does not affect the remedy and order. [TEXT] [PDF]

Based on the employer's unlawful conduct, 20 election objections were sustained. Additionally, 22 objections were overruled. The union withdrew seven of its objections. The Board set aside the election held November 18, 1994, which the union lost 92-89, and directed that a new election be conducted.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Local 840; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York on 16 days between July 17 and Oct. 7, 1995. Adm. Law Judge Eleanor MacDonald issued her decision May 20, 1996.

* * *

Midwest Power Systems, Inc. (18-CA-12545; 323 NLRB No. 61) Des Moines, Iowa April 4, 1997. On a stipulated record, Chairman Gould and Member Fox concluded that the employer violated Section 8(a)(5) and (1) of the Act by announcing and implementing changes to the future retirement and medical and life insurance benefits of current bargaining unit employees without giving Electrical Workers IBEW Local 499 notice and an opportunity to bargain about the changes and their effects. Member Higgins, dissenting, concluded that the employer reserved the right to change benefits without prior notice and that the union knowingly waived its bargaining rights as to the changes. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 499; complaint alleged violation of Section 8(a)(1) and (5). Parties waived a hearing before an administrative law judge.

* * *

Scott-New Madrid-Mississippi Electric Cooperative (14-CA-24111; 323 NLRB No. 63) Sikeston, Mo. April 9, 1997. The administrative law judge found, with Board approval, that the respondent violated Section 8(a)(1) of the Act by implying that an employee would not receive training, threatening an employee with physical harm, and calling an employee a "troublemaker"; and violated Section 8(a)(1) and (3) by denying training to Marsha Mitchell -- all because of union activities. The Board upheld the judge's conclusion that an alleged Section 8(a)(5) violation did not occur. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers (IBEW) Local 702; complaint alleged violations of Section 8(a)(1), (3), (5). Hearing at St. Louis, Oct. 9-10, 1996. Adm. Law Judge Albert A. Metz issued his decision Dec. 16, 1996.

* * *

Bryant & Stratton Business Institute (3-CA-19749, et al.; 323 NLRB No. 67) Buffalo, N.Y. April 8, 1997. In a decision in which it granted the General Counsel's Motion for Partial Summary Judgment, the Board concluded that the respondent twice violated Section 8(a)(1) and (5) by withdrawing recognition from UAW Local 2294 and by failing and refusing to provide the union with requested information. Remaining allegations on which summary judgment was not sought were remanded to the Regional Director. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by UAW Local 2294; complaint alleged violations of Section 8(a)(1) and (5). Motion for Partial Summary Judgment filed on Dec. 4, 1996.

* * *

Cook Family Foods, Inc. (9-CA-321539, et al.; 323 NLRB No. 62) Grayson, Ky. April 9, 1997. The Board reversed the administrative law judge, who found that the respondent's failure to discharge two supervisors for examining a rifle in a parking lot in front of striking employees who were picketing rendered the respondent's discharge of the strikers for strike misconduct discriminatory. The Board stated: "Unlike the judge, however, we do not find that [the supervisors'] errant actions, undertaken solely for the purpose of examining a rifle that was for sale, were of equal or greater severity than the strikers' misconduct, which was intended to cause property damage. We therefore, do not find that the Respondent's failure to discharge [the supervisors] for this conduct rendered the Respondent's discharge of the strikers for strike misconduct discriminatory. Accordingly, we conclude that the Respondent's discharge of the strikers did not violate Section 8(a)(3) and (1) of the Act." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Firemen and Oilers; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Grayson, Ky., Oct. 24-26, 1995 and March 25-27, 1996. Decision issued by Adm. Law Judge Steven M. Charno, June 26, 1996.

* * *

Laben Electric Co. (28-CA-13370; 323 NLRB No. 65) Albuquerque, N.M. April 9, 1997. The Board agreed with the administrative law judge's findings that the respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire Kevin Prendergast because of his union membership and activities; and violated Section 8(a)(3) and (1) by accelerating the layoffs of employees Leroy Chavez and Richard McDermott because of their union activities. However, the Board modified the judge's Order to provide both a make-whole remedy and reinstatement, but with an opportunity at compliance for the respondent to limit its remedial obligations by showing that McDermott and Chavez would not have been transferred to other projects. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers (IBEW) Local 611; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Albuquerque, May 14-16, 1996. Decision issued by Adm. Law Judge Jay R. Pollack, Sept. 11, 1996.

* * *

Five Hospital Homebound Elderly Program (13-RC-19186; 323 NLRB No. 69) Chicago, Ill. April 10, 1997. The Board considered a determinative challenge in an election held on Oct. 27, 1995, and found merit in the employer's exception to the hearing officer's recommendation that the challenge to Patricia Moscato's ballot be sustained. The Board found that during the 13 weeks prior to the eligibility date, Moscato's average weekly number of work hours met the Davison-Paxon formula and concluded that Moscato was eligible to vote in the election. Accordingly, the Board overruled the challenge to her ballot. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Nyeholt Steel, Inc. (7-CA-36973(E); 323 NLRB No. 64) Holt, Mich. April 10, 1997. The Board reversed the administrative law judge's findings and denied the respondent's application for attorneys' fees and expenses under the Equal Access to Justice Act. In the underlying unfair labor practice case, the Board adopted, in the absence of exceptions, the judge's finding that the respondent unlawfully interrogated its employees in violation of Section 8(a)(1) and his recommended dismissal of the complaint allegation that the respondent unlawfully discharged five employees in violation of Section 8(a)(3) and (1). In this supplemental decision, the Board ruled that the General Counsel "acted reasonably in issuing the complaint's discharge allegation and proceeding to a hearing at which the judge could assess the credibility of the witnesses and weigh the evidence in light of those findings" and that the General Counsel's position was "substantially justified throughout the proceeding." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Adm. Law Judge Steven M. Charno issued his supplemental decision July 24, 1996.

* * *

Patterson-Stevens, Inc. (3-CA-17908; 323 NLRB No. 54) Tonawanda, N.Y. March 31, 1997. The Board affirmed the administrative law judge's supplemental order, as modified, and ordered the employer to make whole seven employees by paying them backpay amounts totaling $131,391.28 and by paying amounts totaling $113,277.53 to various welfare and benefit funds on their behalf. The Board modified the judge's order to include $32.28 of "half time payments" to employee Little. The Board's decision and order in the underlying unfair labor practice case is reported at 313 NLRB 1229 (1994). On January 17, 1995, the U.S. Court of Appeals for the Second Circuit enforced in full the Board's decision and order. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Hearing at Buffalo, June 17 and 18, 1996. Adm. Law Judge Steven Davis issued his decision Sept. 27, 1996.

* * *

Cooking Good Division of Perdue Farms, Inc. (15-CA-13266, 13272 and 15-RC-7905; 323 NLRB No. 50) Dothan, Ala. March 31, 1997. The administrative law judge found, and the Board agreed, that the employer violated Section 8(a)(3) and (1) of the Act in several respects and engaged in conduct that interfered with an election held in Case 15-RC-7905 on June 15, 1995 by threatening employees and timing a wage increase, including the elimination of an attendance bonus, in order to influence employees' support of Laborers Local 784. The Board sustained the union's election Objections 6 and 16 which correspond to the violations found, set aside the election (the union lost 646 to 242), and directed that a second election be held. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Laborers Local 784; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Dothan, June 3-7 and July 15-16, 1996. Adm. Law Judge Albert A. Metz issued his decision Dec. 5, 1996.

* * *

M & M Electric Company, Inc. (11-CA-16531; 323 NLRB No. 53) Charleston, S.C. March 31, 1997. Although the Board agreed with the administrative law judge that the employer laid off William Coker because of his activity for Electrical Workers IBEW Local 776, it disagreed with his finding that Coker's earlier transfers to ongoing projects were so motivated. The Board found that the employer demonstrated that it had legitimate, nondiscriminatory reasons for transferring Coker, and that it would have done so even absent his union activity. The employer is a nonunion electrical contractor specializing in commercial and industrial electrical work on an on-call basis. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 776; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Charleston, Jan. 17-18, 1996. Adm. Law Judge Lawrence W. Cullen issued his decision Oct. 4, 1996.

* * *

Everfresh Beverages f/k/a EB Acquisition Corp., successor (7-CA-38325; 323 NLRB No. 52) Warren, Mich. March 31, 1997. The Board, in agreeing with the administrative law judge that the employer violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Teamsters Local 41, rejected, as did the judge, the employer's assertion that it did not have an obligation as a successor employer to bargain with the union because, at the time of the union's bargaining demand, it did not employ a substantial and representative complement of its intended workforce. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 51; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit on Sept. 18, 1996. Adm. Law Judge William F. Jacobs issued his decision Nov. 18, 1996.

* * *

Underwriters Laboratories, Inc. (32-CA-13189; 323 NLRB No. 51) Santa Clara, Calif. March 27, 1997. Agreeing with the administrative law judge, the Board found that statements made by union representative Robert Herbruger at an October 27, 1992 employee meeting did not constitute objectionable conduct affecting the results of an election held October 29, 1992. In 1993, the Board found that the employer violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Operating Employees, Stationary Employees Local 39. 312 NLRB 475. Thereafter, the employer filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit and the Board filed a cross-petition for enforcement of its order. On August 24, 1995, the court remanded the case to the Board to hold a hearing regarding Herbruger's alleged threats. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Adm. Law Judge Earldean V.S. Robbins issued her decision Dec. 19, 1996.

* * *

A&P Brush Mfg. Corp. and its alter ego A&P Diversified Technologies, Inc. (2-CA-28129; 323 NLRB No. 44) Bronx, N.Y. and Metuchen, N.J. March 28, 1997. The Board upheld the administrative law judge's findings that A&P Brush Mfg. is the alter ego of A&P Diversified Technologies and that the respondents violated Section 8(a)(5) and (1) of the Act by refusing to honor and apply the terms of the collective-bargaining agreement between A&P Brush Mfg. and Luggage Workers Local 60, New York Joint Boards, Leather Goods, Plastic & Novelty Workers. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Luggage Workers Local 60, New York Joint Boards, Leather Goods, Plastic & Novelty Workers; complaint alleged violation of Section 8(a)(1) and (5). Adm. Law Judge Steven Davis issued his decision Aug. 13, 1996.

* * *

GATX Logistics, Inc. (33-CA-11015; 323 NLRB No. 46) Normal, Ill. March 28, 1996. The administrative law judge found, and the Board agreed, that the employer violated Section 8(a)(3) and (1) of the Act by discharging David Landstrom because it believed he was engaging in activities on behalf of the Machinists' International; and violated Section 8(a)(1) by threatening Landstrom with unspecified reprisals because he wore a jacket containing a union insignia to work. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by the Machinists' International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Peoria on Aug. 28, 1996. Adm. Law Judge George Aleman issued his decision Dec. 3, 1996.

* * *

Michael Adkins, d/b/a Portsmouth Ambulance Service (9-CA-33475, 33622; 323 NLRB No. 45) Portsmouth, Ohio March 28, 1997. The Board upheld the administrative law judge's finding that the employer violated Section 8(a)(3) and (1) of the Act by suspending Linda Bussa in August 1995. Other unlawful conduct found by the judge included threatening employees with closure of its business and that employees who support the union would be fired, interrogating employees about union activities, promulgating an overly broad no-solicitation, no distribution rule, and discriminatorily changing the terms and working conditions of employees by rejecting employees' request to switch assignments. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed the Mine Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Portsmouth, May 22-23 and July 15-17, 1996. Adm. Law Judge Richard H. Beddow, Jr. issued his decision Nov. 15, 1996.

* * *

Mono-Trade Co., Inc. (18-RD-2159; 323 NLRB No. 48) Minneapolis, Minn. March 24, 1997. Affirming the Regional Director's recommendations, Chairman Gould and Member Higgins deferred ruling on the challenge to the ballot of Anita Roberts pending resolution of a grievance filed by Graphic Communications Local 1-B claiming that the employer's layoff/refusal to recall Roberts violated the parties' contract. The results of the mail ballot election shows 2 votes for and 2 votes against the union, with one challenged ballot. The employer challenged Roberts' ballot on the ground that she was permanently laid off and her job was eliminated. [TEXT] [PDF]

Member Fox, dissenting, would remand the case to the Regional Director to determine if Roberts has a reasonable expectancy of recall because it is a separate issue from the subject of the grievance, i.e., whether the employer's layoff/refusal to recall Roberts violated the contract.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Ammex Tax & Duty Free Shops, Inc. (3-RC-10410, 3-CB-7012; 323 NLRB No. 37) Champlain and Rouse's Point, N.Y. March 17, 1997. The Board adopted the administrative law judge's recommended certification of Food and Commercial Workers District Union Local 1 as the exclusive bargaining representative for a particular unit of employees at Amex Tax & Duty Free Shops, and rejected the employer's objection to conduct affecting the results. In so doing, the Board upheld the judge's dismissal of a Section 8(b)(1)(A) charge filed by Michael St. Andrew alleging that the union, acting through its agent, threatened him prior to the election with possible job loss after the election because he questioned the desirability of union representation. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Michael St. Andrew, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Plattsburgh, N.Y., Nov. 6, 1996. Decision issued by Adm. Law Judge William F. Jacobs, Dec. 24, 1996.

* * *

Crystal Art Gallery (29-RC-8576; 323 NLRB No. 34) Maspeth, N.Y. March 11, 1997. The Board adopted the hearing officer's recommendation overruling all of the employer's objections to an election, including allegations that the union forged employee signatures on union authorizations which interfered with the employees' free choice and created the impression among voters that opposition to the union was futile. The Board thus certified that the union was the exclusive bargaining representative of employees in a particular unit. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

GM Electrics, a Sole Proprietorship (31-CA-20959; 323 NLRB No. 14) Ventura, Calif. Feb. 27, 1997. Chairman Gould and Member Browning reversed the administrative law judge and found that Cecily Eaton, the respondent's secretary, is a statutory agent of the respondent and that her telephone comments overheard by union applicants who were seeking employment with the respondent and her interrogation of James Solano violated Section 8(a)(1) of the Act. The majority affirmed the judge's dismissal of the 8(a)(1) allegations concerning statements by respondent agent Greg Murrietta to the union applicants and the 8(a)(3) allegations involving the employer's failure to hire or consider two of eight union applicants. The majority also reversed the judge's finding of no prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's failure to consider six union applicants for jobs. The majority remanded the case to the judge to determine whether the employer satisfied its Wright Line burden and to determine an appropriate remedy for any violation found. [TEXT] [PDF]

Member Higgins, dissenting in part, would adopt all of the judge's dismissals of the complaint's 8(a)(1) and(3) allegations.

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 952; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, July 17-18, 1995. Adm. Law Judge James M. Kennedy issued his decision March 8, 1996.

* * *

Service Employees Local 74 (Parkside Lodge of Connecticut, Inc.) (34-CB-1634; 323 NLRB No. 39) Canaan, Conn. March 21, 1997. Applying California Saw and Weyerhaeuser, Board precedent which issued after the administrative law judge's decision, the Board adopted the judge's finding that the respondent violated Section 8(b)(1)(A) by failing to provide all unit employees notice of their General Motors rights, and further found that the respondent violated Section 8(b)(1)(A) by failing to provide nonunion employees in the bargaining unit notice of their Beck rights. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Kevin L. Orce (an individual); complaint alleged violation of Section 8(b)(1)(A). Hearing at Hartford, Conn., May 10, 1993. Decision issued by Adm. Law Judge D. Barry Morris, Dec. 6, 1993.

* * *

Sheet Metal Workers Local 104 (Ernest Ongaro & Sons) (20-CB-9955; 323 NLRB No. 27) San Anselmo, Calif. Feb. 27, 1997. On a stipulated record, the Board found that Ongaro did not rejoin the multiemployer unit in 1992, and therefore the union's refusal to bargain individually with Ongaro violated Section 8(b)(3) of the Act. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Ernest Ongaro & Sons, Inc.; complaint alleged violation of Section 8(b)(3).

* * *

Matador Lines, Inc. (32-CA-14136; 323 NLRB No. 19) Vacaville, Calif. Feb. 27, 1997. In adopting the judge's decision that the respondent violated Section 8(a)(1) of the Act by effectively discharging workers in punishment for engaging in a strike, the Board found that the strikers made an unconditional offer to return to work prior to the hiring of replacements. The Board also found that, even if the strikers had not made such an offer, the respondent discharged them in violation of Section 8(a)(1) when it informed them that it considered them as having quit. [TEXT] [PDF]

(Members Browning, Fox and Higgins participated.)

Charges filed by Teamsters Local 517; complaint alleged violation of Section 8(a)(1). Hearing at Fresno, Calif., Jan. 31-Feb. 1, 1995. Decision issued by Adm. Law Judge Timothy D. Nelson, April 30, 1996.

* * *

Rochester Manufacturing Co. and Teamsters Local 614 (7-CA-33302 and 7-CB-9219; 323 NLRB No. 36) Rochester, Mich. March 12, 1997. The Board decided that an order requiring the union to give all employees in the bargaining unit, including members of the union, notice of their rights under NLRB v. General Motors, 373 U.S. 734 (1963), and Communications Workers v. Beck, 487 U.S. 735 (1988), is the appropriate make-whole relief for violations when a union has failed to inform or misinformed employees about those rights. The Board concluded that to restrict the remedy to nonmembers would "result in a situation where a segment of the bargaining unit--current members--would receive no notice of their Beck rights at the time that they learn, pursuant to our Order, of the right to become nonmembers." The issue was not considered in California Saw & Knife Works, 320 NLRB 224 (1995), and Paper Workers Local 1033 (Weyerhaeuser Paper Co.), 320 NLRB 349 (1995). In explaining its order to restore the status quo ante, the Board wrote: [TEXT] [PDF]

The Beck notice shall contain sufficient information, for each accounting period covered by the complaint, to enable those employees who were in the bargaining unit during those accounting periods, to decide intelligently whether to object. See, e.g., California Saw, supra 320 NLRB at 253. With respect to those employees who, with reasonable promptness after receiving their notices, elect nonmember status and make Beck objections with respect to one or more of the accounting periods covered by the complaint, we shall order the Respondent Union, in the compliance stage of the proceeding, to process their objections, nunc pro tunc, as it would otherwise have done, in accordance with the principles of California Saw & Knife. The Respondent Union shall then be required to reimburse the objecting nonmember employees for the reduction in their dues and fees, if any, for nonrepresentational activities that occurred during the accounting period or periods covered by the complaint in which the nonmember employee has objected.

Turning to the alleged violations, the Board applied precedent that issued subsequent to the administrative law judge's decision and reversed his finding that the respondents entered into and maintained a collective-bargaining agreement containing a factually unlawful union-security clause requiring unit employees to be "members in good standing" in the union. The Board found that the union violated the Act by failing to provide notice to charging party James Cecil and other unit employees of their rights under General Motors and Beck. The Board found no merit in the parallel allegation against Rochester, but it found that Rochester violated the Act in a number of respects relating to its enforcement of union security. With respect to Rochester's deduction of dues pursuant to coercively obtained checkoff authorizations, the Board did not order any additional reimbursement of moneys because the affected employees were subject to a lawful union-security clause obligating them to pay dues.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by James Cecil, an individual; complaint alleged violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2). Hearing at Detroit, Nov. 16-17, 1992. Adm. Law Judge Frank H. Itkin issued his decision March 31, 1993.

* * *

Metropolitan Council of Newspaper Unions (Detroit Newspapers) (7-CC-1667, 1670; 323 NLRB No. 38) Detroit, Mich. March 14, 1997. The Board rejected a unilateral formal settlement executed by the General Counsel and the respondent unions over objections of the Charging Party, Detroit Newspapers. Members Fox and Higgins upheld the third of three objections and found that statements made in the unions' strike publication "tend to undermine the stipulated notice to employees, which provides that the Unions will cease and desist from unlawful secondary boycott activities, and are clearly grounds for disapproval of the settlement under prior Board decisions." The consolidated complaints allege that the unions engaged in unlawful secondary boycott activities in violation of Section 8(b)(4)(ii)(B) in connection with their 19-month strike against the Detroit News and the Detroit Free Press. [TEXT] [PDF]

In a separate concurring opinion, Chairman Gould agreed with the majority but also would rely on the second objection, i.e., that the settlement fails to address allegations that the unions engaged in certain illegal secondary boycott activity, including signal picketing, mass handbilling, and walkthroughs. Stated Chairman Gould: "Thus, by including a nonadmission clause and failing to specify in the order whether the alleged types of conduct are prohibited and subject to contempt sanctions, the settlement leaves such close issues essentially unresolved....Accordingly, the Board in my view should jealously guard against any and all conduct which undermines or destroys the efficacy of the Board's notice or other remedies."

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Quebecor Printing Dickson, Inc. (26-CA-17133, 26-RC-7760; 323 NLRB No. 15) Dickson, Tenn. Feb. 27, 1997. The Board affirmed the administrative law judge's findings that the employer violated Section 8(a)(3) and (1) of the Act by suspending and discharging William John Revis because of his union affiliation and threatening employees that it had no place for employees with Revis' attitude. The Board affirmed, with certain modifications, the judge's recommendations to sustain the union's objections alleging that the employer interfered with the election held November 6 and 7, 1995 in Case 26-RC-7760 by threatening employees with discharge, soliciting grievances from employees, and granting improved health care benefits to employees during the election campaign. The Board set the election aside and directed that a second election be held. [TEXT] [PDF]

Having affirmed the judge's recommendations to sustain the objections alleging threats of job loss, solicitation of grievances and promises to remedy them, and granting of benefits, the Board found it unnecessary to pass on the judge's recommendation to sustain the union's objection alleging that the employer disparately enforced its no-solicitation rule by allowing the antiunion "Think Twice Committee" to campaign inside the plant. In the absence of exceptions, the Board adopted, pro forma, the judge's recommendation that the union's Objection 1, involving an alleged objectionable interrogation, be overruled.

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Graphic Communications International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Nashville, April 8 and 9, 1996. Adm. Law Judge J. Pargen Robertson issued his decision Sept. 23, 1996.

* * *

Teamsters Local 469 (Coastal Tank Lines) (22-CB-5466; 323 NLRB No. 23) Newark, N.J. Feb. 27, 1997. Affirming the administrative law judge's findings, the Board ordered the respondent to make whole 22 discriminatees by paying to them backpay totaling $64,065.54 and remanded for recomputation the backpay awards for discriminatees Charles Corson and Fred Ferro. The Board modified the judge's decision and recommended Order to provide that the backpay awards for unlocated discriminatees shall be held in escrow for a period not to exceed 1 year to begin upon the respondent's compliance by payment of the backpay for deposit into escrow or the date the Board's Order, including enforcement thereof, becomes final, whichever is later. Citing Starlite Cutting, Inc., 284 NLRB 620 (1987), and Groves Truck & Trailer, 294 NLRB 1 (1989), the General Counsel excepted to the judge's provision that the 1-year escrow period begin from the date of the Board's Order. [TEXT] [PDF]

In the underlying unfair labor practice proceeding, the Board found in its decision and order (290 NLRB 44 (1988)), enf. 897 F.2d 522 (3d Cir. 1990), that the respondent unlawfully failed to inform employees it represents that it had agreed with the employer that the employees were not covered by a pension plan. The Board ordered the respondent to reimburse the employees the difference between the actual cost to them to obtain comparable pension coverage individually had they been informed of the lack of the coverage in April 1976 and the cost of obtaining such coverage currently.

(Members Browning, Fox, and Higgins participated.)

Hearing at Newark, Nov. 13 and Dec. 18, 1995 and Jan. 17 and 18, 1996. Adm. Law Judge Robert T. Snyder issued his decision April 25, 1996.

* * *

Progressive Service Die Company (14-CA-23593; 323 NLRB No. 18) St. Louis, Mo. Feb. 27, 1997. The Board upheld the administrative law judge's conclusion that the employer violated Section 8(a)(5) and (1) of the Act by refusing to recognize Machinists District No. 9 as the exclusive bargaining representative of Electronic Discharge Machine (EDM) programmer-operator Karl Reinheimer and refusing to apply the parties' applicable collective-bargaining agreement to him as a member of the appropriate unit. In exceptions, the employer raised, and the General Counsel did not contest, the existence of changed circumstances that occurred after the hearing and that affect the continued appropriateness of the judge's recommended Order with respect to Reinheimer, the single individual holding the EDM programmer-operator position. The Board left resolution of the matter to the compliance proceeding. [TEXT] [PDF]

The employer is engaged in the manufacture of dies used principally by shoe and apparel manufacturers. In 1995, the employer acquired substantially all of the equipment of Independent Die Service Company and hired nine of Independent's employees, including Reinheimer.

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Machinists District 9; complaint alleged violation of Section 8(a)(1) and (5). Hearing at St. Louis on Aug. 7, 1995. Adm. Law Judge Arline Pacht issued her decision June 28, 1996.

* * *

Illiana Transit Warehouse Corp. (13-CA-33319, et al.; 323 NLRB No. 12) Hammond, Ind. Feb. 27, 1997. The administrative law judge found, and the Board concurred, that the respondent violated Section 8(a)(1) of the Act by, on several occasions, threatening employees with loss of wages and benefits, creating the impression of surveillance, and threatening stricter enforcement of work rules because of union activities. The Board also agreed with the judge's findings that the respondent violated Section 8(a)(1), (3), and (5) by changing work assignments and work conditions of unit employees, refusing to grant a regular yearly wage increase and a Christmas bonus; and violated Section 8(a)(1) and (5) by denying employees access to the respondent's office and the phones. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by General Drivers, Warehouse and Helpers Local 142; complaint alleged violations of Section 8(a)(1), (3) and (5). Hearing at Chicago, Ill., July 15-17, 1996. Decision issued by Adm. Law Judge Wallace H. Nations, Nov. 21, 1996.

* * *

Sheet Metal Workers Local 28 (Astoria Mechanical Corp.) (29-CC-1168; 323 NLRB No. 21) Huntington, N.Y. Feb. 27, 1997. The Board agreed with the administrative law judge's recommendation that a broad remedial order is warranted because of the respondent's proclivity to violate Section 8(b)(4) of the Act. In so doing, the Board noted that the respondent's unlawful conduct here is the third instance within 21-months in which it engaged in threats or picketing in violation of Section 8(b)(4)(ii)(B). Contrary to the judge, however, the Board noted that in finding a broad remedial order appropriate it does not rely on formal stipulation settlements which contain nonadmission clauses or an informal settlement stipulation in which the respondent was a party because such agreements have no probative value in establishing that violations have occurred and thus may not be relied on to establish proclivity to violate the Act. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by Astoria Mechanical Corp.; complaint alleged violation of Section 8(b)(4)(ii)(B). Hearing at Brooklyn, N.Y., May 14, 1996. Decision issued by Adm. Law Judge James F. Morton, July 9, 1996.

* * *

Local Joint Executive Board of Las Vegas, Culinary Workers Local 226 and Bartenders Local 165 (Casino Royale, Inc.) (28-CB-4159, et al.; 323 NLRB No. 16) Las Vegas, Nev. Feb. 27, 1997. The Board upheld the administrative law judge's findings that the respondent violated Section 8(b)(1)(A) of the Act in the course of its picketing by stating that it knew where employees lived and that it was going to get them, videotaping or creating the appearance of videotaping employees, and physically assaulting a potential customer. The judge dismissed other allegations of additional threats or assaults -- a finding with which the Board agreed. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by Casino Royale, Inc.; complaint alleged violations of Section 8(b)(1)(A). Hearing at Las Vegas, March 14-16, 1995. Decision issued by Adm. Law Judge Burton Litvak, Feb. 23, 1996.

* * *

Bay Electric, Inc. (1-CA-31620, 32903; 323 NLRB No. 20) Boston, Mass. Feb. 27, 1997. Affirming the administrative law judge, the Board found that the respondent did not violate Section 8(a)(3) or (1) of the Act when it refused to consider three applicants with union affiliations for employment because the General Counsel failed to show that the respondent was hiring or that the respondent's hiring policy was discriminatorily applied or promulgated to discourage union activity. [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

Charges filed by Electrical Workers IBEW Local 567; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Boston, March 28, 1996. Decision issued by Adm. Law Judge James L. Rose, July 3, 1996.

* * *

Magic Finishing Company (7-CA-37777, et al.; 323 NLRB No. 28) Grand Rapids, Mich. Feb. 27, 1997. The Board upheld the administrative law judge's findings that Marie Van Dyke, Yvonne Davidson, and Angela de Bres were engaged in protected, concerted activity when they left work early without permission and that the employer discharged them for engaging in that activity in violation of Section 8(a)(1) of the Act. The Board held: "Operations Manager Borek, who discharged the employees for walking off the job without permission, admitted she knew that the employees planned to go home because the previous shift had been allowed to go home early due to the heat; that the employees had complained to their foreman about having to work in unbearable heat; and that they had told the foreman that they were going home." [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

Charges filed by Marie Van Dyke, Yvonne Davidson, and Angela de Bres, individuals; complaint alleged violation of Section 8(a)(1). Hearing at Grand Rapids on April 10, 1996. Adm. Law Judge Lowell Goerlich issued his decision June 12, 1996.

* * *

Fredericksburg Glass and Mirror, Inc. (5-CA-24957; 323 NLRB No. 17) Fredericksburg, Va. Feb. 27, 1997. The Board agreed with the administrative law judge that the employer violated Section 8(a)(1) of the Act by maintaining a rule prohibiting employee discussion about their earnings; and violated Section 8(a)(3) and (1) of the Act by discharging Louis Wayne May and Ronald Stepp because of their protected union and concerted activity in discussing with each other and fellow employees whether they were being paid the wage rates required by law, discussing the matter with their union representative, and assisting a government agent's investigation of the wage issue. [TEXT] [PDF]

The Board modified the judge's recommended Order to require that the employer rescind its unlawful rule prohibiting employees from discussing their earnings with each other. The Board declined to affirm the judge's express direction that backpay be computed by reference to rates set by Federal authorities under the Davis-Bacon Act. Instead, it left computation of the appropriate gross backpay rates to Board agents in the compliance stage. The Board denied the General Counsel's request that litigation fees be assessed against the employer and sanctions imposed on its counsel.

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by Painters Local 963; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Washington, D.C., Oct. 30 and Nov. 1, 1995. Adm. Law Judge Nancy M. Sherman issued her decision Oct. 21, 1996.

* * *

Washington National Hilton Hotel (5-RC-14405; 323 NLRB No. 24) Arlington, Va. Feb. 27, 1997. The Board affirmed the Regional Director's recommendation and overruled the employer's Objection 5 alleging that Hotel Employees and Restaurant Employees Local 25 interfered with an election held December 6, 1996 by offering to put union supporters in contact with a Washington Post reporter who was doing a story on union organizing, so that they might get their names and, perhaps, pictures in the paper. The Board ruled that the employer failed to show that the union's alleged conduct constituted "a tangible, substantial, and direct benefit to employees that had a tendency to interfere with their free choice in the election." [TEXT] [PDF]

In the absence of exceptions, the Board adopted pro forma the Regional Director's approval of the employer's withdrawal of its Objections 3 and 6 and his recommendations concerning the employer's Objections l, 2, 4, 7, and 8. The Board remanded the proceeding to the Regional Director to hold a hearing on the employer's Objections 1, 2, 4, and 7.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Sheet Metal Workers Local 28 (Borella Bros., Inc.) (29-CC-1175; 323 NLRB No. 22) Mineola, N.Y. Feb. 27, 1997. The Board agreed with the administrative law judge that the respondent violated Section 8(b)(4)(ii)(B) of the Act by threatening Herman/Stewart Construction and Best Restaurant Equipment & Design Co. with an object of forcing them to cease doing business with each other and Borella Brothers, Incorporated; and that a broad remedial order is warranted because of the respondent's proclivity to violate Section 8(b)(4). In entering a broad order, the Board pointed out that this is the third instance between April 1994 and February 1996 that the respondent engaged in threats or picketing in violation of Section 8(b)(4)(ii)(B). The Board did not rely on either the respondent's prior conduct covered by judgments of the U.S. Court of Appeals for the Second Circuit dated March 8, 1984 and October 23, 1986 which enforced Board Orders against the respondent pursuant to formal settlement stipulations; or an informal settlement agreement to which the respondent was a party in Case 2-CC-2195, approved by the Acting Regional Director on February 3, 1994. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by Borella Brothers, Incorporated; complaint alleged violation of Section 8(b)(4)(ii)(B). Hearing at Brooklyn on May 14, 1996. Adm. Law Judge James F. Morton issued his decision July 9, 1996.

* * *

Hospital del Maestro and Union de Trabajadores de la Industria Gastronomica Local 610 (24-CA-7056 and 7091, 24-CB-1715, 24-RC-7660 and 7661; 323 NLRB No. 6) Puerto Rico, P.R. Feb. 27, 1997. The Board held, in agreement with the administrative law judge, that the employer interfered with an election held September 30, 1994 in Case 24-RC-7660 and violated the Act by suspending and discharging Maria Teresa Jurado Acevedo and restricting Jose Esquilin-Pinto's movements around the hospital in order to interfere with his activities on behalf the charging party union (Union Independiente de Trabajadores del Hospital del Maestro); and by threatening Jurado with discharge because of her union activities and excluding Esquilin from its cafeteria. Further, the Board affirmed the judge's finding that the employer refused to reinstate Esquilin in violation of Section 8(a)(4) and (1). [TEXT] [PDF]

Contrary to the judge, the Board found that the respondent union violated Section 8(b)(1)(A) by insisting that Rivera sign a checkoff/membership application card and failing to inform him concerning his precise financial obligations to the union; and violated Section 8(b)(2) by requesting that the employer discharge Rivera for his failure to comply with his dues obligation. The Board, unlike the judge, found that the employer violated Section 8(a)(3) and (1) by complying with Local 610's request that Rivera be discharged when it knew of the respondent union's failure to advise him properly concerning his obligations.

In Case 24-RC-7660, the Board overruled the challenge to the ballot of Jose Manuel Martinez Moreno, and directed that the Regional Director open and count his ballot and issue a revised tally of ballots. The original tally of ballots shows nine votes for each union, with one determinative challenged ballot. If the revised tally shows that the charging party received a majority of the valid ballots cast, a certification of representative will be issued. In the event that the charging party does not receive a majority of the valid ballots cast, the election will be set aside and a second election conducted because of the employer's objectionable conduct.

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by Union Independiente de Trabajadores del Hospital del Maestro; complaint alleged violation of Section 8(a)(1), (3), and (4) and Section 8(b)(1)(A) and (2). Hearing held April 4-7 and 10-13, 1995. Adm. Law Judge Lowell M. Goerlich issued his decision July 14, 1995.

* * *

Quality Control Electric, Inc. (11-CA-15835, et al.; 323 NLRB No. 29) Savannah, Ga. Feb. 27, 1997. The Board agreed with the administrative law judge that the employer violated Section 8(a)(1) of the Act by telling job applicants that the employer would not hire them because of their union affiliation; and violated Section 8(a)(3) by denying employment to four job applicants because they were members of Electrical Workers IBEW Local 1579. The Board modified the judge's recommended Order to include a remedial paragraph ordering the employer to cease and desist from refusing to hire job applicants because of their union membership. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Electrical Workers IBEW Local 1579; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Atlanta, Aug. 28-29, 1995. Adm. Law Judge Robert C. Batson issued his decision Feb. 7, 1996.

* * *

Aramark Corporation (12-RC-8041; 323 NLRB No. 26) Jacksonville, Fla. Feb. 28, 1997. Citing Management Training Corp., 317 NLRB 1355 (1995), which established the test for assertion of the Board's jurisdiction over an employer with close ties to an exempt government entity, Chairman Gould and Member Fox denied the employer's request for review of the Regional Director's decision and direction of election, finding that Aramark Corporation is a private employer within the meaning of the Act and within the Board's jurisdiction. The employer is engaged in the distribution and sale of food and related services at various institutions, including managing the food service operation of the Duval County, Florida School Board. The petitioning union is Florida Public Employees Council 79, AFSCME. [TEXT] [PDF]

Member Higgins, dissenting in part, would grant the employer's request for review to consider whether the Board should adhere to Management Training Corp.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Albertson's, Inc. (18-CA-13715, 13782; 323 NLRB No. 1) Rapid City, S.D. Feb. 20, 1997. In agreement with the administrative law judge, the Board found that the respondent violated Section 8(a)(1) of the Act by disparately enforcing its no-solicitation policy and thereby assisting employees in filing a decertification petition by permitting antiunion solicitations by employees in violation of company rules while prohibiting prounion solicitations, and by engaging in surveillance of employees' union activities by confiscating prounion materials from employees and copying them. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by United Food and Commercial Workers Union, Local 394; complaint alleged violation of Section 8(a)(1). Hearing at Rapid City, S.D., July 23 and 24, 1996. Decision issued by Adm. Law Judge John H. West, Sept. 30, 1996.

* * *

Sansla, Inc. (3-CA-19959; 323 NLRB No. 9) Buffalo, N.Y. Feb. 27, 1997. Upholding the administrative law judge, the Board agreed that the respondent did not violate Section 8(a)(1) and (5) of the Act when it did not abide by the terms of its contract with the union. The judge found that the respondent was not bound to apply the terms of the contract because the contract was meant to cover only the Orange County Residential Health Care Facility jobsite and no other jobs that it subsequently obtained in the area. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Laborers' Local 17; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Albany and New York, N.Y., Sept. 30 and Oct. 8, 1996. Decision issued by Adm. Law Judge Joel P. Biblowitz, Nov. 22, 1996.

* * *

Cardiovascular Consultants of Nevada, MI (28-CA-13567, 13601; 323 NLRB No. 7) Las Vegas, Nev. Feb. 25, 1997. Affirming the administrative law judge's decision, the Board found that the General Counsel failed to establish a violation and dismissed the complaint alleging that the employer violated Section 8(a)(1) of the Act by suspending and then discharging Dolores Aragon and Michele Dubry for engaging in protected concerted activities. In defense, the employer contended that it disciplined the two employees for falsifying Aragon's timecard. Although the Board found admissible an unemployment compensation referee's decision finding that Aragon was not discharged for misconduct within the meaning of Nevada State law, it agreed with the judge's alternative rationale that the decision did not require a different result. The judge, who did not admit the decision into evidence during the hearing, found that even if he had done so, it was not persuasive and he would not have granted it any weight. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by Dolores Aragon and Michele Dubry, individuals; complaint alleged violation of Section 8(a)(1). Hearing at Las Vegas, Sept. 18-20, 1996. Adm. Law Judge Jay R. Pollack issued his decision Nov. 8, 1996.

* * *

Antioch Building Materials Co. (32-CA-13804; 323 NLRB No. 11) Pittsburgh, Calif. Feb. 25, 1997. Members Browning and Fox modified the Board's decision and order (316 NLRB 647 (1995)) to specifically include a requirement that the employer is obligated to arbitrate all outstanding grievances, including oral grievances. Members Browning and Fox rejected the employer's claim that the parties' collective-bargaining agreement limits arbitration to written grievances for the following reasons. First, the employer's contention raised at the compliance stage was untimely. Second, assuming that the employer's argument is properly before the Board and the contract limits arbitration to written grievances, it would not apply to the employer's arbitration obligations under the parties' separate December 1993 agreement to arbitrate outstanding and unresolved grievances. Third, assuming that the employer's defense was timely, the arbitrator is best suited to resolve the question whether the disputes--over clearly arbitrable subject matters--are still subject to arbitration even when initiated in the form of oral, rather then written, grievances. [TEXT] [PDF]

Chairman Gould, concurring, found that that the matter is appropriately submitted to the arbitrator for resolution rather than to the National Labor Relations Board.

In its prior decision, the Board found that the employer unlawfully repudiated its obligation under the collective-bargaining agreement to arbitrate grievances, and unlawfully repudiated its December 1993 verbal agreement with Operating Engineers Local 3 to arbitrate outstanding and unresolved grievances initiated by the union against the respondent during the term of the collective-bargaining agreement. The Board ordered the employer to comply with a renewed request by the union to arbitrate the grievances. Thereafter, the General Counsel administratively advised the Board that, during compliance discussions, the employer refused to arbitrate oral grievances. On July 2, 1996, the Board issued a notice to show cause why it should not clarify the Order specifically to include or exclude a requirement to arbitrate oral grievances.

(Chairman Gould and Members Browning and Fox participated.)

* * *

Monroe Manufacturing, Inc.; Contract Manufacturing, Inc.; and Embroideries, Inc., Single Employer (15-CA-11539-2, et al.; 323 NLRB No. 2) Monroe, La. Feb. 25, 1997. The Board, agreeing with the administrative law judge that the employer's misconduct "cover[ed] almost every type of unfair labor practice that an employer may commit," entered a broad cease-and-desist order to remedy the egregious and widespread misconduct. The violations found included failing to notify and bargain with the Amalgamated Clothing and Textile Workers Union over a series of temporary layoffs which occurred between June 4, 1992 and July 15, 1993, interrogating employees regarding their union activities, asking its employees to ascertain and disclose to the employer the union activities of other employees, threatening employees with discharge and loss of employment benefits if they continued to engage in union activities, and discharging Hattie Broadway because she threatened to "go to the Labor Board." [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Amalgamated Clothing and Textile Workers Union, Southwest Regional Joint Board; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing held on 28 days between June 14, 1993 and May 19, 1994. Adm. Law Judge George F. McInerny issued his decision Feb. 15, 1996.

* * *

Delta Mechanical, Inc. (16-CA-17235; 323 NLRB No. 5) Houston, Tex. Feb. 26, 1997. The administrative law judge found, with Board approval, that the employer violated Section 8(a)(1) of the Act by threatening employees with discharge if they supported Sheet Metal Workers Local 54. Allegations that the employer violated Section 8(a)(3) and (1) by refusing to consider seven job applicants for employment because of their union affiliation were dismissed. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Sheet Metal Workers Local 54; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Houston on March 14, 1996. Adm. Law Judge Richard J. Linton issued his decision May 30, 1996.

* * *

Firemen and Oilers Local 320 (Philip Morris, U.S.A.) (9-CB-9197; 323 NLRB No. 10) Louisville, Ky. Feb. 26, 1997. On a stipulated record, the Board found that the respondent did not violate Section 8(b)(1)(A) of the Act by negotiating changes in the seniority provisions of a collective-bargaining agreement. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Archie D. Sadler, Jr., an individual; complaint alleged violation of Section 8(b)(1)(A).

* * *

United Enviro Systems, Inc. (22-CA-16290; 323 NLRB No. 8) Flanders, N.J. Feb. 26, 1997. In this second supplemental decision and order, the Board, with some modifications, agreed with the administrative law judge that discriminatee Gregory Von Ohlen's profit-sharing payment and discriminatee Bradley Garie's pension plan distribution were properly deducted from net backpay. [TEXT] [PDF]

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

Supplemental hearing at Newark, N.J., Feb. 1, 1995. Supplemental Decision issued by Adm. Law Judge Joel P. Biblowitz, April 17, 1995.

* * *

Bozeman Deaconess Hospital (19-CA-23519, 23660; 322 NLRB No. 196) Bozeman, Mont. Feb. 18, 1997. The Board agreed with the administrative law judge that the respondent's RNs are not statutory supervisors, and that the respondent therefore violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from their union and making unilateral changes in the terms and conditions of their employment. Citing Providence Hospital, 320 NLRB 717 (1996), the Board concurred with the judge that the RNs' assignment and direction of other employees is routine and does not require the exercise of independent judgment under Section 2(11). The majority also relied on the judge's alternative analysis that the respondent's conduct would be unlawful even if the RNs were found to be statutory supervisors, but only as it pertains to violations prior to the expiration of the collective-bargaining agreement. Member Higgins agreed that the respondent failed to prove that the RNs were supervisors but found it unnecessary to pass on whether there would be a violation if the RNs were supervisors. [TEXT] [PDF]

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

Charges filed by Montana Nurses Association; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Bozeman, Feb. 28, March 1-2, 1995. Decision issued by Adm. Law Judge Michael D. Stevenson, Aug. 31, 1995.

* * *

Theatrical Stage Employees Local 219 (Hughes-Avicom International, Inc.) (18-CB-3084; 322 NLRB No. 195) Minneapolis, Minn. Feb. 14, 1997. The Board found, contrary to the administrative law judge, that the respondent violated Section 8(b)(1)(A) of the Act in conjunction with a June 11, 1991 letter seeking to obligate Minneapolis-based unit employees to pay fees and dues under a union-security clause, by failing to notify them of their rights under Communications Workers v. Beck, 487 U.S. 735 (1988); and violated Section 8(b)(1)(A) and (2) by entering into and maintaining a contractual provision requiring employees to become members of the union as a condition for participation in pension benefit funds. [TEXT] [PDF]

The union represents a multilocation unit of Hughes-Avicom technicians. There were no exceptions to the judge's finding that (1) Hughes-Avicom and the respondent acted lawfully when they agreed that the employees working at the employer's Minneapolis, Minnesota base were an accretion to the existing bargaining unit; (2) the union was legally entitled to seek the employees' compliance with a union-security clause in the collective-bargaining agreement; and (3) the union violated Section 8(b)(1)(A) by failing to give the Minneapolis employees an explanation of Beck rights and by misrepresenting that no such rights existed in response to an employee question at a June 26, 1991 meeting.

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by Robert A. St. George, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Minneapolis, Dec. 18-19, 1991. Adm. Law Judge William L. Schmidt issued his decision April 23, 1993.

* * *

In re: Stuart Bochner (AD-7; 322 NLRB No. 194) New York, N.Y. Feb. 18, 1997. Affirming the administrative law judge's finding, the Board suspended Stuart Bochner, an attorney representing respondent employers in several Board proceedings, from practice before the Board for a period of 2 1/2 years for violating the Board's Rules and Regulations governing attorney misconduct. The Board further decided that Bochner's repeated and unjustified refusals to comply with properly served subpoenas constituted additional grounds for the discipline imposed. Contrary to the judge, the Board found that the availability of alternative remedies, such as the assessment of costs and fees or court enforcement of the subpoenas did not preclude the General Counsel from seeking disciplinary sanctions against Bochner for his unjustified refusals to comply with the subpoenas. [TEXT] [PDF]

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

Adm. Law Judge Joel P. Biblowitz issued his decision Feb. 20, 1996.

* * *

Cowin and Company, Inc. (10-CA-29074; 322 NLRB No. 193) Birmingham, Ala. Feb. 18, 1997. The Board affirmed the administrative law judge's recommendation to dismiss the complaint, agreeing with the judge that the employer did not violate Section 8(a)(1) of the Act when it discharged Johnny Snow for initiating an unprotected work stoppage, i.e., in violation of the implied no-strike clause in the employer's collective-bargaining agreement with the United Mine Workers. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by Johnny E. Snow, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Birmingham on Aug. 13, 1996. Adm. Law Judge William N. Cates issued his decision Aug. 29, 1996.

* * *

RTP Co. (18-CA-14021; 323 NLRB No. 4) Winona, Minn. Feb. 20, 1997. The Board adopted the findings of the administrative law judge who, applying the Supreme Court's analysis in Seafirst, 475 U.S. 192 (1986), held that the respondent violated Section 8(a)(1) and (5) of the Act by refusing to recognize and bargain with UAW Local 2340 as the representative of its employees. The judge's bargaining order was upheld by the Board. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by UAW; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Minneapolis, June 20-21, 1996. Decision issued by Adm. Law Judge William L. Schmidt, Oct. 1, 1996.

* * *

Liberty Ashes & Rubbish Co. (29-CA-19442; 323 NLRB No. 3) Jamaica, N.Y. Feb. 20, 1997. The administrative law judge found, and the Board concurred, that the respondent violated Section 8(a)(1) and (3) of the Act by discharging John Parente because he engaged in protected concerted activity and because of his activities in support of Teamsters Local 813. The judge concluded that respondent discharged Parente "in the belief that he acted with other employees in protesting working conditions, which is sufficient to render Respondent's conduct unlawful, regardless of whether Parente engaged in or intended to engage in concerted activities." [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by John Parente, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn, N.Y., March 13, 1996. Decision issued by Adm. Law Judge Steven Fish, Sept. 16, 1996.

* * *

Florida Casino Cruises, Inc. (12-RC-8030; 322 NLRB No. 155) Dania, Fla. Jan. 10, 1997. The Board denied the employer's request for review of the Regional Director's decision and direction of election in which he found appropriate the petitioned-for unit of approximately 18 marine crew employees, including first mates, second mates, able-bodied seamen, deck engine utility/ordinary seamen, chief engineers, assistant engineers, and ordinary seamen. The employer, which is engaged in the operation of the casino cruise ship Vegas Express, contended that a "wall to wall" unit of approximately 136 employees is appropriate. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

* * *

The Goodyear Tire & Rubber Company and Rubber Workers Local 12 (10-CA-26301 and 10-CB-6043; 322 NLRB No. 183) Gadsden, Ala. Jan. 31, 1997. Members Browning and Fox found, contrary to the administrative law judge, that the respondents did not violate the Act by refusing to allow John Tally to bump department representative (i.e., union steward) David Bowers from his position because the respondents provided the evidence necessary to show that the application of the relevant superseniority clause to protect Bowers from being bumped was justified. [TEXT] [PDF]

Chairman Gould, concurring, wrote: "I do so, however, because the stewards are elected and I believe the rationale of Dairylea Cooperative, Inc., [219 NLRB 656, 658 (1975), enfd. 531 F.2d 1162 (2d Cir. 1976)], a case which dealt with superseniority for union-appointed stewards, should not be extended to the instant circumstances, which involve the contractual granting of superseniority to department representatives (i.e., stewards) who were elected by dues-paying members of the Union."

Members Browning and Fox disagreed with the Chairman's rationale, stating:

According to our colleague, the inference that superseniority for appointed stewards encourages union membership should not apply when stewards are elected. The inference about appointed stewards accepts that an individual must display attributes attractive to union officials under an appointment process. But an individual must display attributes attractive to fellow employees under an elective process. We fail to understand how we can say a system that may cause an individual to ingratiate himself to union officials (who are themselves elected by fellow employees) is encouragement of union activism, while a system that may cause an individual to campaign for union office with fellow employees is not encouragement of union activism.

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by James Tally, an individual; complaint alleged violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2). Hearing at Gadsden on April 22, 1993. Adm. Law Judge Richard J. Linton issued his decision July 14, 1993.

* * *

Kmart Corporation (33-CA-10802; 322 NLRB No. 188) Manteno, Ill. Feb. 6, 1997. On remand from the U.S. Court of Appeals for the Seventh Circuit, the Board affirmed its original decision and order (315 NLRB No. 17 (1994)) finding that the employer violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Teamsters Local 705 as the exclusive collective-bargaining representative of its employees. Originally, the Board found, in agreement with the hearing officer, that the union's action in photographing and videotaping leafletting on the days before, and the morning of, the election reasonably tended to interfere with the employees' free choice in the election. The court expressed concern that the hearing officer's report did not adequately discuss testimony from four employees who claimed to have been photographed or videotaped as they were refusing leaflets distributed by union adherents. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Latin Business Association (21-CA-31392 and 21-RC-19649; 322 NLRB No. 189) Los Angeles, Calif. Feb. 7, 1997. The Board denied the General Counsel's petition for a declaratory order to determine whether the Board would assert jurisdiction over the employer because of an inadequate record and because certain facts are in dispute. The employer is a California nonprofit corporation whose mission is business development, advocacy, and education for Latino-owned businesses. [TEXT] [PDF]

The General Counsel submitted that the Board should adopt a $250,000 jurisdictional standard for business membership organizations such as the Latin Business Association because statistical data compiled by the Bureau of Census indicates that a $250,000 standard would cover 44 percent of the employers in that census category and 84 percent of the employees employed by such employers. Applying that standard, the General Counsel submits that the Board should assert jurisdiction over the employer. The employer disputed the revenue and expense figures provided by the General Counsel, and contended that its revenues were less than $500,000 and that its combined direct and indirect outflow and inflow was less than $50,000. In addition, the employer requests that the Board establish a jurisdictional standard for local nonprofit business membership associations which requires gross annual revenues in excess of $500,000 and annual direct and indirect inflow in excess of $50,000.

(Chairman Gould and Members Browning and Higgins participated.)

* * *

Adderley Industries, Inc. (4-CA-23435; 322 NLRB No. 184) Blackwood, N.J. Feb. 7, 1997. The Board upheld the administrative law judge's findings that the employer violated Section 8(a)(1) of the Act by threatening employees with plant closure or cessation of its cable installation operations if or because they choose Electrical Workers IBEW Local 1448 as their collective-bargaining representative, threatening employees with discharge or other reprisals by telling them they should seek work elsewhere if they wish to improve their wages or other working conditions through union or other concerted activity, instructing employees to tell the union to stop its organizing efforts, and creating the impression of surveillance of employees' union activities. In adopting the judge's dismissal of the 8(a)(5) contract-repudiation allegation, the Board did not rely on the judge's finding, in part III,A,2 of his decision, that the union sought to organize the employer's installation employees to persuade them not to cross anticipated picket lines relating to negotiations between the union and a company with whom the employer had a business relationship. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 1448; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia, June 20, 27-28, 1996. Adm. Law Judge Marvin Roth issued his decision Oct. 2, 1996.

* * *

Hudson Moving and Storage Company, Inc. (2-CA-28169; 322 NLRB No. 187) New York, N.Y. Feb. 11, 1997. The Board affirmed the administrative law judge's finding that shortly after the union's filing of an election petition on January 18, 1995, the employer ceased assigning work to 7 of its drivers and helpers who had signed union authorization cards, thereby effectively terminating them because of their activities for Teamsters Local 814 in violation of Section 8(a)(3) and (1) of the Act. The Board concluded that the employer's documentary evidence failed to substantiate its claims that a downturn in business had resulted in fewer work opportunities for the individuals and also that some of them declined repeated offers of work. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 814; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, Feb. 20-22 and 28, 1996. Adm. Law Judge Howard Edelman issued his decision Sept. 9, 1996.

* * *

I & F Corp. and its Alter Ego, Priority III Contracting, Inc. (9-CA-33006-1, -2; 322 NLRB No. 191) Cincinnati, Ohio Feb. 11, 1997. The Board agreed with the administrative law judge that the employer violated Section 8(a)(5) of the Act by repudiating the 1993-1996 collective-bargaining agreement between I & F and Heat and Frost Insulators and Asbestos Workers Local 8, including failing to make contractually required trust fund payments. The Board, finding merit in the union's exception, concluded that the remedy for the employer's failure to honor the collective-bargaining agreement should apply to all unit employees at Priority III Contracting, Inc., including both former I & F employees and those who had not previously worked for I & F. The Board amended the judge's recommended order accordingly. [TEXT] [PDF]

Other employer misconduct found included dealing directly with employees, soliciting employees to abandon their union employment and accept employment without union representation, and failing to provide to the union relevant and necessary information.

(Members Browning, Fox, and Higgins participated.)

Charges filed by Heat and Frost Insulators and Asbestos Workers Local 8; complaint alleged violation of Section 8(a)(1) and (5). Hearing held March 4-5, 1996. Adm. Law Judge Peter E. Donnelly issued his decision July 8, 1996.

* * *

Bay Refrigeration Corp. (29-CA-19267, et al.; 322 NLRB No. 190) Brooklyn, N.Y. Feb. 12, 1997. The Board affirmed the administrative law judge's findings that the employer violated Section 8(a)(5), (3), and (1) of the Act by, among other things, refusing to recognize and bargain with Operating Engineers Local 295; conditioning its agreement to meet and bargain with the union on the union's agreement not to negotiate on behalf of all the employees in the unit or the union's agreement to exclude certain employees from the unit; discharging an employee because he joined, supported, and assisted the union; threatening to discharge employees who supported the union; and directing employees to identify for it those employees who joined the union. The Board found merit in the General Counsel's limited exception and amended the judge's recommended Order and notice to conform to his factual findings and conclusions of law. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Operating Engineers Local 295; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Brooklyn on March 25, 1996. Adm. Law Judge Robert T. Snyder issued his decision Nov. 1, 1996.

* * *

The 3E Company, Inc. (1-CA-32929; 322 NLRB No. 192) Old Town, Maine Feb. 12, 1997. The Board, finding that the 37 job applicants involved here were employees under the Act based on the Supreme Court's decision in NLRB v. Town & Country Electric, 116 S.Ct. 450 (1995), upheld the administrative law judge's conclusion that the employer violated Section 8(a)(3) and (1) of the Act by refusing to consider the 37 applicants for employment because of their union affiliation. The Board modified the judge's remedy in accordance with its decision in B E & K Construction Co., 321 NLRB No. 83 (1996), as requested by the General Counsel. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Electrical Workers IBEW Local 567; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Bangor on April 25, 1996. Adm. Law Judge Michael O. Miller issued his decision July 29, 1996.

* * *

PECO Energy Company (4-RC-18572, et al.; 322 NLRB No. 197) Philadelphia, Pa. Feb. 14, 1997. In Case 4-RC-18589, the Board found appropriate for collective-bargaining all full-time and regular part-time production and maintenance employees, including plant clerical employees employed by the employer at its Nuclear Generation Group; excluding all employees covered by the Professional, Supervisory, and Managerial (PSM) pay plan, office clerical employees, confidential employees, guards, and supervisors as defined in the Act. The Board directed that an election be held among the unit employees as early as possible but not later than 30 days from the date of its decision to determine whether they desire to be represented for collective-bargaining by the Utility Workers Union. [TEXT] [PDF]

In Cases 4-RC-18572 and 4-RC-18573, the Board found appropriate for collective-bargaining all full-time and regular part-time craft and technical employees, including plant clerical employees, employed by the employer in its Power Generation Group; excluding all employees covered by the Professional, Supervisory, and Managerial (PSM) pay plan, office clerical employees, confidential employees, guards, and supervisors as defined in the Act. The Board remanded Cases 4-RC-18572 and 4-RC-18573 to the Regional Director to determine whether there is an adequate showing of interest in the unit found appropriate, to resolve any unit placement issues, and to take further appropriate action.

PECO (known until January 1, 1994, as the Philadelphia Electric Company) is an investor-owned public utility and is engaged in the generation, transmission, distribution, and sale of electricity, as well as the transmission, distribution, and sale of gas. PECO has about 6500 employees, of whom about 4000 are covered by the craft, technical, administrative, and clerical pay plan and about 2500 are PSM employees. PECO operates and maintains 13 electric generating stations, 1 gas plant, about 40 service buildings, 10 support buildings, 150 major substations and high voltage transmission lines, and 300 smaller substations and lower voltage lines. PECO has five strategic business units, including the nuclear generation group which operates PECO's two nuclear generating stations; and the power generation group which operates PECO's fossil, hydro, pumped storage, and combustion turbine general units.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Beverly Manor-San Francisco (20-CA-27042; 322 NLRB No. 178) San Francisco, Calif. Jan. 31, 1997. Upholding the administrative law judge's findings, the Board agreed that the respondent violated Section 8(a)(1) and (5) of the Act by making certain changes to the benefits of unit B, consisting of licensed vocational nurses, without bargaining with the union and by failing to provide the union with information necessary and relevant to the performance of its duties. [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

Charge filed by Health Care Workers Local 250; complaint alleged violations of Section 8(a)(1) and (5). Hearing at San Francisco, July 11, 1996. Decision issued by Adm. Law Judge Mary Miller Cracraft, Sept. 20, 1996.

* * *

Apollo Construction Co. (22-CA-20405; 322 NLRB No. 182) Paterson, N.J. Jan. 31, 1997. The administrative law judge concluded, and the Board agreed, that the respondent violated Section 8(a)(1) of the Act by, inter alia, segregating employees who were union supporters, following and closely watching employees to discourage union assistance, and threatening to close its operations to discourage union support; and violated Section 8(a)(3) by discharging seven employees, transferring one employee, and issuing verbal and written warnings to employees to discourage union support. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Plumbers and Pipefitters Local 9; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Newark, N.J., on 11 days from Aug. 28, 1995 - March 12, 1996. Decision issued by Adm. Law Judge James F. Morton, June 21, 1996.

* * *

Tony Silva Painting Co. (32-CA-15102; 322 NLRB No. 179) San Jose, Calif. Jan. 31, 1997. The Board found, consistent with the administrative law judge, that the respondent violated Section 8(a)(3) of the Act by terminating employee Francis Gonzalez because of union or concerted activities and violated Section 8(a)(1) by interrogating an employee about reporting on union activities including strike plans and by threatening an employee with job loss. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charges filed by Painters and Tapers Local 272; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Oakland, Calif., May 23, 1996. Decision issued by Adm. Law Judge Michael D. Stevenson, June 27, 1996.

* * *

Calex Corp. (8-CA-27494; 322 NLRB No. 177) Campbell, Ohio Jan. 31, 1997. The Board agreed with the administrative law judge's conclusion that, based on an examination of the respondent's "overall conduct" in bargaining, the respondent violated Section 8(a)(5) of the Act by failing and refusing to meet at reasonable times with the Steelworkers for the purpose of collective bargaining. Further, although the Board agreed with the respondent that the union caused the initial delay in bargaining and that the judge erred in finding that the union never misled the employees into believing that it was the respondent that caused the initial delay, it found that the "mistake does not affect the judge's finding that the strike was an unfair labor practice strike from its inception." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cleveland, Feb. 12-13, 1996. Adm. Law Judge Wallace H. Nations issued his decision April 23, 1996.

* * *

Board of Education of Calvert County, Maryland (AO-338; 322 NLRB No. 144) Baltimore, Md. Jan. 13, 1997. The Board denied the petition for an advisory opinion because it was unable to determine on the present record whether it would assert jurisdiction over the independent schoolbus contractors (Contractors) who contract with the Board of Education of Calvert County, Maryland (County Board) to provide student bus transportation. The Board, in rejecting arguments raised by the Calvert Association of Educational Support Staff, Inc., noted that it no longer employs a joint-employer analysis to determine jurisdiction and thus, whether the County Board and any of the Contractors are joint employers is irrelevant. Further, although the union asserted that the contractors are "conduits" of orders from the County Board, the Board noted undisputed facts that the contractors hire and pay the busdrivers and engage in a variety of other activities that indicate an employer-employee relationship. [TEXT] [PDF]

Turning to whether the Contractors meet the applicable commerce standard, the County Board asserted that all 33 bus Contractors belong to the Calvert County School Bus Contractors Association and, during any representative period, purchase in the aggregate more than $50,000 worth of goods that originated outside the State of Maryland. The Board found no evidence that the Calvert County School Bus Contractors Association is a multiemployer group whose members participate in, or are bound by, multiemployer bargaining negotiations. The Board also noted that the individual Contractors who meet the $50,000 direct inflow standard and over whom the NLRB would ordinarily assert jurisdiction are not identified.

(Chairman Gould and Members Browning and Fox participated.)

* * *

St. Mary's Medical Center (18-UC-308; 322 NLRB No. 175) Duluth, Minn. Jan. 28, 1997. The Board affirmed the Regional Director's clarification of the certified and contractual service and maintenance unit to include the newly created position of working chef. The employer sought to exclude the working chef position, alleging that it falls within an exclusion in the contractual recognition clause for "positions requiring 600 hours or more of formal training, education, or apprenticeship." The Regional Director deferred to an arbitration's interpretation that the "600 hours" provision did not apply to the employer's food service workers. Applying the community-of-interest test, the Regional Director independently determined that the working chef should be accreted to the existing unit. [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

* * *

ADIA Personnel Services, Inc. (14-RC-11516; 322 NLRB No. 180) Freeburg, Ill. Jan. 31, 1997. The Board granted the union's request for review of the Regional Director's supplemental decision solely with respect to the union's Objection 8, sustained the objection, set aside the election, and directed that a second election be held. Objection 8 alleges that the employer engaged in objectionable conduct by threatening to revoke annual raises and bonuses if employees voted to be represented by Sheet Metal Workers Local 459. Employer president John Siemens made the statements in a May 23, 1995 speech to employees. [TEXT] [PDF]

The Board wrote:

By the . . . statements, the Employer . . . outlined in detail the previously granted, regular merit wage increases and annual cash bonuses and linked their being 'frozen' to employees choosing union representation. Siemens did not make it clear that wages and bonuses were subject to negotiations with the Union or frame them in terms of a prediction concerning the outcome of bargaining. Rather, his statements indicate that he would unilaterally change his past practice of granting the raises and bonuses by freezing them. . . .We view these statements as having more than a minimal impact on employees, as they were made by the president of [the] Employer in a captive audience speech on the day before the election, which ended in an extremely close vote.

(Chairman Gould and Members Browning and Fox participated.)

* * *

Imac Energy, Inc., Rockmovers, Inc., Skilled Operator Corp., Carbon Tech Mining Corp. (10-CA-24730, 24906; 322 NLRB No. 164) Jasper, Ala. Jan. 22, 1997. The Board granted the General Counsel's motion for partial summary judgment with respect to gross backpay allegations of the amended compliance specification, finding that the respondents' answer failed to meet the specificity requirement of Section 102.56(b) of the Board's Rules and Regulations. The Board also granted the General Counsel's motion to strike those portions of the respondents' answer that constituted attempts to relitigate matters decided in the underlying unfair labor practice proceeding. The Board remanded the proceeding to the Regional Director to arrange a hearing concerning the factual issues properly raised by the respondents' answer. [TEXT] [PDF]

The Board had ordered in 1991 that respondent Imac reinstate and make whole eight employees for any loss of earnings as a result of their unlawful discharges. 305 NLRB 728. On April 19, 1993, the U.S. Court of Appeals for the Eleventh Circuit entered a judgment enforcing the Board's order. The specification alleges that the respondents have been at all material times, each an alter ego of each other and Imac, and a successor to Imac, and that all respondents are jointly and severally liable to each of the discriminatees for the backpay amounts set forth in the amended specification.

(Chairman Gould and Members Browning and Higgins participated.)

General Counsel filed motion for summary judgment Aug. 23, 1996.

* * *

Caterpillar, Inc. (33-CA-10414, 10415; 322 NLRB No. 172) Denver, Colo. Jan. 23, 1997. The Board, granting the charging party's motion for clarification, modified the first paragraph of its order in the underlying decision (322 NLRB No. 116) by substituting "Peoria, Illinois" for "Denver, Colorado." [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

McDaniel Ford, Inc. ((29-CA-18811, 18992; 322 NLRB No. 176) Hicksville, N.Y. Jan. 28, 1997. The administrative law judge held, with Board approval, that the respondent violated Section 8(a)(1) of the Act by, among other actions, directing or suggesting that employees choose another shop steward and promising medical benefits to discourage union support; violated Section 8(a)(1) and (3) by discharging one employee and warning another because of their union support; and violated Section 8(a)(1) and (5) by, among other actions, making changes to the incentive pay system, work hours, and employee classifications, and failing to make contributions to the pension fund without bargaining with the union. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by United Auto Workers Local 259; complaint alleged violations of Section 8(a)(1), (3) and (5). Hearing at Brooklyn, March 4, 1996. Decision issued by Adm. Law Judge Steven Fish, Sept. 30, 1996.

* * *

Laidlaw Transit, Inc. (9-RC-16592; 322 NLRB No. 166) Pickerington, Ohio Jan. 22, 1997. The Board adopted the hearing officer's recommendation to overrule the petitioner's challenge to the ballots of Chester Beddow and Douglas Dodd and to direct that their ballots be opened and counted. Instead, of applying the community-of-interest analysis that the hearing officer used, the Board found that the parties agreed that these employees, as mechanics, would be included in the unit as part of the binding stipulated election agreement. The Board, however, did not agree that a new election should be held stating that it would not be appropriate to set aside an election based on an objection filed by the employer which involves entirely the employer's observer's failure to challenge a voter in a timely and proper manner. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Ball Corp. (25-CA-24096; 322 NLRB No. 173) Muncie, Ind. Jan. 28, 1997. The Board agreed with the administrative law judge's findings that the respondent violated Section 8(a)(1) and (5) but modified his recommended order in accordance with the General Counsel's exception that the judge's order to recognize and bargain upon request with "the Union's designated Industrial Relations Committee" is too narrow. Instead, the Board ordered the respondent to bargain, on request, with the union's collective bargaining representative, including the Industrial Relations Committee. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Aluminum and Glass Workers Local 93; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Muncie, July 25, 1996. Decision issued by Adm. Law Judge Marvin Roth, Oct. 17, 1996.

* * *

Torch Operating Co. (31-CA-20895; 322 NLRB No. 170) Lompoc, Calif. Jan. 28, 1997. The Board adopted the administrative law judge's finding that the respondent, Torch Operating, is a successor to Unocal but, unlike the judge, did not rely on Citisteel USA, 312 NLRB 815 (1993), enf. denied 53 F.3d 350 (D.C. Cir. 1995). Instead, the Board relied on Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), and stated that the point for determining whether the respondent had a duty to bargain with the union arose almost immediately after the respondent acquired Unocal's facilities, which was before it made the changes in operations on which it relies in contending that it lacked substantial continuity with its predecessor. The Board agreed with the judge's findings that the respondent failed to prove that it had a good-faith doubt of the union's majority status and thus violated Section 8(a)(1) and (5) by failing and refusing to recognize and bargain with the union since Nov. 2, 1994. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Petroleum and Industrial Workers Union; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles, Aug. 28-30, 1995. Decision issued by Adm. Law Judge Michael D. Stevenson, March 8, 1996.

* * *

Sullivan Industries, Inc. (1-CA-25698, 25869; 322 NLRB No. 168) Claremont, N.H. Jan. 24, 1997. Citing Lee Lumber, 322 NLRB No. 14 (1996), the Board remanded the case to the administrative law judge because it was "unclear" from the record whether the employee disaffection from the Steelworkers occurred during the course of the employer's unlawful refusal to recognize and bargain with the union. In Lee Lumber, the Board held that when an employer has unlawfully refused to recognize and bargain with an incumbent union, any employee disaffection from the union that arises during the course of that refusal results from the earlier unlawful conduct. This presumption can be rebutted only by an employer's showing that the disaffection arose after it resumed its recognition of the union and bargained for a reasonable time without committing other unfair labor practices that would directly affect the bargaining. [TEXT] [PDF]

On March 21, 1991, the Board issued a decision and order finding that the respondent, a successor employer, violated Section 8(a)(5) and (1) by failing to bargain with and withdrawing recognition from the union. 302 NLRB 144. On March 13, 1992, the U.S. Court of Appeals for the District of Columbia Circuit denied in part the respondent's petition for review, granted the Board's petition to enforce its cease and desist order, and denied enforcement of the Board's finding that the employer's unlawful refusal to bargain with the union tainted a subsequent employee petition rejecting union representation and the Board's imposition of a bargaining order. 957 F. 2d 890 (D.C. Cir 1992).

(Chairman Gould and Members Fox and Higgins participated.)

* * *

I.O.O.F. Home of Ohio, Inc. (9-CA-32556; 322 NLRB No. 167) Springfield, Ohio Jan. 24, 1997. The Board found, based on a stipulated record, that the employer violated Section 8(a)(5) and(1) of the Act by withdrawing recognition from and refusing to bargain with Teamsters Local 654. The Board extended the certification year for 7 months--the period during the certification year when the employer failed to honor its duty to bargain. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charge filed by Teamsters Local 654; complaint alleged violation of Section 8(a)(1) and (5). Parties waived their right to a hearing.

* * *

Advance Auto Parts Distribution Center (10-CA-28714, et al.; 322 NLRB No. 161) Gadsden, Ala. Jan. 23, 1997. Agreeing with the administrative law judge, the Board found that the respondent violated Section 8(a)(1) by, among other acts, requiring an employee to display an antiunion sign against her will. With regard to the finding that the respondent violated Section 8(a)(1) and (3) by discharging Genean Baker because of her union activities, the Board agreed that the judge correctly applied Wright Line. The Board upheld the dismissal of Section 8(a)(3) charges against the respondent stating that the judge clearly viewed the proffered business reasons for changing working conditions and later eliminating the quality control department as "reasonable and valid." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Steelworkers; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Birmingham, Ala., May 20-22, 1996. Decision issued by Adm. Law Judge Albert A. Metz, Aug. 15, 1996.

* * *

Sonoma Mission Inn and Spa (20-CA-26852, et al.; 322 NLRB No. 160) Boyes Hot Springs, Calif. Jan. 23, 1997. The administrative law judge found, and the Board agreed, that the respondent violated Section 8(a)(1) of the Act by more strictly enforcing and interpreting its dress code to require the removal of union buttons, coercively interrogating employees, videotaping union activities, soliciting and impliedly promising to remedy employee grievances. The Board upheld the finding that the respondent violated Section 8(a)(3) and (1) by suspending employees Maria Hurtado and Maria Contreras and discharging Contreras to discourage union activities. The Board agreed with the dismissal of other allegations and the finding that a Gissel bargaining order was not warranted. [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

Charges filed by Hotel & Restaurant Employees Local 18; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at San Francisco, March 5-8 and 11-12, 1996. Adm. Law Judge Jay R. Pollack issued his decision Aug. 27, 1996.

* * *

Carlow's Ltd. (6-CA-15135; et al.; 322 NLRB No. 163) Uniontown, Pa. Jan. 27, 1997. On remand from the Board, the administrative law judge found that the discriminatees from two earlier decisions, (266 NLRB 305 (1983), enfd. 738 F.2d 423 (3d Cir. 1984) and 315 NLRB 27 (1994)), are entitled to sick leave payment. Finding merit in several of the General Counsel's exceptions, the Board found in this Supplemental Decision and Order that the judge's backpay calculations were incorrect because he should have applied three "principles" contained in the collective-bargaining agreement. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Hearing at Pittsburgh, April 4, 1995. Adm. Law Judge Benjamin Schlesinger issued his Supplemental Decision, May 15, 1995.

* * *

Beverly Manor Health Care Center (31-CA-21619; 322 NLRB No. 162) Burbank, Calif. Jan. 22, 1997. On a stipulated record, the Board found that the respondent violated Section 8(a)(5) of the Act when it ceased recognizing Service Employees Local 399 at a time when the union was entitled to an irrebutable presumption of continuing majority status. Applying Americare-New Lexington, 316 NLRB 1226 (1995), the Board stated: "...[W]e have already considered, and rejected, the Respondent's argument that a union should enjoy the benefits of the certification year rule only once after the initial representation proceeding in which the union was certified." [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Green Towers, Inc. (AO-346; 322 NLRB No. 150) Yonkers, N.Y. Jan. 13, 1997. In this advisory opinion, the Board stated that it would assert jurisdiction over the employer, the owner of a residential apartment building, because its income meets the $500,000 discretionary jurisdictional standard for residential buildings established by Parkview Gardens, 166 NLRB 697 (1967). [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

* * *

Tatm Realty Corp. (AO-345; 322 NLRB No. 149) Mount Vernon, N.Y. Jan. 13, 1997. In this advisory opinion, the Board stated that it would assert jurisdiction over the employer, the owner of a residential apartment building, because its income meets the $500,000 discretionary jurisdictional standard for residential buildings established by Parkview Gardens, 166 NLRB 697 (1967). [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

* * *

Sheet Metal Workers Local 104 (20-CB-9859; 322 NLRB No. 158) Santa Rosa, Calif. Jan. 17, 1997. On a stipulated record, the Board concluded that the respondent violated Section 8(b)(1)(A) and (2) of the Act by referring a contractual grievance to arbitration on January 6, 1995. By its action, the union sought to apply its collective-bargaining agreement with Lux Metals, Inc., including the union-security provision, to two employees formerly employed by the Food Production Machine Company (FPMC) whom the Board previously determined were not accreted into the contractual bargaining unit upon their transfer to the employer's Santa Rosa facility. On July 1, 1993, Lux purchased the FPMC, hired former FPMC employees Gerhard Bussey and Brian Ansic, and relocated Bussey, Ansic, and the purchased FPMC production equipment to its Santa Rosa facility, where it already employed one or two workers. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Lux Metals, Inc.; complaint alleged violation of Section 8(b)(1)(A) and (2). Parties waived their right to a hearing before an administrative law judge.

* * *

Pitt Ohio Express, Inc. (4-CA-23654-1, -2; 322 NLRB No. 153) Norristown, Pa. Jan. 17, 1997. The administrative law judge found, and the Board agreed, that the employer violated Section 8(a)(3) and (1) of the Act by discharging drivers Kenneth Kern and Edward Gall because of their activities for Teamsters Local 676. The judge found that the General Counsel established a prima facie case in support of the complaint allegation by showing that Kern and Gall were engaged in union activities with the employer's specific knowledge and demonstrated animus arising from their activities. The judge, in concluding that the employer failed to prove that it would have discharged Kern and Gall even in the absence of their union, stated: "The multiple causes assigned to the discharges . . . warrants the belief the Respondent scraped the barrel for reasons beyond the true reason to buttress its case." [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

Charges filed by Edward Gall and Kenneth Kern, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, Feb. 14-21, 1996. Adm. Law Judge Harold Bernard Jr. issued his decision June 27, 1996.

* * *

Johnstown Corp. and/or Stardyne, Inc. (6-CA-22363; 322 NLRB No. 141) Johnstown, Pa. Jan. 6, 1997. The Board reaffirmed its prior decision finding that respondent Stardyne is the alter ego of, or in the alternative, the successor to, respondent Johnstown Corporation (313 NLRB 170 (1993)). In the earlier decision, the Board did not pass on whether Johnstown and Stardyne are a single employer because the issue was immaterial in light of its alter ego finding. In remanding the case, the U.S. Court of Appeals for the Third Circuit found merit in the employers' contention that Gartner-Harf Co., 308 NLRB 531 (1992), conflicts with a finding of alter ego because the companies were not found to be a single employer. In Gartner-Hart, the Board found that "alter ego is in effect a subset of the single employer concept (i.e., not all single employers are alter egos, but all alter egos by definition meet the criteria for single employer status." 308 NLRB 533 at fn. 8. In this decision, the Board decided that "alter ego" and "single employer" are related, but separate, concepts. The Board repudiated the statement in Gartner-Harf that alter ego is a subset of the single employer concept. [TEXT] [PDF]

(Chairman Gould and Member Fox and Higgins participated.)

* * *

K.B.I. Security Services, Inc. (34-CA-6495, 6667; 322 NLRB No. 146) Bridgeport, Conn. Jan. 8, 1997. On remand from the U.S. Court of Appeals for the Second Circuit, the Board remanded the proceeding to the Regional Director to determine the appropriate remedy for the employer's unlawful refusal to recall security guards Orlando Febus and Hector Rosenthal from layoff. The Court declined to enforce the Board's order requiring the employer to reinstate Febus and Rosenthal with backpay (318 NLRB 268 (1995)), noting record evidence and statements by the judge indicating that one or both of the discriminatees may have engaged in theft on the job. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

* * *

TEC Electric, Inc. (7-CA-37522, et al.; 322 NLRB No. 147) Owosso, Mich. Jan. 9, 1997. Upholding the administrative law judge, the Board found that the respondent violated Section 8(a)(1) and (3) of the Act by refusing to hire job applicants James Leenhouts and Daniel Bruesch because of Leenhouts' expressed intent to organize respondent's employees, by threatening to close its operation before it went union, and by failing to reinstate unfair labor practice striker Paul Fryling. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by Electrical Workers (IBEW) Local 275; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Grand Rapids, Mich., June 18-19, 1996. Decision issued by Adm. Law Judge Martin J. Linsky, Sept. 18, 1996.

* * *

Carpenters Local 943 (Oklahoma Fixture Co.) (17-CB-4486; 332 NLRB No. 142) Tulsa, Okla. Jan. 10, 1997. Applying California Saw & Knife Works, 320 NLRB 224 (1995), the Board affirmed the administrative law judge's finding that the union violated Section 8(b)(1)(A) of the Act by failing to provide employee Jack Bodenstein, who filed a Beck objection, with information to allow him to decide whether to mount a challenge to the union's dues reduction calculations. Concluding that its ruling in Fred A. Nemann, 322 NLRB No. 47 (Sept. 30, 1996) did not apply, the Board affirmed the judge's finding that the union violated Section 8(b)(1)(A) by failing to make available to Bodenstein a procedure, consistent with the duty of fair representation, for challenging the amounts of union dues charged, absent waiver of his union-security obligations. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

Charge filed by Jack Bodenstein, an induvidual; complaint alleged violations of Section 8(b)(1)(A). Hearing at Tulsa, March 7, 1994. Adm. Law Judge Leonard M. Wagman issued his decision July 29, 1994.

* * *

Coronet Foods, Inc. (6-CA-21051, et al.; 322 NLRB No. 145) Wheeling, W. Va. Jan. 10, 1997. The Board affirmed the administrative law judge's supplemental decision subject to severing two issues; ordered the employer to make whole 24 individuals and the Estate of Michael Fazio by paying them amounts totaling $1,253,228; and remanded the two severed issues to the judge for further findings, conclusions, and recommendations, i.e., whether employees Richard Melvin, Mark Hilliard, and Randall Reed incurred equipment and moving expenses during the backpay period and are entitled to reimbursement, and the amount of the reduction to the backpay of employee Arley Nemo for interim employment travel expenses. The Board ordered in 1991 that the employer restore its transportation department and reinstate and make whole certain of its former employees. 305 NLRB 79. By judgment entered January 5, 1993, the U.S. Court of Appeals for the District of Columbia Circuit enforced the backpay provisions of the Board's order. 981 F.2d 1284. [TEXT] [PDF]

(Members Browning, Fox, and Higgins participated.)

Hearing held at Wheeling, July 17-21 and Oct. 16-18, 1995. Adm. Law Judge Steven M. Charno issued his supplemental decision April 19, 1996.

* * *

Willamette Industries, Inc., Duraflake Division (36-RC-5742; 322 NLRB No. 151) Jan. 10, 1997. Members Browning, Fox, and Higgins granted the employer's request for review of the Acting Regional Director's decision and direction of election solely with respect to the direction of a mail ballot election, denied the employer's request for review in all other respects, reversed the Acting Regional Director's direction of a mail ballot election, and directed that a manual election be conducted. The employer's motion to say the election is moot. Members Browning, Fox, and Higgins wrote: "The sole factor cited in favor of a mail ballot, that the Employer's facility is approximately 80 miles from the Board's office, alone is insufficient to justify a departure from the normal manual election procedure in light of the fact that the unit employees work at a single site." [TEXT] [PDF]

Chairman Gould concurred in the majority opinion "because there is nothing in the record from which one could conclude that the Acting Regional Director's ordering of a postal ballot would constitute an efficient use of Board resources." The Chairman added: "Accordingly, the record does not establish that the resources of the Regional Office have been burdened. Presented with a record establishing such a burden, I would conclude that the Acting Regional Director did not abuse his discretion in ordering a postal ballot. But those facts are not presented in this record."

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

* * *

Automotive Trades District Lodge 190 of Northern California, Machinists District Lodge 160, and Automotive Machinists Lodge 289 (32-CD-147; 322 NLRB No. 143) Oakland, Calif. and Tacoma, Wash. Jan. 10, 1997. The Board decided that employees represented by Automotive Trades District Lodge 190 of Northern California, Machinists District Lodge 160, and Automotive Machinists Lodge 289 (IAM), rather than those employees represented by the Longshoremen's and Warehousemen's International, are entitled to perform the work functions involving the gate inspection of inbound and outbound containers and trucking equipment at the Port of Oakland, California and the Port of Tacoma, Washington. [TEXT] [PDF]

(Chairman Gould and Members Browning and Fox participated.)

* * *

Eaton Technologies, Inc., A Fasco Co. (7-CA-37714; 322 NLRB No. 148) Eaton Rapids, Mich. Jan. 10, 1997. The Board, affirming the administrative law judge, held that the respondent violated Section 8(a)(1) and (3) of the Act by coercively questioning employees about their union activity, by threatening employees with retaliation because they engaged in protected activity, by discriminatorily removing and destroying union literature or otherwise disparately enforcing its bulletin board policy, and by placing an employee on involuntary leave status because of her union activities. [TEXT] [PDF]

(Chairman Gould and Members Browning and Higgins participated.)

Charges filed by United Auto Workers Region 1-C; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Lansing, Mich. on April 10, 1996. Adm. Law Judge Judith Ann Dowd issued her decision on Aug. 26, 1996.