NLRB Decisions - 1997 July-December

The hearing officer declined to set aside the election, however, because she believed that the misconduct would not sufficiently affect the results of the election. Citing Caron International, 246 NLRB 1120 (1979), the Board found that "[t]he hearing officer's findings with regard to these factors are not correct" because, in part, the hearing officer determined that only 2 employees were affected by the interrogations. The Board wrote: "In sum, there were several incidents of objectionable conduct, including a serious threat, at least five employees were aware of the misconduct, and a change in only a few votes could have altered the outcome. In such circumstances, we cannot conclude that the Employer's misconduct was de minimis. Accordingly, we shall set the election aside." A second election was directed.

(Chairman Gould and Members Fox and Hurtgen participated.)

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Zimmerman Plumbing and Heating Co., Inc. (7-CA-37323, et al.; 325 NLRB No. 5) Kalamazoo, Mich. Nov. 8, 1997. The Board considered the respondent's exceptions to the administrative law judge's supervisory and agency findings and agreed with the judge that Robert Link is a statutory supervisor within the meaning of Section 2(11) of the Act and that foremen Wayne Ware, Harold Bartholomew, Roger Wedig, and Mike Dennis had apparent authority to act on behalf of management and that they, therefore, acted as agents of the respondent at all relevant times. Thus, the Board agreed with the judge that "it was reasonable for the rank-and-file employees to believe that the foremen were reflecting company policy and acting for management when they engaged in the conduct found to be unlawful." The Board found it unnecessary to rely on the judge's determination that the four individuals are also supervisors. Member Higgins would adopt the judge's findings that all five of the respondent's foremen were supervisors. He does not pass on whether they were agents under the theory of "apparent authority." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Sheet Metal Workers Local 7; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Grand Rapids, May 5-9, June 24-27, and Sept. 18, 1996. Adm. Law Judge Richard H. Beddow Jr. issued his decision Feb. 5, 1997.

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Great Southern Fire Protection, Inc. (10-CA-27871; 325 NLRB No. 13) Pelham, Ala. Nov. 7, 1997. The Board affirmed the administrative law judge's finding that the respondent's commission of unfair labor practices during the course of bargaining precludes it from being able to assert the existence of impasse. The Board relied on its established principle that an employer may not raise this defense if the purported impasse is reached in the context of serious unremedied unfair labor practices that affect the negotiations. See Noel Corp., 315 NLRB 905, 911 (1994), enfd. denied on other grounds, 82 F.3d 1113 (D.C. Cir. 1996). The Board also affirmed the judge's finding that the parties did not, in any event, bargain to impasse prior to the respondent's unilateral implementation of new terms and conditions of employment. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Road Sprinkler Fitter Local 669; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Birmingham on April 24, 1996. Adm. Law Judge Lawrence W. Cullen issued his decision April 9, 1997.

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Carole Ann Paolicelli, Paul Paolicelli, and West Dixie Enterprises, Inc., Alter Egos, and a Single Employer (12-CA-16716; 325 NLRB No. 23) Miami, Fla. Nov. 8, 1997. In the absence of exceptions, the Board adopted pro forma the administrative law judge's findings that the respondent violated Section 8(a)(3) of the Act by refusing to hire John Ranken, David Svetlick, and Roger Whetstone; and violated Section 8(a)(1) by unlawfully interrogating employees about their union membership, creating the impression of surveillance, prohibiting employees from discussing the union, and threatening to assign union supporters more onerous duties. [TEXT] [PDF]

Chairman Gould and Member Fox agreed with the judge that the personal liability to remedy the unfair labor practices should be imposed on respondent's president and owner, Carole Ann Paolicelli, and her husband Paul Paolicelli--who oversaw the daily operation of West Dixie Enterprises, Inc. and held himself out as its owner, but they relied on different legal bases. Chairman Gould and Member Fox applied White-Oak Coal, 318 NLRB 732 (1995), which issued subsequent to the cases on which the judge relied and which set forth a two-part test for determining when personal liability would be imposed on shareholders for unfair labor practices committed by their corporations. In White-Oak, the Board held that it would pierce the corporate veil and impose such liability when: "(a) the shareholder and corporation have failed to maintain separate identities; and (2) adherence to the corporate structure would sanction a fraud, promote injustice, or lead to an evasion of legal obligations." Id. at 735.

Chairman Gould and Member Fox also found, under a second legal theory, that the Paolicellis are personally liable for remedying the unfair labor practices for the period of West Dixie's corporate dissolution because they personally operated West Dixie as an ongoing enterprise during the period when that corporation did not legally exist. Urban Laboratories, 308 NLRB 816 (1992). See also Total Property Services, 317 NLRB 975, 979 (1995). Chairman Gould and Member Fox rejected the respondent's argument that the Paolicellis are not personally liable for remedying the unfair labor practices based on Florida statute 607.1421(4).

Member Higgins, concurring and dissenting, agreed that, under Urban Laboratories, the Paolicellis are personally liable for remedying the violations for the period when West Dixie was dissolved as a corporation under Florida law. However, Member Higgins found that the Paolicellis are not liable under White Oak Coal's two-prong test. Member Higgins stated: "I assume arguendo that the first prong is satisfied, based on the numerous instances in which the Paolicellis intermingled their funds with those of [the] corporation. However, the second prong is not satisfied because the conduct of the Paolicellis did not result in fraud, injustice, or inequity."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 728; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Miami, Oct. 24-25, 1996. Adm. Law Judge D. Barry Morris issued his decision Dec. 16, 1996.

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Hillhaven Rehabilitation Center (12-CA-15919, et al.; 325 NLRB No. 9) Cape Coral, Fla. Nov. 9, 1997. Reversing the administrative law judge, the Board held that the respondent violated the Act by (1) posting a letter one year after the union won a 1994 representation election stating that the union was in criminal noncompliance with Florida law, (2) withdrawing from negotiations with the union, and thereafter, (3) withdrawing recognition of the union's collective-bargaining representative status and making unilateral changes affecting union employees. The Board, however, agreed with the judge that the respondent committed several unfair labor practices, including the discharge of a charge nurse, in the period leading up to the election. [TEXT] [PDF]

On the charge nurse issue, while finding that the nurse was not a supervisor as the respondent had alleged in line with recent Board precedent, the judge included a footnote quotation from the dissenting opinion in Providence Hospital, 320 NLRB 717 (1996), suggesting his disagreement with this precedent. In its own footnote, the Board stated: "It is, of course, well established that the judge has a duty to apply Board precedent, not the contrary views of a circuit court of appeals, much less those of an individual dissenting Board member. Iowa Beef Packers, 144 NLRB 615, 616-617 (1963)."

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Federation of Physicians and Dentists; complaint alleged violation of Sections 8(a)(1) and (5). Hearing held on various dates in Feb., March, April, and May 1996. Adm. Law Judge Peter E. Donnelly issued his decision on Dec. 31, 1996.

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AT&T Corp. (2-CA-29133; 325 NLRB No. 10) New York, N.Y. Nov. 8, 1997. The Board, affirming the administrative law judge, held that the respondent's discontinuance of its longstanding check-cashing practices was a subject over which it had an obligation to bargain with the union. It said the respondent did not give the required 45 day written notice, giving the union the opportunity to initiate negotiations. The Board rejected the respondent's defense that it was privileged to end its paycheck-cashing service because the State of New York repealed its law requiring some accommodation for employees to be paid in cash. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Communications Workers Local 1110. Hearing at New York on May 19, 1997. Adm. Law Judge Michael A. Marcionese issued his decision on July 16, 1997.

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University of Great Falls (19-RC-13114; 325 NLRB No. 3) Great Falls, Mont. Nov. 8, 1997. In a decision on review and order, the Board affirmed the Regional Director's conclusion that the employer's faculty members are not managerial employees as defined in NLRB v. Yeshiva University, 444 U.S. 672 (1980), and instead are employees subject to the Act. The Board noted that the facts of the case are similar to those in Florida Memorial College, 263 NLRB 1248 (1982) and St. Thomas University, 298 NLRB 280 (1990). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

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Four B Corp. d/b/a Price Chopper (17-CA-17232, 17299; 325 NLRB No. 20) Kansas City, Kan. Nov. 8, 1997. A Board majority, consisting of Chairman Gould and Member Fox, found merit to the General Counsel's and union's exception to the administrative law judge's finding that prohibiting the union from soliciting off-duty employees while allowing nonunion groups to solicit customers did not amount to disparate treatment by the respondent. The majority found that the respondent allowed nonunion groups to solicit its off-duty employees outside its stores and that, by denying the same privilege to the union, it violated Section 8(a)(1) of the Act. The Board stated: "But even if the nonunion groups that were allowed to solicit on the Respondent's property, and the Union, which was not, were attempting to reach different audiences, as the judge found, we would reach the same conclusion in this case. The complaint alleges only that the Respondent violated the Act by discriminatorily refusing to allow the Union to solicit off-duty employees on the sidewalks and parking lots outside the stores. In these circumstances, we find no material distinction between the Respondent's off-duty employees and its customers. In our view, an employer that denies a union access to off-duty employees, while regularly allowing nonunion organizations to solicit and distribute literature on its property, in effect discriminates against union solicitation based on its content, and therefore violates Section 8(a)(1). *** In so finding, we do not suggest that an employer may not lawfully exclude union organizers from contacting employees on its property in the absence of a published rule to that effect. However, we think that when an employer, like the Respondent, has a published rule prohibiting solicitation under stated circumstances, and excludes a union from its property under materially different circumstances in which no outside organization has been excluded, it is fair to infer, as we do here, that a discriminatory motive lies behind the exclusion." [TEXT] [PDF]

The Board did not find merit in the respondent's argument that, in any event, the nonunion solicitation that it permitted was not extensive enough to preclude it from denying access to the union representatives. "The exceptions the Respondent made to the no-solicitation rule were too extensive to enable the Respondent to deny access to the Union on similar terms," the Board said. In addition, the Board rejected the arguments that (1) the union was barred from soliciting because on prior occasions union representatives misbehaved and (2) the union did not first ask permission to solicit as other groups had.

The Board agreed with the General Counsel and the union that, since the revised no-solicitation policy does not allow any exceptions to any outside group and there is no allegation that its change in policy is unlawful, "simply to order the Respondent to cease and desist from discriminatorily denying access to the Union would be a meaningless remedy." Thus, the majority ordered the respondent to afford the union access to its Roeland Park and Grandview facilities during the 60-day notice posting period.

Dissenting, Member Higgins does not agree that the respondent "discriminated against employees based on Section 7 considerations." Citing Riesbeck Food Markets, 315 NLRB 940 (1994), enf. denied 91 F.3d 132 (4th Cir. 1996), and other circuit court of appeals cases, Member Higgins stated: "In the instant case, the judge found that the Respondent differentiated between solicitations aimed at customers (permitted) and solicitations aimed at employees (forbidden). Thus, a union would be able to appeal to customers (e.g., with respect to a labor dispute), and a nonunion organization (e.g., the Salvation Army) could not appeal for donations from employees. Since the Respondent therefore does not differentiate along Section 7 lines, the Respondent has not violated the Act."

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Food and Commercial Workers Local 576; complaint alleged violation of Section 8(a)(1). Hearing at Overland Park, Kans., Feb. 6, 1996. Decision issued by Adm. Law Judge Richard J. Linton, April 1, 1996.

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Black Entertainment Television, Inc. (5-CA-24066; 324 NLRB No. 177) Washington, D.C. Nov. 7, 1997. The Board agreed with the administrative law judge, for the reasons he stated, that the General Counsel established that union activity was a motivating factor in the respondent's decision to lay off 13 employees and reduce the work hours of a 14th employee, and that the respondent would not have taken the same action in the absence of union activity. In addition, the Board found that the respondent's failure to carry its rebuttal burden is supported not only by the reasons stated by the judge, but also by the respondent's "shifting defenses," citing Sound One Corp., 317 NLRB 854, 858 (1995). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Kimberly R. McCord, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Washington, D.C. on 9 days from March 11-April 15, 1996. Decision issued by Adm. Law Judge Marvin Roth, Sept. 17, 1996.

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Bob Evans Farms, Inc. d/b/a Bob Evans Restaurants (33-CA-11389; 325 NLRB No. 7) East Peoria, Ill. Nov. 8, 1997. The administrative law judge held, with Board concurrence, that the respondent violated Section 8(a)(1) of the Act by discharging and refusing to reinstate employees who walked off the job to protest the termination of their supervisor. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Diane L. Gorrell, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Peoria, Dec. 4-5, 1996. Decision issued by Adm. Law Judge Irwin H. Socoloff, July 10, 1997.

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Oklahoma Zoological Trust (17-RC-11446; 325 NLRB No. 17) Oklahoma City, Okla. Nov. 8, 1997. On appeal from the Regional Director's administrative dismissal of a representation petition filed by Teamsters Local 886, a Board majority of Members Fox and Higgins agreed with the Regional Director that the employer is a political subdivision exempt from Board jurisdiction because it is administered by individuals who are responsible to public officials and to the general electorate. The majority found that this finding is "in complete accord with the Supreme Court's decision in Hawkins." Dissenting, Chairman Gould finds that the Trust is not administered by individuals who are clearly responsible to public officials, and thus, the Hawkins test is not met. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

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Mobil Oil Exploration & Producing, U.S., Inc. (15-CA-12801; 325 NLRB No. 18) New Orleans, La. Nov. 8, 1997. A majority of Chairman Gould and Member Fox held that employee Pemberton was unlawfully terminated by the respondent on the basis of protected concerted activities. In doing so, the majority reversed the administrative law judge, who in dismissing the complaint, had agreed with an arbitrator's finding that Pemberton's discharge was justified. Among the factors that swayed the judge and arbitrator was Pemberton's breach of a confidentiality promise to the respondent in connection with an investigation he had triggered of rival employee and union president Thibodeaux. [TEXT] [PDF]

In the course of breaching an agreement not to talk about an investigation of alleged misconduct by Thibodeaux, Pemberton told several employees on break that he thought the respondent was setting him up to be fired. In the course of this conversation, overheard by a supervisor, he was critical of Tribodeaux's conduct as union president.

The majority concluded that Pemberton's conduct constituted protected concerted activity since he was "attempting to enlist the support of other employees in opposition to the policies and alleged derelictions of the incumbent union leadership."

In a concurring opinion, Chairman Gould expressed his view that a separate basis for not deferring to the arbitration award "is the arbitrator's failure to consider Pemberton's unfair labor practice charge in deciding that he was properly discharged under the just cause provision of the collective-bargaining contract." He thought Olin was incorrectly decided and would adhere to the more stringent deferral standard in Raytheon.

Member Higgins dissented, agreeing with the judge that "clear repugnance has not been shown" and accordingly, the Board should defer to the arbitral award.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Bob L. Pemberton, an individual; complaint alleged violation of Section 8(a)(1). Adm. Law Judge Albert A. Metz issued his decision on a stipulated record on April 13, 1996.

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Infinity Broadcasting Corp. of Illinois d/b/a WJJD (13-CA-34583; 324 NLRB No. 167) Chicago, Ill. Nov. 7, 1997. The Board upheld the administrative law judge's finding that the employer violated Section 8(a)(3) and (1) of the Act by discharging board operator Jack Miller from his position with radio station WJJD because of his union activity, i.e., filing a successful grievance with the American Federation of Television and Radio Artists over the respondent's failure to pay him at the contractual rate and continuing to raise contract related matters. The respondent defended its action based on the cancellation of the show on which Miller worked. The Board noted that although there is no allegation that the cancellation was unlawful, whenever the respondent canceled a show in the past, it transferred the show's board operator to other tasks. The respondent did not transfer Miller to other programs or tasks. Instead, it retained Miller for the part-time work that he had always performed at a sister station owned and operated by the respondent in addition to work on the canceled show. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Jack Miller, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago on May 15, 1997. Adm. Law Judge William G. Kocol issued his decision July 16, 1997.

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United Parcel Service (17-UC-201; 325 NLRB No. 21) Lenexa, Kansas Nov. 7, 1997. Members Fox and Higgins affirmed the Regional Director's dismissal of the petition seeking to clarify the nationwide bargaining unit to include administrative assistants employed within the territorial jurisdiction of the petitioner, Teamsters Local 795. In finding that the Regional Director correctly dismissed the petition because of the failure to include other employees with like functions and interests, Members Fox and Higgins stated: "There are employees in similar positions at other UPS facilities throughout the country who have similar duties, yet the petition does not seek to include them. . . . Stable and efficient labor relations would not be promoted by fragmenting the employees in the administrative assistant classification and adding some, but not all, to the nationwide unit." [TEXT] [PDF]

Chairman Gould, dissenting, would reverse the Regional Director, reinstate the petition, and remand the case for further processing. Chairman Gould disagreed with his colleagues' determination "that the only acceptable method of clarifying the existing unit is on a nationwide basis." The Chairman said that "since the nationwide unit is itself not uniform, i.e., some classifications of employees are included in some facilities and excluded at others, I would not require uniformity with respect to the administrative assistant classifications."

In 1979, UPS and the Teamsters International executed their first National Master Agreement consolidating all previously recognized local units into a single nationwide bargaining unit. The employees in the nationwide unit are represented jointly by Teamsters United Parcel Service National Negotiating Committee (TUPSNNC) and the Teamster Local Unions. UPS' nationwide operations are divided into 68 districts. The State of Kansas constitutes one such district. The petitioner represents the employees employed at certain Kansas facilities. Three other Teamster Local Unions also represent employees working at UPS facilities within the Kansas district. UPS employs nationwide in excess of 800 individuals classified as administrative assistants. None of the administrative assistant positions has been included in the bargaining unit in the past. The petitioner seeks to accrete only the 14 administrative assistants who are employed within its territorial jurisdiction.

(Chairman Gould and Members Fox and Higgins participated.)

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Excel Container, Inc. (13-CA-33569, et al.; 325 NLRB No. 14) Aurora, Ill. Nov. 7, 1997. The Board modified its standard remedial provision in cases where the respondent has gone out of business or has closed its facility, to require the respondent to mail a copy of the notice to employees employed by it at any time since the date of the first unfair labor practice rather than since the date that a charge is filed as set forth in Indian Hills Care Center, 321 NLRB 144 (1996), and subsequent cases. The Board explained: "The purpose of the notice, as the judge noted, is to ensure that employees are notified of the outcome of the Board proceeding. See Indiana Hills, supra. The use of the date that the first violation of the Act occurred as the operative date ensures that all employees who were exposed to the unfair labor practice and its effects will be notified of the outcome of the Board proceeding." The Board also noted that "the charge can be filed up to 6 months after the alleged unfair labor practice occurred and, as noted by the judge here, the first charge filed may not generate any complaint allegations, or all complaint allegations generated by the first charge may be dismissed." [TEXT] [PDF]

In the instant case, the employer was found to have violated the Act by, among other things, discharging two employees, installing a buzzer system which had the effect of curtailing employees' wash-up time, ceasing the use of air conditioning in the employees' lunchroom, offering benefits to an employee if she continued her perceived nonsupport of the union, and interrogating two employees about the union.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 714; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago, Oct. 30-31 and Nov. 1, 1996. Adm. Law Judge Nancy M. Sherman issued her decision May 30, 1997.

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Merit Electric Company, Inc. (12-CA-16363, et al.; 325 NLRB No. 19) Largo, Fla. Nov. 7, 1997. Members Fox and Higgins agreed with both the respondent and the General Counsel that the administrative law judge failed to make a clear credibility resolution concerning the testimony of company vice president, Tom Wooten, about his reasons for failing to hire job applicant Frank Roper and that such a resolution is necessary for a proper evaluation of the respondent's Wright Line defense of demonstrating that it would not have hired Roper even in the absence of his union activities. Members Fox and Higgins, who disagreed with the parties that it would be appropriate for the Board itself to make such a credibility finding, remanded the case to the judge for an explicit finding concerning the credibility of Wooten's testimony about the reasons why he refused to hire Roper. [TEXT] [PDF]

In dissent, Chairman Gould stated: "Although the judge did not explicitly analyze the failure to hire with reference to Wright Line [citation omitted], his findings are consistent with that decision and, unlike my colleagues, I find it unnecessary to insist that the judge recast his findings and conclusions to achieve formalistic consistency with Wright Line. *** The judge has made all the necessary findings and the case is ripe for review. Therefore, I dissent from the remand and would proceed to a determination of whether the judge's decision should be adopted."

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers IBEW Locals 728 and 915; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tampa on Feb. 18, 1997. Adm. Law Judge Robert C. Batson issued his decision Feb. 19, 1997.

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Contractor Services, Inc. (10-CA-28856, et al.; 324 NLRB No. 189) Davenport, Iowa Nov. 8, 1997. Chairman Gould and Member Fox agreed with the administrative law judge's findings that: (1) the respondent's letter and "irrevocable authorization form" mailed to job applicants were facially coercive and violated Section 8(a)(1) of the Act; (2) the respondent's refusal to hire three members of IBEW union locals violated Section 8(a)(3); (3) the respondent's letter and form discriminated against union applicants by clearly indicating to them that the respondent would not hire them unless they returned to the respondent a completed form, which involved an attempt to force the employees to waive their right to engage in protected union activity, in violation of Section 8(a)(3); and (4) the respondent's use of the form involved discrimination against union applicants in other phases of the employment relationship. Chairman Gould and Member Fox rejected the respondent's asserted defense that it had a legitimate business reason for requiring union applicants to submit a completed form, i.e., to ensure that the union would not force members to quit their jobs if assigned to a nonunion contractor. [TEXT] [PDF]

Member Higgins, concurring in the result, relied solely on the fact that the respondent asked applicants whether they were being subsidized by the union, finding that the question "does not pass muster" under Johnnie's Poultry Co., 146 NLRB 770, 775 (1964). Member Higgins noted: "The legitimate inquiry is whether the Union will permit the member to work for a nonunion employer. The question of whether the Union subsidizes that member is beyond the legitimate inquiry."

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers IBEW Locals 443 and 347; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Birmingham on May 13, 1996. Adm. Law Judge J. Pargen Robertson issued his decision July 22, 1996.

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Americare Pine Lodge Nursing and Rehabilitation Center (9-CA-33304, 33478; 325 NLRB No. 4) Beckley, W. Va. Nov. 8, 1997. The Board upheld the administrative law judge's decision that the respondent engaged in direct dealing with bargaining unit employees in violation of Section 8(a)(5) and (1) of the Act in an unsuccessful attempt to obtain acceptance of its proposal of a contract extension and wage increase prior to the expiration of the parties' collective-bargaining agreement. The Board found a causal relationship between the respondent's unfair labor practices and the decertification-type petitions presented to the respondent and, thus, it agreed with the judge that the respondent was precluded from relying on the petitions as a basis for its withdrawal of recognition from Health Care and Social Service Union, District 1199, WV/KY/OH. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated)

Charges filed by Health Care and Social Service Union, District 1199, WV/KY/OH; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Beckley, Feb. 8-9 and May 17, 1996. Adm. Law Judge Leonard M. Wagman issued his decision May 24, 1996.

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United Parcel Service (7-CA-33137; et al.; 325 NLRB No. 11) Saginaw, Mich. Nov. 7, 1997. The administrative law judge found, inter alia, that the respondent violated Section 8(a)(4) and (1) of the Act by discharging David Dunning because he filed an unfair labor practice charge with the Board. In so doing, she rejected the contention that the respondent fired Dunning because he sexually harassed another employee. In its exceptions, the respondent challenged the judge's finding that there is no record evidence that Dunning engaged in sexual harassment. A majority of the Board, consisting of Members Fox and Higgins, found that there is conflicting testimony about Dunning's conduct which the judge failed to address. "In these circumstances, we find it necessary to remand this proceeding to the judge for an explicit credibility determination" concerning the overlooked testimony and for an analysis under Wright Line, the majority stated. [TEXT] [PDF]

Dissenting, Chairman Gould finds that the judge did not overlook the testimony but rather implicitly credited Dunning's testimony over that of another witness.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by David Dunning, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Detroit, Sept. 18 and 23, 1996. Decision issued by Adm. Law Judge Judith Ann Dowd, July 8, 1997.

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MDI Commercial Services (18-CA-13580; 325 NLRB No. 2) Grand Rapids, Minn. Nov. 8, 1997. The Board adopted the judge's findings that the respondent committed violations of Section 8(a)(1) and (3) of the Act in response to the union organizing activities of its employees. For reasons set out in its decision, the Board agreed with the judge that Regina Saric did not voluntarily quit her employment but rather that Lorraine Bunn, the plant manager, unlawfully discharged her. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 160; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Grand Rapids, Aug. 20-23, 1996. Decision issued by Adm. Law Judge William J. Pannier III, Jan. 17, 1997.

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Rogers Environmental Contracting, Inc. (4-CA-23341; 325 NLRB No. 8) Philadelphia, Pa. Nov. 8, 1997. The issue in this case is whether the respondent violated Section 8(a)(1) of the Act by refusing to employ Charging Party Antonio Singletary and fellow employee Willie McCoy because they engaged in protected concerted activity. The Board agreed with the administrative law judge's finding that Singletary and McCoy engaged in protected concerted activity when they cashed their paychecks despite the respondent's warning not to do so because of insufficient funds. Contrary to the judge who dismissed the complaint, the Board found that Singletary and McCoy engaged in protected concerted activity in their meeting with company president David Rogers when they protested Rogers' instructions not to cash the paychecks. In agreement with the judge, the Board also found that Rogers threatened the employees that they would not be offered work in the future if they cashed their paychecks too soon. Based on these factors, the Board concluded that (1) the General Counsel established that the respondent's subsequent failure to offer work to these employees was motivated by their protected concerted activity, and (2) the respondent failed to satisfy its burden under Wright Line. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Antonio Singletary, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Philadelphia, March 27, 1996. Decision issued by Adm. Law Judge Lowell Goerlich, June 6, 1996.

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Syracuse University (3-RC-10506; 325 NLRB No. 15) Syracuse, N.Y. Nov. 8, 1997. The Regional Director issued a Decision and Direction of Election in which she found appropriate the petitioned-for unit, consisting of parking lot attendants, parking enforcement officers, and parking control officers, including Parking Service clerical employees. The Regional Director, sua sponte, included non-Parking Service department employees who volunteer to work for the Parking Service department during special events, as "on-call" employees eligible to vote under the formula set forth in Davison-Paxon Co., 184 NLRB 21 (1970). The Board affirmed the Regional Director's conclusion that the petitioned-for unit is appropriate. However, the Board reversed the Regional Director's inclusion of "on-call" employees under Davison-Paxon. [TEXT] [PDF]

Chairman Gould, dissenting, would have denied review with respect to the Regional Director's unit determination but reversed the inclusion of other employees as "on-call." Member Fox, dissenting in part, would not include the Parking Service clerical employees in the unit.

(Chairman Gould and Members Fox and Higgins participated.)

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Sam's Club, a Division of Wal-Mart Stores, Inc. (5-CA-24369, et al., 5-RC-14036; 325 NLRB No. 6) Landover, Md. Nov. 8, 1997. The administrative law judge concluded, and the Board agreed, that the respondent violated Section 8(a)(1) of the Act by directing and warning employees not to engage in union activities and threatening that the facility would close if the union won the election; and violated Section 8(a)(1) and (3) by disciplining an employee, Anthony Perez, more harshly because he engaged in union activity. The Board adopted the judge's recommendation to sustain Objection 7, which alleges that the respondent discriminatorily promised better wages and benefits to employees. Citing Redd-I, Inc., 290 NLRB 1115 (1988), the Board agreed with the judge's finding that the General Counsel's amendment to the complaint was not time barred under Section 10(b), and thus, the motion was properly granted. In addition, the Board held, for the reasons stated by the judge, that operations manager Harris' comments violated Section 8(a)(1). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by United Food and Commercial Workers Local 400; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Washington, D.C., March 21-23, April 4-6, and April 20, 1995. Decision issued by Adm. Law Judge Arline Pacht, April 22, 1996.

* * *

Eldorado Tool, Division of Quamco, Inc. (34-CA-6966-1; 325 NLRB No. 16) Milford, Conn. Nov. 9, 1997. The Board affirmed the administrative law judge's findings that the respondent, in response to the UAW's 1995 organizing campaign, violated Section 8(a)(1) of the Act in several instances before the election through threats of plant closure by top company officials and violated Section 8(a)(3) by failing to implement its job reevaluation program. Members Fox and Higgins found, contrary to the judge, that the respondent also violated Section 8(a)(1) by its "UAW Wall of Shame" display (a display naming plants with UAW-represented employees that had closed), and by its February 6, 13, and 15, 1995 letters to employees. Chairman Gould, dissenting in this respect, would affirm the judge's dismissal of the allegations. [TEXT] [PDF]

The respondent created its "UAW Wall of Shame" display and began its letter campaign opposing the union simultaneously. Beneath a computer paper banner reading "PLANT CLOSURES: UAW WALL OF SHAME," the respondent placed tombstones approximately 2-foot-wide by 3-foot-long with "RIP" and the name of a UAW-represented plant that had closed printed on each tombstone. Every day or two, the respondent would add another tombstone with the name of another closed plant. On the day before the election, the respondent posted a tombstone with the name "Eldorado" on it, and a question mark in the middle.

Members Fox and Higgins found that the "UAW Wall of Shame" campaign constituted an unlawful threat of plant closure because the respondent "offered no explanation of the basis for its assertion that the UAW was to blame for the closing of the other plants" or "any objective facts as the basis for a belief that, for reasons beyond its control, selection of the UAW as the employees' bargaining representative might well cause the Eldorado plant to suffer the same fate." Members Fox and Higgins stated further: "In the absence of such an explanation, based on objective facts, and noting particularly that top employer officials were otherwise threatening closure, the message conveyed to employees was not that economic realities might lead the plant to close, but that the Respondent might retaliate against them and close the plant merely because they chose union representation." In the absence of some objective basis for the respondent's claim in the letters at issue i.e., that if employees voted for the UAW they risked plant closure and loss of job, Members Fox and Higgins found that they constituted unlawful threats.

In dissent, Chairman Gould found that the "Wall of Shame" and the three letters "are permissible references by the Respondent to its opponent's record at other facilities in the area and do not constitute either direct or indirect threats of job loss or plant closure." Chairman Gould wrote: "There is nothing in the display or the letters which indicate that the Respondent will retaliate against employees for union activities. If the Respondent's statements are not complete or accurate, it is not the Board's role to compel the Respondent to become an apologist for the Union or any party. In such instances, the burden falls on the UAW to respond and the record indicates that it did so." The Chairman said that "the Board should not seek to regulate either the employer or the union's speech absent coercion but should instead seek the full utilization of existing methods of communication so that both sides can have full and wide-open discussion of 'all arguments for, as well as against unionization,'" citing Excelsior Underwear, 156 NLRB 1236, 1240 (1966).

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by the Auto Workers (UAW); complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, Sept. 11 and 12, 1995. Adm. Law Judge William F. Jacobs issued his decision Aug. 12, 1996.

* * *

Stark Electric, Inc. (9-CA-33933; 324 NLRB No. 184) Huntington, W. Va. November 7, 1997. The administrative law judge found, with Board approval, that the respondent violated Section 8(a)(1) of the Act by interrogating a job applicant and an employee about their union sympathies, threatening employees by saying that "union guys" would be run off jobsites and making other derogatory remarks about union members; and violated Section 8(a)(1) and (3) by laying off three employees because it knew or suspected that they had engaged in union activity. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 317; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Huntington, Feb. 5, 1997. Decision issued by Adm. Law Judge Arthur Amchan, April 29, 1997.

* * *

MBI Acquisition Corp, d/b/a Gayfers Department Store (12-CA-15841 (1-2); 324 NLRB No. 188) Daytona Beach, Fla. Nov. 8, 1997. On a stipulated record, a Board majority of Chairman Gould and Member Fox concluded that the respondent violated Section 8(a)(1) of the Act by prohibiting subcontractor employees from engaging in protected handbilling in front of its Daytona Beach store and causing the police to threaten those employees with arrest for engaging in that activity. The Board also determined that the respondent violated Section 8(a)(1) by maintaining and enforcing overly broad no-solicitation/no distribution rules. Dissenting in part, Member Higgins concludes that Republic Aviation, 324 U.S. 793 (1945), does not apply to this case. He stated: "I also believe that the Section 7 right involved herein (asking for a consumer boycott of an employer because of standards maintained by the employer's contractor) is not on a par with the Section 7 right to organize fellow employees. Finally, it is clear that the General Counsel has not met his burden of showing that the customers could not be reached elsewhere. In these circumstances, I would find no violation." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 756; complaint alleged violation of Section 8(a)(1).

* * *

Jim Walter Resources, Inc. (10-CA-29281; 324 NLRB No. 181) Brookwood, Ala. Nov. 8, 1997. The administrative law judge found that the General Counsel "failed to prove that Respondent refused to hire Tim Burchfield because of union or protected activities." The Board reversed the judge and found that the respondent's refusal to hire Burchfield was in violation of Section 8(a)(1) and (3). Citing the evidence showing the respondent's knowledge and animus, and the timing of its action, the Board concluded that the General Counsel met his Wright Line burden of showing that Burchfield's union and protected activities were a motivating factor in the refusal to hire him. "Although the judge suggested that it was also the General Counsel's burden to show that 'Burchfield's complaints were exclusively union or protected concerted complaints,' we stress that this was not the General Counsel's burden in order to meet the requirements of Wright Line," the Board stated. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Tim Burchfield, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Birmingham, Ala., Jan. 21, 1997. Decision issued by Adm. Law Judge J. Pargen Robertson March 25, 1997.

* * *

National Steel and Shipbuilding Co. (21-CA-30295, et al.; 324 NLRB No. 170) San Diego, Calif. Nov. 7, 1997. Affirming the administrative law judge, the Board found that the respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to rehire employee Nancy Becker because of her protected concerted and union activities. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Shopmen's Local 627; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Diego, for 7 days in Oct. 1995. Decision issued by Adm. Law Judge Joan Weider, June 5, 1997.

* * *

Teamsters Local 776 (Carolina Freight Carriers) (5-CB-7884; 324 NLRB No. 176) Harrisburg, Pa. Nov. 7, 1997. Upholding the administrative law judge, the Board agreed that Teamsters Local 776 violated Section 8(b)(1)(A) of the Act by failing to advise employee Timothy Blosser of his legal rights under Communication Workers v. Beck, 487 U.S. 735 (1988), and General Motors, 373 U.S. 734 (1963), with regard to his union membership and financial obligations when seeking to enforce a union-security agreement with respect to his employment by Carolina Freight Carriers. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Timothy M. Blosser; an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at York, Pa., Dec. 16, 1996. Decision issued by Adm. Law Judge Michael O. Miller, March 24, 1997.

* * *

Montauk Bus Co. (29-CA-19466, 19518; 324 NLRB No. 172) Holbrook, N.Y. Nov. 7, 1997. The administrative law judge found, with Board concurrence, that the respondent violated Section 8(a)(1) and (5) of the Act by refusing to recognize and bargain with United Industry Workers Local 424, and violated Section 8(a)(1) and (3) by refusing to reinstate employees who engaged in a strike upon their unconditional offer to return to work. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by United Industry Workers Local 424; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Brooklyn, Sept. 30, Oct. 1-2, 1996. Decision issued by Adm. Law Judge Raymond P. Green, Jan. 24, 1997.

* * *

Retlaw Broadcasting Co., a subsidiary of Retlaw Enterprises, Inc. d/b/a KIMA-TV (19-CA-24444; 324 NLRB No. 174) Yakima, Wash. Nov. 7, 1997. The Board found that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet and bargain collectively with Federation of Television & Radio Artists Seattle Local, the exclusive representative of all news department employees, operation/programming department employees, and technical/engineering department employees working at the respondent's KIMA television station. The Board affirmed the administrative law judge's recommendation and ordered the respondent to cease and desist from engaging in such unlawful conduct and, on request, to bargain collectively with the union. The Board found, contrary to the judge, that the respondent should not additionally be required to reimburse the General Counsel and the union for the costs incurred in the investigation, preparation, presentation, and conduct of this case. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Federation of Television & Radio Artists Seattle Local; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Yakima on Sept. 17, 1996. Adm. Law Judge Frederick C. Herzog issued his decision May 20, 1997.

* * *

Norris Electric Corp. (10-CA-29976, 30231; 324 NLRB No. 178) Louisville, Tenn. Nov. 7, 1997. The Board found, as did the administrative law judge, that the respondent violated Section 8(a)(1) of the Act when in December 1996 its supervisor and agent instructed an employee not to discuss Electrical Workers IBEW Local 760 or the employees' union membership at one of its jobsites. The judge found, with Board approval, that the respondent did not violate the Act when on or about December 1996 it failed to hire job applicants Danny Allison and Ricky Brooks. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers IBEW Local 760; complaint alleged violation of Section 8(a)(1). Hearing at Knoxville on July 11, 1997. Adm. Law Judge William N. Cates issued his decision July 30, 1997.

* * *

Operating Engineers Local 3 (37-CA-4224; 324 NLRB No. 179) Honolulu, Hawaii and Alameda, Calif. Nov. 7, 1997. The Board affirmed the administrative law judge's findings that the respondent violated Section 8(a)(3) and (1) of the Act by discharging Katherine Bellinger because of her protected concerted activities in joining and assisting Office and Professional Employees Local 3, and making inquiries about a pay raise granted to clericals working at the respondent's Alameda office and its application to herself and other clericals working at the Honolulu office. The union contended that Bellinger, an officer manager, was a statutory supervisor; and that it discharged her when her boss was terminated in accordance with past practice and because of her poor job performance. In affirming the judge's finding that Bellinger's activity was concerted within the meaning of the Act, Chairman Gould declines to rely on, and questions the continuing vitality of, Meyers Industries. The Chairman also notes that he separately concurred in KNTV, Inc., 319 NLRB 447, 454 (1995), also cited by the judge. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Katherine Bellinger, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Honolulu, Feb. 25-26, 1997. Adm. Law Judge Michael D. Stevenson issued his decision July 22, 1997.

* * *

McDonnell Douglas Corp.; et al. (21-CA-27479; 324 NLRB No. 183) Huntington Beach, Calif. Nov. 7, 1997. On remand from the U.S. Court of Appeals for the D.C. Circuit, the Board decided to hold this case in abeyance, and defer consideration of the unfair labor practice issues to the parties' contractual grievance-arbitration procedure. Member Fox did not participate in the decision on the merits. The Board had found in a 1993 decision and order that the respondent violated Section 8(a)(5) and (1) of the Act by unilaterally removing bargaining unit employees from the unit on their change of assignment from one to another of the respondent's component companies, returning them to the unit for approximately 5 days, and then again removing them from the unit. 312 NLRB 373. In this supplemental decision, the Board dismissed the complaint, rescinded the 1993 order, and granted the respondent's first affirmative defense in its answer to the extent that it asserts that the complaint allegation should be deferred to the grievance and arbitration provisions of the parties' collective-bargaining agreement. The Board retained jurisdiction of this proceeding for the limited purpose of entertaining an appropriate and timely motion that either the dispute has not, with reasonable promptness, been amicably resolved in the grievance procedure or submitted promptly to arbitration, or that the grievance or arbitration procedures have not been fair and regular or have reached a result that is repugnant to the Act. [TEXT] [PDF]

(Chairman Gould and Member Higgins participated.)

* * *

Unbelievable, Inc. d/b/a Frontier Hotel and Casino (28-CA-12473; 324 NLRB No. 186) Las Vegas, Nev. Nov. 7, 1997. Chairman Gould and Member Fox concluded, contrary to the administrative law judge, that the complaint is not barred under Peyton Packing, 129 NLRB 1358 (1961) or Jefferson Chemical Co., Inc., 200 NLRB 992 (1972), and, accordingly, remanded the proceeding to the judge to decide the case on its merits. Member Higgins concurred in remanding this case to the judge. See his dissent in Cresleigh Management, Inc., 324 NLRB No. 124. The complaint alleges that the respondent violated Section 8(a)(1) of the Act by prohibiting certain employees, alleged to be unfair labor practice strikers, from handbilling at the entrances to the respondent's premises on or about April 22, 1994. The judge dismissed the complaint on the grounds of impermissible piecemeal litigation, finding that, at the time the instant complaint issued, a proceeding then pending before a different administrative law judge included allegations that the respondent's employees had been engaged in an unfair labor practice strike. (Frontier Hotel & Casino (Frontier III), 323 NLRB No. 149 (May 30, 1997)) Thus, the judge found that the complaint in this case was sufficiently related to the litigation in Frontier III and that its litigation in a separate proceeding was barred. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Local Joint Executive Board of Las Vegas Culinary Workers Local 226 and Hotel and Restaurant Employees Local 165; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Las Vegas, Oct. 18-19, 1994. Adm. Law Judge Clifford H. Anderson issued his decision Jan. 27, 1997.

* * *

Roll and Hold Warehouse and Distribution Corp. (13-CA-33306; 325 NLRB No. 1) Gary, Ind. November 8, 1997. The Board, reversing the administrative law judge, held that the respondent's unilateral implementation of a written point system attendance policy was a violation of the Act. A majority of Chairman Gould and Member Fox agreed with the General Counsel's contention that "the plan was presented as a fait accompli, precluding the possibility of meaningful bargaining, and that therefore the union had no reason to request bargaining." [TEXT] [PDF]

In dissent, Member Higgins agreed with the judge that the union had ample opportunity to request bargaining on this subject and never made that request.

On a separate issue, the Board adopted the judge's finding that the respondent had unlawfully removed a union newsletter from a bulletin board because it objected to the content and threatened to retaliate against employees because the union filed a complaint with a state OSHA agency.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Steelworkers Subdistrict 1; complaint alleged violation of Section 8(a)(1). Hearing at Chicago, Ill., Feb. 12 and 13, 1996. Adm. Law Judge Thomas R. Wilks issued his decision on May 10, 1996.

* * *

Delaware Racing Assn. d/b/a Delaware Park (20-RC-17237; 325 NLRB No. 12) Wilmington, Del. Nov. 8, 1997. The Board upheld the Regional Director's direction of an election in a unit of employees who perform duties exclusively related to a slot machine operation at a racetrack. The employer had contended that because of its involvement in the horseracing industry, the Board should decline jurisdiction. However, the majority of Members Fox and Higgins determined "the racetrack was dependent upon the casino, not the other way around. Thus, the casino is not an adjunct of the racing operation." [TEXT] [PDF]

In a concurring opinion, Chairman Gould said the Board's 1973 rule in which it declined to assert jurisdiction in the horseracing industry should be revoked due to changing circumstances in the industry. He pointed out that employment today at many racetracks is not "sporadic or unstable," that horseracing was "no longer, if ever it was, a local business," and it is an industry with a major impact on commerce.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Cadbury Beverages, Inc. (3-CA-19380, 19597; 324 NLRB No. 185) Williamson, N.Y. Nov. 7, 1997. Affirming the administrative law judge, the Board held that the respondent's firing of union activist Matzan for taking time off for "personal business" to attend an arbitration hearing was unlawful. The majority of Chairman Gould and Member Fox pointed out the company's position on allowing Matzan to take time off changed after learning the purpose of taking the leave and that "such a reversal of position clearly evidences Respondent's animus toward Matzan's protected activities and its retaliatory intent." [TEXT] [PDF]

In dissent, Member Higgins said:

The orders that he stay at work were issued before the Respondent knew that Matzan wanted to go to the arbitration. The orders were placed to Matzan before he walked out the door. Matzan ignored all of this, and proceeded to the arbitration proceeding, where his attendance was not necessary.

In sum, Matzan was properly discharged for insubordination, rather than being improperly discharged in retaliation for his desire to go to the arbitration.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Eugene A. Matzan, an individual; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Rochester, July 1-2, 1996. Adm. Law Judge Jesse Kleiman issued his decision on Feb. 11, 1997.

* * *

Jo-Del, Inc. (9-CA-34160, et al.; 324 NLRB No. 187) Huntington, W.Va. Nov. 8, 1997. Having agreed with the administrative law judge that employees Rick Long and Andrew Raike were unfair labor practice strikers, the Board modified the judge's order to require that the respondent offer them reinstatement upon their unconditional offer to return to work. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Tri-State Building and Construction Trades Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Catlettsburg, Ky. on May 6 and 7, 1997. Administrative Law Judge George Carson II issued his decision on July 31, 1997.

* * *

West Texas Hotels, Inc., d/b/a Midland Hilton and Towers, a subsidiary of Medallion Hotels, Inc. (16-CA-17901; 324 NLRB No. 173) Midland, Tex. Nov. 7, 1997. Upholding the administrative law judge, the Board held that the respondent unlawfully discharged employee Delma Nunez for engaging in protected concerted activity. She had conveyed to two management officials concerns expressed by several employees regarding the possible detrimental impact of the appointment of a husband-wife management Team on the respondent's "open door" policy. "Contrary to the respondent's contention, an employee need not be expressly 'appointed' or 'nominated' as spokesperson in order for his or her actions to be found concerted," the Board stated. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Delma Nunez, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Odessa, Tex. on Dec. 5, 1996. Administrative Law Judge William N. Cates issued his decision on Dec. 27, 1996.

* * *

National Steel and Shipbuilding Co. (31-CA-21861, et al.; 324 NLRB No. 155) San Diego, Calif. Nov. 7, 1997. Affirming the administrative law judge's recommendation, the Board dismissed a complaint alleging that the respondent engaged in bad-faith bargaining with seven unions representing its shipyard employees by presenting and insisting on regressive union-security proposals; and by bargaining to impasse on a permissive subject. The Board, having agreed with the judge that the respondent did not engage in bad-faith bargaining, found it unnecessary to pass on the respondent's cross-exceptions asserting that it complied with a June 1995 settlement agreement, and that the complaint allegations are barred by Section 10(b) of the Act. Chairman Gould did not pass on whether any of the respondent's proposals, if agreed to, would have resulted in a lawful union-security clause. See his dissenting opinion in Teamsters Local 443 (Connecticut Limousine Service), 324 NLRB No. 105 (Oct. 2, 1997), and his concurring opinion in Monson Trucking, 324 NLRB No. 149 (Oct. 31, 1997). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers IBEW Local 569, et al.; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Diego on various dates in May 1996. Adm. Law Judge Mary Miller Cracraft issued her decision Dec. 2, 1996.

* * *

Wallace International de Puerto Rico, Inc. (24-CA-7424; 324 NLRB No. 156) San German, P.R. Nov. 7, 1997. The Board upheld the administrative law judge's conclusion that the employer discharged Eddie Hernandez because of his activities for Congreso de Uniones Industriales de Puerto Rico in violation of Section 8(a)(3) and (1) of the Act rather than for multiple disciplinary infractions as the respondent claimed. Members Fox and Higgins substituted a narrow cease-and-desist order for the judge's recommended broad order. Chairman Gould, concurring, noted that Hernandez is not a "model employee" and that an unlawfully discharged employee's conduct "does and should affect the remedy." The Chairman concluded that the Board's traditional remedies are appropriate in this case given the employee's conduct and the employer's treatment of other similarly situated employees. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Congreso de Uniones Industriales de Puerto Rico; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Juan. Adm. Law Judge James L. Rose issued his decision June 18, 1997.

* * *

LeSaint Logistics, Inc. and CBS Personnel Services, LLC, an Ohio Limited Liability Co. d/b/a Employee Management Services (9-CA-34431-1, -2; 324 NLRB No. 157) Trenton, Ohio Nov. 7, 1997. The administrative law judge found, and the Board agreed, that LeSaint Logistics, Inc. (LLI) violated Section 8(a)(1) of the Act by granting a wage increase to dissuade employees from supporting the Auto Workers International; and violated Section 8(a)(3) and (1) by extending the probationary period of Charles Barrett and thereafter discharging Barrett and fellow employee Michael Barker because of their union activities. No exceptions were filed to the judge's finding that Employee Management Services (EMS) is not a joint employer of LLI and is not liable for any of the unfair labor practices committed by LLI. The Board modified the judge's recommended order by adding a provision requiring LLI to rescind its unlawful rule prohibiting employees from discussing their wages. [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). Hearing at Cincinnati, April 7-8, 1997. Adm. Law Judge William G. Kocol issued his decision June 18, 1997.

* * *

Dubovsky and Sons, Inc. (29-RC-8806, 29-RD-859; 324 NLRB No. 164) Glendale, N.Y. Nov. 7, 1997. The Board certified Teamsters Local 807 as the exclusive representative of all grocery warehouse employees and drivers working at the employer's Glendale, New York location. The Board, like the hearing officer, sustained the employer's objection alleging that Teamsters Local 807 engaged in improper electioneering through the conduct of Albert Ford (the petitioner in Case 29-RD-859 and the union election observer in Case 29-RC-8806) and the conduct of others. The Board agreed with the hearing officer that none of the alleged objectionable conduct, whether considered individually or cumulatively, impaired employee free choice under the third-party standard, but it disagreed with her application of that standard to Ford's conduct. Ford, the Board found, is subject to its standard for evaluating allegedly objectionable conduct by parties to the election. [TEXT] [PDF]

The tally of ballots for the election held on June 5 and 6, 1997 shows 46 for Teamsters Local 807, no votes for the intervenor (Metal Polishers Local 8-A-28A), and 1 vote against the participating labor organizations, with 2 challenged ballots, an insufficient number to affect the results.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Teamsters Local 439 (University of the Pacific) (32-CB-4602, 4604; 324 NLRB No. 168) Stockton, Calif. Nov. 7, 1997. The Board, in agreeing with the administrative law judge that the union violated Section 8(b)(1)(A) of the Act by disciplining employee-member Luis Rojas, relied on the fact that Rojas' duties as a leadperson required him, among other things, to report any work rule infractions to the employer and the union's trying and fining Rojas for this affected his employment status. The Board modified the judge's order to make clear that the make-whole remedy includes any lost wages that Rojas may have incurred in defending himself before the union's executive board and the Joint Council of Teamsters Local 38. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Luis Rojas, an individual and the University of the Pacific; complaint alleged violation of Section 8(b)(1)(A). Hearing at Oakland on Jan. 28, 1997. Adm. Law Judge William L. Schmidt issued his decision April 28, 1997.

* * *

Sykel Enterprises, Inc. (2-CA-29163; 324 NLRB No. 171) New York, N.Y. Nov. 7, 1997. The Board found that Teamsters Local 819 did not waive its right to bargain over the issue of Christmas bonuses and that the employer violated Section 8(a)(5) of the Act when it failed to pay a Christmas bonus to its employees in December 1995, as it had done the previous 4 years. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 819; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on Feb. 27, 1997. Adm. Law Judge Joel P. Biblowitz issued his decision April 29, 1997.

* * *

Elite Limousine Plus, Inc. ( 29-RC-8637; 324 NLRB No. 182) Long Island City, N.Y. Nov. 6, 1997. The Board affirmed the Regional Director's Decision and direction of election that found that the employer's drivers are employees within the meaning of Section 2(3) of the Act, and not independent contractors. In addition to the reasons stated in the Regional Director's decision, the Board relied on certain documentary evidence that the employer retains control over most of the franchises it issues and that the level of entreprenurial activity is insubstantial. (The Limousine Drivers' Union is involved in this proceeding.) [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Matthews Readymix, Inc. (20-CA-24698-2; 324 NLRB No. 152) Gridley, Calif. Nov. 7, 1997. The administrative law judge concluded that the respondent violated Section 8(a)(1) of the Act by interrogating strike replacement employees with questions about union membership on a personnel form and by soliciting an employee both to sign a decertification petition and to encourage other employees to sign similar petitions. The judge also concluded, however, that the respondent's withdrawal of recognition from the union and its subsequent failure and refusal to bargain was lawful. This conclusion was based on the judge's finding that the respondent had a good-faith doubt of the union's continuing majority status, based on decertification petitions signed by a majority of unit employees. The Board agreed with the judge that the questions pertaining to union membership on the personnel form amounted to unlawful interrogation in violation of Section 8(a)(1). However, a Board majority of Chairman Gould and Member Fox concluded that the decertification petitions were tainted by the respondent's unlawful conduct. Thus, the Board concluded, the respondent violated Section 8(a)(5) by withdrawing recognition from the union, by unilaterally changing terms and conditions of employment, and by failing to furnish requested information to the union. [TEXT] [PDF]

Dissenting, in part, Member Higgins agrees that the respondent's personnel form constituted an unlawful interrogation of strike replacements. However, he did not agree "that there was a causal nexus between the violation and the decision of the replacement employee[s] to seek to decertify the union."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 137; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Marrysville, Calif., April 29-30, 1993. Decision issued by Adm. Law Judge Gerald A. Wacknov, Nov. 3, 1993.

* * *

CPS Chemical Company, Inc. (22-CA-20769; 324 NLRB No. 154) Old Bridge, N.J. Nov. 7, 1997. The judge found, with Board approval, that the respondent violated Section 8(a)(1) and (5) of the Act when it refused to recognize Oil, Chemical and Atomic Workers Local 8-397 after the members of the employees independent local union, the CPS Plant Employees Association, voted to affiliate with Local 8-397. For reasons outlined in its decision, the Board agreed with the judge's finding that the respondent failed to demonstrate either that the affiliation between the Association and Local 8-397 was not carried out with adequate procedural safeguards or that it resulted in such dramatic organizational changes as to raise a question concerning representation. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Oil, Chemical and Atomic Workers Local 8-397; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, Feb. 5-7, 1996. Decision issued by Adm. Law Judge James F. Morton, June 25, 1996.

* * *

Deleet Merchandising Corp. (22-CA-20272 and 22-CB-7094; 324 NLRB No. 165) Newark, N.J. Nov. 7, 1997. The administrative law judge found, with Board approval, that by terminating the employment of Jesse Roberts in response to an unlawful union request, respondent Deleet violated Section 8(a)(1) and (3). In affirming this finding, the Board rejected the respondent's argument that the collective-bargaining agreement supports its position that the Nov. 1994 offer was a valid reinstatement offer. The Board also upheld the judge's finding that Teamsters Local 807 violated Section 8(b)(1)(A) and 8(b)(2) by requesting that Deleet discharge Roberts because of his union affiliation and for reasons other than his failure to tender uniformly required initiation fees and dues. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Jesse Roberts, an individual; complaint alleged violation of Section 8(a)(1) and (5), and Section 8(b)(1)(A) and 8(b)(2). Hearing at Newark, March 10,1997. Decision issued by Adm. Law Judge D. Barry Morris, June 2, 1997.

* * *

Las Vegas Sands, Inc., Sands Hotel and Casino (28-CA-13583, et al.; 324 NLRB No. 169) Las Vegas, Nev. Nov. 7, 1997. The administrative law judge found, and the Board agreed, that the respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to execute the memoranda of agreement between itself and Electrical Workers IBEW Local 357, between itself and Painters Local 159, and between itself and Carpenters Local 1780. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Painters Local 159, Electrical Workers IBEW Local 357, and Carpenters Local 1780; complaints alleged violations of Section 8(a)(1) and (5). Hearing at Las Vegas, Oct. 31 and Nov. 1, 1996, and Feb. 13-14, 1997. Decision issued by Adm. Law Judge Burton Litvak, July 2, 1997.

* * *

Kentucky General, Inc. d/b/a Norman King Electric (25-CA-23407, et al.; 324 NLRB No. 166) Owensboro, Ky. Nov. 7, 1997. The Board adopted the administrative law judge's findings that the respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire or consider for employment six applicants because of their union affiliations. The Board also adopted the judge's finding that the respondent unlawfully laid off Robert McBride and Thaddeus McCormic in retaliation for picketing, union activity, and other protected concerted activities in violation of Section 8(a)(3) and (1), and interrogated employees about their protected activities in violation of Section 8(a)(1). The judge's order was modified by the Board to require that the respondent offer McBride and McCormic reinstatement. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers IBEW Local 1701; complaints alleged violations of Section 8(a)(1) and (3). Hearing at Owensboro, Dec. 9 & 10, 1996. Decision issued by Adm. Law Judge Richard H. Beddow, Jr., April 7, 1997.

* * *

Teamsters Local 738 (E. J. Brach Corp.) (13-CB-14124; 324 NLRB No. 180) Chicago, Ill. Nov. 7, 1997. The administrative law judge dismissed the allegation that the respondent violated Section 8(b)(1)(A) of the Act by failing to advise Charging Party Ivory Pearson and other newly-hired unit employees subject to a union-security clause of the rights accorded them by Communications Workers of America v. Beck, 487 U.S. 735 (1988). In addressing the Beck notice allegation, the judge held that "[a]s the party asserting the Union has failed to comply with Beck, the General Counsel bears the burden of coming forward with proof of a diversion of nonmember dues to nonrepresentational activities." Because the judge found no evidence that the respondent allocated dues for any nonrepresentational purposes, she recommended dismissing the allegation. Subsequent to the judge's decision, the Board addressed numerous Beck-related issues in California Saw & Knife Works, 320 NLRB 224 (1995). Applying California Saw to the issue here, the Board found that, contrary to the judge's analysis, "the Beck notice obligation defined in California Saw is not contingent upon a showing that some nonmember dues are being used for nonrepresentational purposes. *** In sum, at any given point in time, the policy of the union regarding use of dues and fees for other than representational purposes is irrelevant to the usefulness of the initial Beck and General Motors notice to an employee making an initial election between member or nonmember status and, if the employee elects nonmember status, between objector or full-dues paying status." The Board continued: [TEXT] [PDF]

"Consequently, the General Counsel need not prove a diversion of nonmember dues to nonrepresentational activities in order to prove a union's unlawful failure to provide initial notice of Beck rights to nonmember unit employees. In this case, it is undisputed that the Respondent failed to give sufficient notice, as defined in California Saw, before seeking to obligate nonmember unit employees to pay fees and dues under a union-security clause. We therefore find that the Respondent violated Section 8(b)(1)(A) of the Act."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Ivory Pearson, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing May 5, 1994 . Decision issued by Adm. Law Judge Arline Pacht, July 26, 1995.

* * *

Monson Trucking, Inc. and Teamsters Local 160 (18-CA-11466, 18-CB-3023; 324 NLRB No. 149) Red Wing, Minn. Oct. 31, 1997. The Board considered the General Counsel's exceptions to the administrative law judge's dismissal of the consolidated complaint. Members Fox and Higgins held that the respondent union violated Section 8(b)(1)(A) and (2) of the Act by attempting to cause and causing Monson to discharge Anderson, purportedly for nonpayment of the required union initiation fees and dues; and violated Section 8(b)(1)(A) by failing to provide Anderson notice of his right under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to paying dues and fees for union activities not germane to collective-bargaining. Members Fox and Higgins found that although Monson's initial discharge of Anderson was lawful because it "simply constituted the required compliance with the union-security clause negotiated by the parties," Monson violated Section 8(a)(3) and (1) by failing to rescind Anderson's discharge upon learning from the union that he had satisfied the union's demand for payment and subsequently reinstating him to a position of lower seniority, pay, and benefits. [TEXT] [PDF]

Chairman Gould, concurring, stated in explaining why he wrote separately:

I write separately to again state my view that a collective-bargaining agreement containing a union-security clause which compels 'membership' or 'membership in good standing' as a condition of employment is facially invalid under the National Labor Relations Act. In order for such a clause to be valid, the collective-bargaining agreement must define membership as only the obligations to pay periodic dues and initiation fees related to representational costs. In some respects, I am in accord with the Court of Appeals for the Sixth Circuit in Buzenius v. NLRB. To the extent, however, the court relied on Pattern Makers League v. NLRB, and states that '[o]ne of the Act's core policies is that of voluntary unionism,' I disagree and would reverse Pattern Makers. [Buzenius, slip op. at 5 (citing Pattern Makers, 473 U.S. 95, 104-106 (1985)).]

In response, Members Fox and Higgins wrote:

There is no allegation that the union-security clause was unlawful, and the legality of the clause was therefore not litigated or even addressed by the judge or by the parties at any time during these proceedings. Nevertheless, our concurring colleague has used the occasion of our issuance of this decision to rule on the facial validity of this clause and all other similarly worded clauses. See also his dissenting opinion in Teamsters Local 443 (Connecticut Limousine Service), 324 NLRB No. 105, slip op. at 7, fn. 1 (Oct. 2, 1997). Accordingly, we decline to pass on the issues which our colleague decides in his concurrence until they are presented for decision in an appropriate adjudicatory or rulemaking proceeding.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Calvin Anderson, an individual; complaint alleged violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2). Hearing at Minneapolis on April 17, 1991. Adm. Law Judge David G. Heilbrun issued his decision March 18, 1992.

* * *

Mine Workers District 17 (Joshua Industries, Inc.) (9-CB-7767, 7805; 324 NLRB No. 146) Logan, W. Va. Oct. 30, 1997. Affirming the administrative law judge's supplemental decision, the Board ordered the union to pay Phillip Lee White the sum of $22,007.96 for causing Joshua to lay him off in violation of Section 8(b)(1)(A) and (2) of the Act. The Board ordered in 1994 that the union, jointly and severally with Joshua, make White whole for any loss of earnings he incurred as a result of the discrimination against him. 315 NLRB 1052. The U.S. Court of Appeals for the Fourth Circuit enforced the Board's order on May 13, 1996. In a 1994 supplemental decision and order, enforced by the Fourth Circuit on June 5, 1995, the Board found that Joshua owed White $25,8741.06 in backpay. 314 NLRB No. 26. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Hearing at Charleston on April 28, 1997. Adm. Law Judge William G. Kocol issued his supplemental decision June 25, 1997.

* * *

RB Associates, Inc. (5-RC-14470; 324 NLRB No. 138) Wash., D.C. Oct. 30, 1997. The Board affirmed the Regional Director's findings that the single-facility unit petitioned for by Operating Engineers Local 99-99A is presumptively appropriate; that the employer failed to meet its burden to overcome the presumption; and that the single-location unit of maintenance employees and painters at the employer's Washington Plaza hotel, excluding those roving/pool employees not regularly assigned to the Washington Plaza, is an appropriate unit. The Board directed that the ballots of pool engineers Anderson and Renderos, who were excluded from the unit by the Regional Director, be handled as challenged ballots because it could not determine from the record whether they are pool employees regularly assigned to the Washington Plaza and whether they have a community of interest with the other unit members. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Smith and Johnson Construction Company (12-CA-16987; 324 NLRB No. 153) Cape Canaveral, Fla. Oct. 31, 1997. The Board held, in agreement with the administrative law judge, that the respondent at its ground maintenance operations at Cape Canaveral, is a successor to U.S. Contracting Company that violated Section 8(a)(5) and (1) of the Act since on and after March 1, 1995 by refusing to recognize and bargain with Transport Workers Local 525; that violated Section 8(a)(3) and (1) by refusing to hire employees because of their union affiliation; and that violated Section 8(a)(1) by various acts including threats and interrogation. [TEXT] [PDF]

Chairman Gould and Member Higgins denied the General Counsel's exception to the judge's failure to order that the respondent rescind any unilateral changes it made and to make employees whole for any economic loss they suffered as a result of such changes "because, as the General Counsel admitted, there was no evidence that the respondent changed terms and conditions of employment from those that were in effect at the time that U.S. Contracting ceased operation." Member Fox, dissenting, would modify the judge's order, stating that: "At the hearing establishing a successor's bargaining obligation, the General Counsel is required to introduce evidence of unilateral changes only where he has alleged the unilateral changes as separate unfair labor practices in addition to the successor's general obligation to recognize and bargain with the union. The absence of such complaint allegations or evidence introduced at the hearing, however, in no way affects the successor's legal obligation to restore the status quo ante . . . or the Board's obligation to include such a provision in its order."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Transport Workers Local 525; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Rockledge, Sept. 21, 22, and 26, 1995. Adm. Law Judge William N. Cates issued his decision March 12, 1996.

* * *

Louis A. Weiss Memorial Hospital (13-CA-32785; 324 NLRB No. 150) Chicago, Ill. Oct. 31, 1997. The administrative law judge found, with Board approval, that the respondent discharged Barbara Zimmerman in violation of Section 8(a)(3) and (1) of the Act because of her activities for Teamsters Local 743, and by telling an employee not to discuss the union with other employees in violation of Section 8(a)(1). Allegations that the employer violated Section 8(a)(1) by threatening employees that other employees were selected for discharge because of their union activities were dismissed. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Barbara Zimmerman, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago, June 12-14, 1995. Adm. Law Judge Nancy M. Sherman issued her decision Jan. 16, 1997.

* * *

Stannah Stairlifts, Inc. (1-CA-33867, 1-RC-20418; 324 NLRB No. 141) Hopkinton, Mass. Oct. 31, 1997. The administrative law judge ruled on the unfair labor practice allegations and a challenged ballot, but he did not address the employer's "Objections and Additional Objection" to the representation election, which were consolidated with the unfair labor practice proceeding. The General Counsel and the respondent filed a joint motion for reconsideration and clarification of the judge's decision. The Board ruled to sever the representation case and remanded the proceeding to the judge to address the election objections. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Elevator Constructors Local 4; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Boston, June 19-20, 1996. Decision issued by Adm. Law Judge Robert T. Wallace, June 13, 1997.

* * *

Pioneer Hotel, Inc. d/b/a/ Pioneer Hotel & Gambling Hall (28-CA-13300, 13390; 324 NLRB No. 148) Laughlin, Nev. Oct. 31, 1997. The administrative law judge found, with Board approval, that the respondent violated Section 8(a)(1) of the Act by directing employees to remove union buttons, terminating supervisor Tom Grace for refusing to commit an unfair labor practice, interrogating employees about union activities, and denying an employee access to the employee dining room; and violated Section 8(a)(1) by reducing the hours of Tony Zabala and James Guirey and subsequently laying them off, and suspending Zabala for 3 days. The judge rejected the respondent's contention that Section 10(b) barred the General Counsel's amendment to the complaint which added the allegation that the respondent unlawfully discharged Grace. The Board on appeal affirmed the judge's ruling that the complaint amendment was not barred by Section 10(b), based on the principle that "a sufficient relation between the charge and complaint [exists] in circumstances involving 'acts that are part of the same course of conduct, such as a single campaign against a union,' NLRB v. Central Power & Light Co., 425 F.2d 1318, 1321 (5th Cir. 1970), and acts that are all 'part of an overall plan to resist organization.' NLRB v. Braswell Motor Freight Lines, 486 F.2d 743, 746 (7th Cir. 1973)." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Hotel and Restaurant Employees Locals 226 and 165; complaints alleged violation of Section 8(a)(1) and (3). Hearing at Las Vegas, Feb. 13-16 and May 28, 1996. Decision issued by Adm. Law Judge Michael D. Stevenson, Sept. 17, 1996.

* * *

New York University Medical Center (2-CA-28305; 324 NLRB No. 139) New York, N.Y. Oct. 31, 1997. Affirming the administrative law judge, the Board ruled that the respondent violated Section 8(a)(1) of the Act by impliedly threatening its employees, nontenured track faculty members of the respondent's School of Medicine, with cutbacks, layoffs, and other consequences if they continued to protest the announced discontinuance of the respondent's policy and practice of allowing them to work at Belleview Hospital from 9 a.m. to 3 p.m. with credit for on-call or off-site research duties; and violated Section 8(a)(1)and (3) by terminating 6 employees because they protested the changes, joined to support the union, and engaged in other concerted activities. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Association of Staff Psychiatrists; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, March 18-April 1, 1996. Decision issued by Adm. Law Judge Jesse Kleiman, April 21, 1997.

* * *

Waymouth Farms, Inc. (18-CA-12766, 12891; 324 NLRB No. 151) New Hope, Minn. Oct. 31, 1997. The Board agreed with the administrative law judge that the respondent refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act by misrepresenting to the union its intentions and plans regarding relocating its facility located in Plymouth, Minn. The Board, however, modified the judge's recommended remedy to require the respondent to bargain in good faith with the union at the respondent's New Hope facility, and to require that it do so for a reasonable period of time before it may question the union's majority status. In so doing, the Board stated that the issuance of a bargaining order to remedy the respondent's unlawful conduct is not inconsistent with H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970). It stated: "Our conclusion that a meaningful remedy here requires a bargaining order is simply not the kind of order 'compelling a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement' that the court condemned in H.K. Porter, 397 U.S. at 102. To the contrary, our decision here, to recognize the waiver of the employees' statutory right to continued representation only on the condition that the Respondent upholds its obligation to bargain with the employees' representative, is in fundamental support of the principles of good-faith bargaining by which agreements are mutually enforceable and not subject to unilateral modification." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Local 471; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Minneapolis, March 22-23, 1994. Decision issued by Adm. Law Judge Frederick C. Herzog, April 5, 1995.

* * *

M. J. Mechanical Services, Inc. (3-CA-18626, et al.; 324 NLRB No. 130) Tonawanda and Buffalo, N.Y. Oct. 24, 1997. The issues before the Board arose from the respondent's response to the union's attempts to organize employees by placing union members on the job to engage in "salting" activities. Contrary to the judge, the Board found that the union's activities were protected by Section 7 of the Act and that the respondent violated the Act by, inter alia, interrogating, threatening, discharging and refusing to hire union members. [TEXT] [PDF]

Dissenting in part, Member Fox would find that the respondent violated Section 8(a)(3) and (1) by refusing to hire six applicants because of their failure to comply with a request that they travel to Buffalo for job interviews.

Member Higgins concurred in part and dissented in part. Concurring he agreed, inter alia, that the salting activities of Colon and Derleth were protected but did not pass on the issue of whether activities designed in part to provoke an unfair labor practice are protected by Section 7. Although Member Higgins agreed that the respondent violated Section 8(a)(3) by refusing to reinstate Colon, he did not pass on the issue of whether the strike by Colon and Derleth was an unfair labor practice strike. Dissenting, Member Higgins, citing Rossmore House, 269 NLRB 1176 (1984), would find that the questions directed toward Colon and Derleth concerning their union membership were not coercive. "The questions, as reasonably perceived, were aimed at ascertaining how Colon and Derleth, as union members, would protect themselves from union discipline, not whether they were, in fact, union members," he stated.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Sheet Metal Workers Local 46; complaint alleged violations of Section 8(a)(3) and (1). Hearing at Rochester, N.Y., March 6-10, and April 17, 1995. Decision issued by Adm. Law Judge Raymond P. Green, July 27, 1995.

* * *

Brown City Casting Co. d/b/a Yale Industries (7-RC-21004; 324 NLRB No. 137) Yale, Mich. Oct. 28, 1997. The tally of ballots for an election held March 7, 1997 showed 43 for and 58 against Teamsters Local 339, with 5 challenged ballots, an insufficient number to affect the results. The Board agreed with the hearing officer that the election should be set aside because the employer "failed to rebut the inference that the announcement of improved insurance benefits, which took place practically on the eve of the election, was objectionable." The Board directed that a second election be held. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Automotive, Petroleum & Allied Industries Employees Local 618 (Sears, Roebuck & Co.) (14-CB-7803; 324 NLRB No. 147) St. Louis, Mo. Oct. 29, 1997. The central question in this case is whether the respondent violated Section 8(b)(1)(A) by soliciting, maintaining, and enforcing contracts with individual employees under which the employees agree to pay "financial-core" fees to the union for the duration of the union's representation of the employees, or for the duration of their employment, whichever is shorter. The Board agreed with the administrative law judge that statements made to charging party Eric Becker by union employee Kim Miller concerning union dues, fees, membership and resignation violated Section 8(b)(1)(A) of the Act. Miller, the daughter of the union's chief executive officer, had at least apparent authority to speak for the union and thus acted as an agent of the union, according to the Board majority of Chairman Gould and Member Fox. [TEXT] [PDF]

The majority disagreed with the judge's finding that by soliciting, maintaining, and enforcing the financial-core agreements, the union also violated Section 8(b)(1)(A). In so finding, the judge rejected the General Counsel's contention that the agreements were not voluntarily obtained. He concluded, nevertheless, that the agreements were unlawful because they were not revocable by the employees after "a reasonable period of time." The Board stated: "We find that because the Act is not implicated under either Radio Officers or Allis-Chalmers and its progeny, and because the Charging Party freely and voluntarily chose to sign the financial-core agreement, and the agreement clearly states on its face that the payment of the financial-core dues was not related to union membership and would continue for the duration of the Charging Party's tenure at Sears or until the Union no longer represents him, the financial-core agreement does not violate Section 8(b)(1)(A) of the National Labor Relations Act in any way."

Member Higgins, dissenting, stated: "My colleagues conclude that the Respondent did not violate the Act by the aforementioned conduct. I agree with the judge that the conduct was unlawful. In my view, a provision which operates to waive, for a substantial and indefinite period, the Section 7 right to refrain from supporting the Union is not to be countenanced by the Act. * * * In sum, the Union has restricted indefinitely the employees' fundamental right to refrain from paying dues. It is contrary to the spirit of the statute and the general rule of contracts to require that agreements with no period of duration are to last forever. Rather, the proper test is one of reasonableness, and it is unreasonable to bind employees for their entire employment period in the unit."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Eric Becker, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at St. Louis, Oct. 14, 1992. Decision issued by Adm. Law Judge Irwin H. Socoloff, March 30, 1993.

* * *

Orange Blossom Manor, Inc. (12-RC-7995; 324 NLRB No. 134) Ft. Lauderdale, Fla. Oct. 27, 1997. The Board affirmed the hearing officer's recommendations to sustain the union's Objection 4 and to overrule the challenge to the ballot of Kathleen Morgan. The Board however reversed the hearing officer's finding and sustained the challenge to the ballot of Bernadette Morgan, concluding that she was an ineligible voter because she voluntarily resigned from her unit job before the date of the election. The hearing officer found that B. Morgan had requested a temporary leave of absence. [TEXT] [PDF]

The election held September 25, 1996 resulted in 26 for and 25 against UNITE, with 4 challenged ballots, a sufficient number to affect the outcome of the election. The parties stipulated that challenged voter Mike Sanchez was eligible to vote. In the absence of exceptions, the Board adopted, pro forma, the hearing officer's recommendations that the union's Objections 3 and 5 be overruled, that the employer's objections be overruled in their entirety, and that the challenge to the ballot of Francine Joseph be sustained. The Board remanded the proceeding to the Regional Director to open and count the ballots of Sanchez and K. Morgan and to issue a revised tally of ballots. If the revised tally shows that the union has received a majority of the votes cast, a certification of representative will issue. If the revised tally of ballots shows that a majority of the votes cast are against the union, the election will be set aside and a rerun election will be held.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

United States Service Industries, Inc. (5-CA-25403, et al.; 324 NLRB No. 132) Washington, D.C. Oct. 24, 1997. The Board affirmed the administrative law judge's findings that the respondent, a provider of janitorial services to offices and buildings in Washington, D.C., Maryland, and Virginia, violated the Act by discharging a union adherent, transferring eight returned strikers to less desirable jobs, threatening employees with job loss, and instructing employees wearing union T-shirts to take them off. The judge found, and the Board agreed, that employees Saturnina Contreras, Teresa Avalos, and Ricardo Ortiz were not constructively discharged, and that the relevant complaint allegations should be dismissed. The Board modified the judge's recommended Order and substituted broad cease-and-desist language, noting the employer's "proclivity to violate the Act" and "general disregard for its employees' fundamental statutory rights." [TEXT] [PDF]

The Board reversed the judge's finding that complaint paragraphs 5, 15, and 16 are time barred; the judge's dismissal of the complaint allegation that Milagros del Carmen Sorto was discriminatorily discharged; and the judge's denial of the General Counsel's motion to amend the complaint to allege that on or about August 11 and 14, 1995, the respondent issued written warnings to Ricardo Ortiz in violation of Section 8(a)(3) and (1). The Board remanded the allegations to the judge for findings on the merits. The Board also remanded allegations that on about May 31, 1995, the respondent discriminatorily issued a warning to Sorto, and that on about June 15, 1995, the respondent through manager Robin Allen told employees that they could not wear union buttons, because the judge made no credibility findings concerning the conflicting testimony or findings as to whether unfair labor practices were committed.

The Board severed to consider separately the General Counsel's request that the respondent's counsel, Joel I. Keiler, be sanctioned and disciplined for aggravated misconduct at the hearing.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Service Employees Local 82; complaint alleged violation of Section 8(a)(1) and 3). Hearing at Washington, D.C., June 17-21 and July 1-2 and 8, 1996. Adm. Law Judge Lowell Goerlich issued his decision Nov. 6, 1996.

* * *

United States Testing Company (22-CA-21101; 324 NLRB No. 136) Fairfield, N.J. Oct. 29, 1997. The administrative law judge found, and the Board agreed, that the respondent violated Section 8(a)(5) and (1) of the Act by failing to furnish the union with requested information concerning (a) the names of unit and nonunit employees and their dependents covered by the respondent's medical and dental plans, and (b) the claims submitted and paid by the respondent for each benefit during a certain time period; that the respondent violated Section 8(a)(5) and (1) by implementing changes in its employees' terms and conditions of employment at a time when no valid bargaining impasse existed; that a strike which began on October 19, 1995 was an unfair labor practice from its inception; and that the respondent violated Section 8(a)(3) and (1) by permanently replacing the unfair labor strikers and failing to reinstate them immediately upon their unconditional offer to return to work. [TEXT] [PDF]

The Board found distinguishable Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), cited by the respondent in arguing that its refusal to provide the claims information was based on privacy concerns. The Board found without merit the respondent's allegation that the union had engaged in dilatory tactics to avoid bargaining. And, the Board decided that the respondent failed to offer evidence that its financial situation was so dire that it either had to implement its final offer when it did or suffer financial ruin. See RBE Electronics of S.D., 320 NLRB 80 (1995).

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 1936; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Newark, May 13 and June 13, 1996. Adm. Law Judge Steven Davis issued his decision Oct. 21, 1996.

* * *

Service Employees Local 87 (Cresleigh Management, Inc.) (20-CC-3284, et al.; 324 NLRB No. 124) San Francisco, Calif. Oct. 20, 1997. The judge denied the respondent's motion to dismiss the instant complaints on the basis of Jefferson Chemical Co., 200 NLRB 992 (1972), and Peyton Packing Co., 129 NLRB 1358 (1961), and found that the issues in the instant cases are sufficiently unrelated to those in Case 20-CB-9949 so as to withstand the motion to dismiss. The respondent excepted to this finding. The Board majority of Chairman Gould and Member Fox found no merit to this exception. For reasons set out in its decision, the majority found "that the instant complaint cases involving unlawful picketing in violation of Section 8(b)(4)(i)(ii)(B) is not an attempt by the General Counsel to relitigate the allegations in Case 20-CB-9949 alleging improper union organizing and card solicitation by a supervisor in violation of Section 8(b)(1)(A) of the Act. Moreover, the mere common identity of the parties in Case 20-CB-9949 is insufficient to require consolidation here." [TEXT] [PDF]

Dissenting, Member Higgins "would not allow the General Counsel to 'piecemeal' litigate this case, in circumstances where the case clearly should have been consolidated with a prior case." Member Higgins stated that the principals of Peyton Packing and Jefferson Chemical "are as sound today as they were when they were originally pronounced 35 years ago. Indeed, at a time of severe budgetary constraint, the policy is even more relevant. Accordingly, one would hope for a strong reaffirmation of these principles. My colleagues have chosen not to reaffirm these principles. To the contrary, they reverse them, overruling at least two cases in the process. Since the policies are sound, and are particularly relevant today, I dissent."

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Cresleigh Management, Inc. and GMG Janitorial Maintenance, Inc.; complaints alleged violations of Section 8(b)(4)(B). Hearing at San Francisco, Oct. and Nov. 1995. Decision issued by Adm. Law Judge Clifford H. Anderson, May 3, 1996.

* * *

United States Postal Service (10-CA-29640(P); 324 NLRB No. 129) Memphis, Tenn. Oct. 21, 1997. The complaint alleged, on behalf of complaintant employee Janet Fulmer, that the United States Postal Service (USPS) violated Section 8(a)(1) of the Act when it ceased assigning Fulmer acting supervisor duties and imposed more onerous working conditions on employees Jackie Poteet and Carolyn Appling because they engaged in protected concerted activities. In its answer, USPS denied the allegations and affirmatively argued that the case be deferred for processing under the grievance-arbitration procedure of the collective-bargaining agreement between the USPS and the American Postal Workers Union. The USPS also filed a Motion for Summary Judgment with the Board, arguing that the allegations be deferred and that the complaint be dismissed consistent with the policies of Collyer Insulated Wire, 192 NLRB 837 (1971) and United Technologies, 268 NLRB 557 (1984). The General Counsel opposed the motion. The Board found that summary judgment was not appropriate and stated: "A precondition of Collyer deferral is that the charging party have the ability to obtain arbitral consideration of the grievance. Here, because the Union has steadfastly refused to process Fulmer's grievance to arbitration and there is no evidence or even a contention that this refusal was unlawful or motivated to avoid deferral, we find that deferral is not appropriate. Additionally, because there is a factual issue as to whether Poteet's and Appling's grievances are closely related to Fulmer's, we find that the complaint allegations as to these two employees likewise should not be deferred." Accordingly, the Board denied the Motion for Summary Judgment and remanded the proceeding to the Regional Director for further action. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Janet Fulmer, an individual; complaint alleged violation of Section 8(a)(1). Respondent filed motion for summary judgment April 7, 1997.

* * *

Electrical Workers IBEW Local 125 (Loy Clark Pipeline Co.) (36-CD-207, 209; 324 NLRB No. 133) Beaverton, Oreg. Oct. 22, 1997. In this Section 10(k) proceeding, Electrical Workers Local 125 is charged with violating Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing Loy Clark Pipeline Co. to assign certain work to employees it represents rather than to employees represented by the complaintant, Operating Engineers Local 701. Loy Clark also filed a charge alleging that Local 701 violated Section 8(b)(4)(D) by engaging in proscribed activity with an object of forcing Loy Clark to continue to assign certain work to employees represented by Local 701 rather than to employees represented by another union. The Board concluded that employees represented by Local 701 are entitled to perform the disputed work based on Loy Clark's assignment, preference, past practice, area practice, economy and efficiency of operations, and the parties' record statements essentially consenting to the Board entering an award of the work in this manner. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Patrick H. Dulin d/b/a Copies Care Plus (19-RC-13391; 324 NLRB No. 127) Fairbanks, Alaska Oct. 20, 1997. The Board certified Teamsters Local 959 as the exclusive representative of all sales employees and service technicians working for the employer at its Fairbanks, Alaska location. The tally of ballots for the election held May 30, 1997 shows 1 ballot for the union, 0 ballots against the union, and no challenged ballots. In affirming the hearing officer's recommendation that the employer's objections be overruled because the employer failed to show that the unit had been permanently reduced to one employee, the Board agreed with the hearing officer that in deciding whether a bargaining unit consists of only one employee, it is the permanent size of the unit that is controlling. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

CDR Manufacturing (9-CA-33316-1, -2, -3; 324 NLRB No. 122) Somerset, Ky. Oct. 21, 1997. Chairman Gould and Member Higgins affirmed the administrative law judge's conclusion that the respondent, through the conduct of one Kathy Facundo, violated Section 8(a)(1) of the Act. In doing so, the majority agreed with the judge that Facundo is an agent of the respondent and that employee Christy Randolph could reasonably believe that Facundo spoke and acted for management when she interrogated Randolph and made threats of job loss and plant closure. Chairman Gould found it unnecessary to pass on the finding that Facundo also is a supervisor. Although Member Higgins concluded that Facundo is a supervisor, he also concluded that, at the very least, she is reasonably perceived by employees to be an agent of the respondent. Member Fox, dissenting, would dismiss the unfair labor practice allegations based on Facundo's conduct because she would not find that the record supports the conclusion that Facundo is either a supervisor within the meaning of the Act or an agent of the respondent. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers IBEW; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Somerset, Jan. 24-26, 1996. Adm. Law Judge Martin J. Linsky issued his decision April 4, 1996.

* * *

Eastern Omni Constructors, Inc. (11-CA-16886; 324 NLRB No. 102) Greensboro, N.C. Oct. 7, 1997. The Board upheld the administrative law judge's findings that the employer violated Section 8(a)(3) and (1) of the Act by terminating the employment of striking employees Wacon Cottingham and Billy Forester because of their activities for Electrical Workers IBEW Local 342; that the employer violated Section 8(a)(1) by threatening that employees who handed out union literature on the job would be discharged and by maintaining and enforcing a rule prohibiting employees from placing any union stickers or decals on its hard hats; and that the strike engaged in by Cottingham and Forester was precipitated by the respondent's announcement of its unlawful rule. The Board said that it "recognize[d] the legitimacy of the Respondent's concern about some inflammatory decals (unrelated to union activities) that some employees had been wearing. We note, however, that the Respondent could have more narrowly, and lawfully, addressed this problem." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 342; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Greensboro, Dec. 18-19, 1996. Adm. Law Judge George Carson II issued his decision April 29, 1997.

* * *

Koronis Parts, Inc. (18-CA-13787, et al.; 324 NLRB No. 119) Paynesville, Minn. Oct. 10, 1997. The administrative law judge found, and the Board agreed, that the employer committed various unfair labor practices, including issuing disciplinary warnings to two leading union proponents, directing an employee not to discuss her wage rate with other employees, threatening plant closure if employees selected Teamsters Local 970, and increasing amounts awarded to employees as gift certificates and prizes at a company-sponsored picnic to discourage union support. Affirming the judge's recommended Remedy, the Board ordered, among other things, that the respondent remove from its "COMPANY POLICY" handbook, "Amended November 14, 1995," the bordered-portion of the "WAGES" section, which states that wages "are personal and confidential" and which "asks that wage discussions be limited between the employee and their supervisor, plant manager or Company owners only." The respondent was ordered to distribute to all employees copies of the handbook with the deleted language. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Local 970; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Minneapolis, April 17-19 and 22, 1996. Adm. Law Judge William J. Pannier III issued his decision Nov. 21, 1996.

* * *

Cable Car Advertisers, Inc. d/b/a Cable Car Charters (20-CA-25377, 25789; 324 NLRB No. 112) San Francisco, Calif. Oct. 15, 1997. The Board, in affirming the administrative law judge's recommendation to dismiss the complaint allegation that the employer unlawfully photographed and videotaped employees engaged in union handbilling, relied on his findings that: (1) handbillers had been observed obstructing access to the employer's ticket window and boarding its tour cars to approach customers who had already bought tickets, and (2) the respondent did not begin its surveillance until after it had received reports of such incidents. The Board found it unnecessary to decide whether the various types of conduct described in the judge's decision were unprotected or unlawful. The Board had remanded the proceeding to the judge in 1996 to make certain credibility determinations regarding the surveillance allegation in complaint paragraph 12 (322 NLRB 554). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Adm. Law Judge William L. Schmidt issued his supplemental decision June 24, 1997.

* * *

Electrical Workers IBEW Local 98 (Kastle Security Systems) (4-CD-950, 951; 324 NLRB No. 121) Philadelphia, Pa. Oct. 14, 1997. The Board awarded the installation of a security system at Three Parkway in Philadelphia, Pennsylvania to employees of Kastle Security Systems represented by Communications Workers Local 13552 rather than to those employees represented by Electrical Workers Local 98. The Board limited its award to the controversy at the jobsite that gave rise to this proceeding. The employer and CWA had sought a broad award applicable to all security system installation work performed by Kastle within the geographic area where the jurisdictions of the CWA and Local 98 coincide. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Service Employees Local 254 (Women and Infants Hospital) (1-CC-2497, 2523 and 1-CG-48; 324 NLRB No. 126) Boston, Mass. Oct. 15, 1997. The Board agreed with the administrative law judge that the respondent violated Section 8(b)(4)(ii)(B) of the Act by picketing and handbilling at the Women and Infants Hospital in Providence, Rhode Island and the Massachusetts Bay Community College campuses in Wellesley and Framingham, Massachusetts with an object of forcing the hospital and college to cease doing business with their cleaning contractors. In finding that the union's picketing of the hospital had an unlawful object, the Board relied on the admission by Union Business Agent Victor Lima that its purpose was to force the neutral hospital to cease doing business with the primary, Intercity Maintenance. Chairman Gould and Member Fox found it unnecessary to reach the judge's additional reliance on the evidentiary criteria set forth in Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950). Member Higgins would additionally rely on the judge's Moore Dry Dock analysis. [TEXT] [PDF]

In a reversal, the Board disagreed with the judge that the union's picketing and handbilling at the hospital also violated Section 8(b)(4)(i)(B). The Board found that the judge properly dismissed the 8(b)(4)(i)(B) allegation with respect to the picketing and handbilling at the community college in the absence of evidence that the conduct was designed to induce or encourage any neutral employer's employees to refuse to work. The same lack of evidence required dismissal of the 8(b)(4)(i)(B) allegation with respect to the union's picketing and handbilling at the hospital. The Board affirmed the judge's finding that the community college and its cleaning contractor, Aid Maintenance Co., Inc., do not constitute joint employers of employees who perform janitorial services at the college. The Board amended the judge's recommended Order to include a provision that orders the union to post a Spanish translation of the notice to members.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by the Women and Infants Hospital and Aid Maintenance Company; complaint alleged violation of Section 8(b)(4)(i) and (ii)(B) and Section 8(g). Hearing at Boston, Oct. 21-24, 1996. Adm. Law Judge Arthur J. Amchan issued his decision Feb. 12, 1997.

* * *

Northern Montana Health Care Center, a subsidiary of North Montana Health Care, Inc. (27-CA-13394; 324 NLRB No. 123) Havre, Mont. Oct. 17, 1997. The administrative law judge made the following findings with Board approval: (1) that the respondent, Northern Montana Health Care Center (Care Center), is the legal successor to the predecessor employer, Lutheran Home of the Good Shepherd (the Home), some of whose employees were represented by Food and Commercial Workers Local 8 until the Home's sale to the Care Center on August 31, 1994; (2) that the Care Center, Northern Montana Hospital (the Hospital), and their parent corporation, respondent North Montana Health Care, Inc. (the Corporation) constitute a single employer (the respondent); (3) that in early September 1994, the Care Center employed a representative complement of employees, a substantial majority of whom were formerly employed in the predecessor's unit; and (4) that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the union. [TEXT] [PDF]

The Board also agreed with the judge's finding that the dietary aides, maintenance workers, laundry workers, and housekeepers who regularly work at the Care Center are properly included in the appropriate bargaining unit. The Board found, contrary to the judge, that the licensed practical nurses formerly included in the predecessor employer's certified unit and currently employed at the Care Center are not supervisors within the meaning of Section 2(11) of the Act and that they should be included in the appropriate bargaining unit.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Food and Commercial Workers Local 8; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Havre, April 26-28, 1995. Adm. Law Judge Clifford H. Anderson issued his decision Sept. 20, 1995.

* * *

Amboy Care Center (22-CA-21802; 324 NLRB No. 110) Perth Amboy, N.J. Oct. 10, 1997. In response to the General Counsel's motion for summary judgment, the Board found that, with the exception of the affiliation issue, all representation issues raised by the respondent were or could have been litigated in the prior representation proceeding. Thus, the Board concluded that the respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. With regard to the affiliation issue, the respondent argued that because the union, Nursing and Service Employees N.J.-A District Council 1115, affiliated with Service Employees International Union after the certification issued, there are questions concerning the process of the affiliation and whether substantial continuity of representation exists. Therefore, the respondent argued, a hearing is necessary to develop an evidentiary record and summary judgment is inappropriate. For reasons stated in the decision, the Board found it unnecessary to consider the respondent's contention that the union's affiliation with Service Employees destroyed continuity of representation so as to relieve the respondent from its recognitional obligation. In addition, the Board ruled that there are no issues requiring a hearing with respect to the union's request for information. The General Counsel's motion for summary judgment was thus granted by the Board, and the Board concluded that the respondent's refusal to bargain with the union and to furnish requested information was a violation of Section 8(a)(5) of the Act. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Longshoremen ILWU Local 8 (Hall-Buck Marine) (36-CD-208; 324 NLRB No. 118) Portland, Oreg. Oct. 9, 1997. In this Section 10(k) proceeding, the Board found that there was reasonable cause to believe that the respondent, Longshoremen Local 8, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing Hall-Buck Marine to assign certain work to employees it represents rather than using West Coast Marine Cleaning whose employees are represented by Painters District Council 55. After considering employer preference, past practice and economy and efficiency of operations, the Board determined that the employees of West Coast Marine represented by Painters District Council 55 are entitled to perform the work in dispute. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Glass & Pottery Workers Local 421 (A-CMI Michigan Casting Center) (7-CD-534; 324 NLRB No. 117) Fruitport, Mich. Oct. 10, 1997. In this Section 10(k) proceeding, the respondent Glass & Pottery Workers Local 421 was charged with violating Section 8(B)(4)(d) of the Act by engaging in proscribed activity with an object of forcing A-CMI Michigan Casting Center to assign certain work to employees it represents rather than to unrepresented employees of A-CMI's Metal Mold Division. The Board stated: "Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must be established that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated. *** We cannot find reasonable cause to believe that any violation of Section 8(b)(4)(D) has occurred in this case. *** Sections 8(b)(4)(D) and 10(k) were not intended to cover situations such as this one where the dispute is essentially between the union and the employer rather than between rival groups of employees, and where the essence of the dispute is representational rather than jurisdictional. For these reasons, we conclude that the GMP's alleged conduct does not give rise to a 'jurisdictional dispute' within the meaning of Sections 10(k) and 8(b)(4)(D). We shall, therefore, quash the notice of hearing." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Byers Engineering Corp. (29-RC-8711; 324 NLRB No. 125) Long Island, N.Y. Oct. 15, 1997. Exceptions were filed after an election where seven ballots were cast for and six against Electrical Workers IBEW Local 1049, with four challenged ballots, a number sufficient to affect the results. Contrary to the Hearing Officer, the Board found that employee William Wett was not a statutory supervisor. The Board stated: "In analyzing Wett's role in training other locators, altering their assignments in order to equalize the workload, monitoring employee performance, and serving as a center for communication, we find that in each instance the authority exercised does not involve the use of independent judgment, but rather involves routine decisions typical of leadman positions and other minor supervisory employees that are found by the Board not to be statutory supervisors." The Board agreed with the Hearing Officer that the challenge to Michael Hennessey's ballot should be overruled. Accordingly, the Board directed that the ballots of Wett and Hennessey be opened and counted, and a certification of representation be issued. If the revised tally indicates that the remaining challenged ballots are determinative, any certification shall be held in abeyance pending resolution of the challenges to the ballots of Anthony Pubins and John Main. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Materials Processing, Inc. (7-CA-38157(1), et al.; 324 NLRB No. 120) Riverview, Mich. Oct. 14, 1997. Affirming the administrative law judge, the Board held that the respondent violated Section 8(a)(1) of the Act by prohibiting off-duty employees from distributing union literature on company property. "The judge did not make a credibility finding because he believed that a violation occurred whether he credited the General Counsel's witness or the Respondent's witness," the Board stated. The Board also agreed with the judge's finding that the respondent violated Section 8(a)(3) by disciplining employees because of their union activities. "Based on the judge's credibility resolutions, we agree with his conclusion that the Respondent grossly exaggerated the condition of the room after the employees left as a pretext in order to discipline them because of their union activities," said the Board. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by United Auto Workers; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Detroit, March 3-5, 1997. Decision issued by Adm. Law Judge James L. Rose, May 20, 1997.

* * *

Connecticut Limousine Service, Inc. (34-CB-1763; 324 NLRB No. 105) Milford, Conn. Oct. 2, 1997. The Board found that after Beck objections were filed, the union lawfully provided the objecting employees with sufficient information to gauge the propriety of reduced dues. A majority, Members Fox and Higgins, remanded to the administrative law judge for further consideration of issues regarding the adequacy of an independent audit of Beck financial information and whether organizing expenses are chargeable. [TEXT] [PDF]

In a partial dissent, Chairman Gould would find that organizing expenses were unlawfully charged and, therefore, no remand was necessary. Chairman Gould said he agreed with the judge that the Supreme Court's decision in Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435 (1984), compelled the finding that the union violated the Act by charging objectors for its organizing costs.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 443, complaint alleged violation of Section 8(b)(1)(A). Hearing at Hartford, Conn., June 19, 1994. Adm. Law Judge Leonard M. Wagman issued his decision on Aug. 9, 1994.

* * *

National Steel and Shipbuilding Co. (21-CA-29275, et al.; 324 NLRB No. 85) San Diego, Calif. Sept. 30, 1997. The administrative law judge found that the respondent violated Section 8(a)(1) of the Act by engaging in surveillance of the unions' rallies held outside of gate 6. The Board agreed with the judge's finding for the reasons set forth by him and for additional reasons set forth by the Board in its decision. The Board also agreed with the judge's finding that the respondent's installation of an additional, permanent security camera with a microphone attachment atop building 15 violated Section 8(a)(1). "The record evidence confirms the judge's finding that the unprecedented microphone feature establishes the Respondent's wish to listen in on things being said during gate 6 union rallies," the Board stated. The Board did not adopt the judge's finding that the new building 15 videocamera was unlawful because it had the capability to record, rather than simply display, images that are monitored by security guards via closed circuit television. The judge's Order was modified to require only that the respondent permanently disable the building 15 camera's capability to make an audio record of employees engaged in protected activities within its scanning range. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Iron Workers Local 627, Electrical Workers (IBEW) Local 569, Carpenters Local 1300, and Machinists Local 389, District Lodge 50. Hearing at San Diego, Aug. 16-19 and Oct. 24-28, 1994. Decision issued by Adm. Law Judge Timothy D. Nelson, April 22, 1996.

* * *

Merchant Fast Motor Lines, Inc. (16-CA-17950; 324 NLRB No. 97) Abilene, Texas Sept. 30, 1997. The issue before the Board was whether the respondent violated Section 8(a)(5) and (1) of the Act by failing to furnish the union with requested financial information in connection with the respondent's cessation of contributions to a contractual employee retirement plan. The judge found that the respondent violated Section 8(a)(5) by failing to provide all the requested information. The Board rejected the respondent's exceptions that (1) the union failed to prove the relevance of this information, particularly as it related to other Merchant subsidiaries, (2) it has not made any claim of financial inability to pay that would trigger a statutory obligation to provide it, (3) it did not contractually agree to the union's proposal to provide financial information, and (4) in any event, the conclusion of midterm bargaining about changes to the 401(k) plan mooted the union's need for information. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Union of Transportation Employees; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Ft. Worth, Texas, Jan. 15-16, 1997. Decision issued by Adm. Law Judge Philip P. McLeod, Feb. 28, 1997.

* * *

Dynatron/Bondo Corp. (10-CA-29014, 29231; 324 NLRB No. 98) Atlanta, Ga. Sept. 30, 1997. The administrative law judge found that the respondent committed numerous violations of Section 8(a)(5), (1), and (3) of the Act. In its exceptions, the respondent claimed that the judge erred in granting counsel for the General Counsel's posthearing motion to reopen the record to receive an amended charge. Rejecting this argument, the Board found that the judge properly granted the General Counsel's motion to reopen the record to admit the amended charge. The Board agreed with the judge's conclusion that the respondent violated Section 8(a)(5) by unilaterally instituting a new rule disciplining employees who report to work less than 15 minutes late and by discharging employee Lamar Shelton pursuant to the new rule. The Board found no merit to the respondent's exception that the underlying complaint allegations pertaining to the respondent's new disciplinary rule were barred by Section 10(b). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by UNITE; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Atlanta, Oct. 7-9, 1996. Decision issued by Adm. Law Judge Howard I. Grossman, April 8, 1997.

* * *

Le Bus (27-CA-13553, 13829; 324 NLRB No. 99) Salt Lake City, Utah Sept. 30, 1997. The administrative law judge found, inter alia, that the respondent did not violate Section 8(a)(1) of the Act when it failed to give the requisite assurances under Johnnie's Poultry, 146 NLRB 770 (1964), to employee Ray Meadows during the course of investigating the union's charge in this case. Chairman Gould and Member Fox found that the respondent had not met its burden of showing that special circumstances exist which would warrant excusing the respondent from its obligations under Johnnie's Poultry. Accordingly, the majority held that by questioning Meadows in preparation for the hearing and failing to give him the requisite assurances, the respondent violated Section 8(a)(1). Member Higgins would adopt the judge's recommended dismissal of this allegation. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Local 222; complaint alleged violations of Section 8(a)(1), (3), and (4). Hearing at Salt Lake City, Nov. 5-8, 1996. Decision issued by Adm. Law Judge Clifford H. Anderson, March 21, 1997.

* * *

Electrical Workers IBEW Local 3 (2-CD-923; 324 NLRB No. 100) New York, N.Y. Sept. 30, 1997. In this Section 10(k) proceeding, U.S. Information Systems (USIS) alleged that Electrical Workers IBEW Local 3 violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the general contractor of a project to assign certain work to employees represented by Local 3 rather than by Communications Workers Local 1106. Relying on employer preference and practice, skills and training, and economy and efficiency of operations, the Board ruled that Local 1106 is entitled to perform the disputed work. The Board declined to issue a broad award to avoid similar disputes in the future because USIS cited no case, and the Board was not aware of any other cases, where Local 3 attempted to force the reassignment of certain work from employees represented by Local 1106. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

ITT Automotive (7-CA-37082(2), et al., 7-RC-20273; 324 NLRB No. 101) Oscoda, Mich. Sept. 30, 1997. The administrative law judge found, inter alia, that the respondent did not violate Section 8(a)(1) of the Act by not adhering to the standards for questioning an employee as set forth in Johnnie's Poultry, 146 NLRB 770 (1964). The General Counsel asserted on appeal that although employee Benita Pardonnet was given the assurances required by Johnnie's Poultry, the respondent did not provide other specific safeguards set forth in that case, and thus violated Section 8(a)(1). The Board agreed with the General Counsel and stated: "When an employer transgresses the boundaries of these safeguards, it loses the benefits of the privilege. We find that certain questions asked by the Respondent's counsel of Pardonnet at the May 10, 1995 interview violated the Act because these boundaries were transgressed." Based on the judge's finding that the company's conduct during the critical preelection period clearly interfered with the employees' free choice of representation, the Board ordered that the March 30, 1995 election be set aside and a second election held. (The election tally showed 321 votes for and 503 against the union.) [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by United Auto Workers; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Tawas City, Mich., Feb. 21-23, 1996. Decision issued by Adm. Law Judge Marion C. Ladwig, July 17, 1996.

* * *

Hofstra University (29-CA-19409; 324 NLRB No. 95) Hempstead, N.Y. Sept. 30, 1997. The Board, reversing the administrative law judge, held the employer violated the Act by refusing to furnish the union with a draft report prepared by a consultant that evaluated the clerical staff. The judge had concluded that the draft report was not relevant to the unions' bargaining duties because the project for which it was compiled was terminated, and the respondent did not use the report to prepare for bargaining. This position was supported by dissenting Member Higgins. [TEXT] [PDF]

The majority of Chairman Gould and Member Fox, however, citing Washington Hospital Center, 270 NLRB 396, 400-401 (1984), found that "the draft report relates to job responsibilities and content, and therefore encompasses mandatory subjects of bargaining and thus is presumptively relevant" to the union in fulfilling its bargaining obligations.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Office and Professional Employees Local 153, complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn, N.Y., May 8, 1996. Adm. Law Judge D. Barry Morris issued his decision on Feb. 4, 1997.

* * *

Industrial and Service Workers Local 6 (X-L Plastics, Inc.) (22-CB-8184(1); 324 NLRB No. 96) Rahway, N.J. Oct. 6, 1997. The Board affirmed the administrative law judge's findings that respondent Local 6 violated Section 8(b)(1)(A) of the Act by demanding and obtaining recognition from X-L Plastics, Inc. at a time when it did not represent a majority of X-L's employees; and violated Section 8(b)(1)(A) and (2) by demanding and receiving dues deducted from employee wages and contributions to its welfare fund. The judge found that Local 6 "ceased to exist as a labor organization" following its merger or affiliation with Teamsters Local 875, and that X-L thereafter voluntarily recognized Local 875 as the representative of its employees. The Board found without merit the respondent's exception to the judge's finding that its challenge of the initial May 1994 union affiliation is time-barred by Section 10(b). The Board modified the judge's recommended remedy by deleting the words "and Respondent X-L," noting that the judge granted the General Counsel's motion to approve the withdrawal of the charge and the dismissal of those portions of the complaint relating to X-L. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 875; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Newark, June 29-30, 1996. Adm. Law Judge Howard Edelman issued his decision May 8, 1997.

* * *

A.P.R.A. Fuel Oil Buyers Group, Inc., et al. (29-CA-15446, et al.; 324 NLRB No. 103) Brooklyn, N.Y. Sept. 30, 1997. The Board ordered the respondent to make whole Luz Muniz by paying her $105,380 in backpay. In 1992, the Board directed the respondent to make Luz Muniz and five other employees whole for any losses they may have suffered as a result of the respondent's discrimination against them. (309 NLRB 480) Thereafter, the Board modified its decision by deleting two individuals from the remedy. On May 20, 1994, the U.S. Court of Appeals for the Second Circuit enforced the Board's order, as modified. Thereafter, the parties entered into a settlement agreement regarding three of the alleged discriminatees, which left for litigation the backpay claim of Muniz. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Hearing held February 25, 1997. Adm. Law Judge Raymond P. Green issued his decision May 19, 1997.

* * *

Air Liquide America Corp. (37-RD-294, 37-RM-157; 324 NLRB No. 104) Honolulu, Hawaii Oct. 7, 1997. The Board directed that the ballot of Vernon Abe be opened and counted along with the ballots of Jack Worthley and Edward R. Bumanglag Jr., and that a revised tally of ballots and the appropriate certification be issued. The tally of ballots for the election held September 12 and 13, 1996, shows 10 for and 8 against ILWU Local 142, with 3 determinative challenged ballots. Contrary to the hearing officer, the Board agreed with the employer that the parties' Norris-Thermador agreement shows that they intended that Abe, an outside sales representative at the time of the election, vote subject to challenge and that his eligibility would be determined at a later date if necessary. The Board also agreed with the employer that Abe should be included in the unit as a dual-function employee. [TEXT] [PDF]

In agreeing with the hearing officer that Bumanglag is an eligible voter and that the challenge to his ballot should be overruled, the Board concluded that under Red Arrow Freight Lines, 278 NLRB 965 (1986), the employer did not rebut the presumption of continued employee status. Member Higgins agreed with the result, but he disagrees with Red Arrow. Instead, he agrees with former Member Cohen's dissent in Vanalco, Inc., 315 NLRB 618 (1994), and finds that the test, which the employer has not met, is whether Bumanglag lacks a reasonable expectancy of continued employment. On November 27, 1995, while Bumanglag was still on approved leave and prior to the expiration of the parties' contract, the union requested a new leave of absence for Bumanglag, and the employer never acted on the request.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Regal Dodge, Inc. (32-RC-4261; 324 NLRB No. 106) Sunnyvale, Calif. Oct. 8, 1997. Affirming the Regional Director's recommendation, Chairman Gould and Member Higgins overruled the challenge to the ballot of Glen Hasegawa which he cast in an election held on April 11, 1997; and directed that the ballot be opened and counted and that a revised tally of ballot and the appropriate certification be issued. Member Fox, dissenting, would direct a hearing. [TEXT] [PDF]

The Regional Director's investigation revealed that the employer asked Hasegawa to delay his departure for a new job until it could find a replacement, that the employer offered him, as an incentive, the same rate he would receive in his new job; and that the employer advertised for a replacement prior to the election. The Regional Director concluded that Hasegawa was working on the eligibility date and on the date of the election and that, therefore, he was eligible to vote.

Chairman Gould and Member Higgins held: "Even considering the matter of the alleged 'bribe' in the context here of a challenged ballot, we find that the Petitioner has not presented sufficient evidence to warrant a hearing." Dissenting Member Fox found that the union could properly raise Hasegawa's voting eligibility and that the union presented sufficient evidence to warrant a hearing. In the latter regard, Member Fox concluded that the Regional Director erred, in the absence of a hearing, by essentially crediting the employer's asserted explanation for Hasegawa's remaining on the employer's payroll until after the election at a higher rate of pay.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Prairie Meadows Racetrack and Casino (18-RC-15972, et al.; 324 NLRB No. 91) Des Moines, Iowa. The Board reversed the Regional Director's dismissal of three petitions filed by Electrical Workers (IBEW) Local 347, AFSCME Council 61, and Operating Engineers Local 234 on behalf of employees of the employer, a racetrack which added casino operations. The Regional Director concluded that the employer was in the horseracing industry, over which the Board lacks jurisdiction. In its reversal, the Board stated: "To conclude that an enterprise with these characteristics is essentially a racetrack is to allow the tail to wag the horse. The current reality is that the vast bulk of the Employer's income, operations, and staff is connected to its casino, and that without the casino the racetrack would not exist. In our view, the Employer's primary enterprise is now its casino operation, with horseracing a comparatively minor aspect of the business. To hold otherwise would elevate form over substance." Thus, the proceedings were remanded. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Diversified Bank Installations, Inc. (18-CA-13928; 324 NLRB No. 84) Lake Elmo, Minn. Sept. 26, 1997. The administrative law judge found, and the Board agreed, that the employer interrogated employees and threatened to close its business in violation of Section 8(a)(1) of the Act; discharged Scott Harrington because of his union and other protected concerted activities in violation of Section 8(a)(3) and (1); and repudiated its collective-bargaining agreement with Iron Workers Local 512, failed to provide relevant information requested by the union, refused to bargain, and withdrew recognition from the union, in violation of Section 8(a)(5) and (1). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Iron Workers Local 512; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Minneapolis, Nov. 5-6, 1996. Adm. Law Judge William J. Pannier III issued his decision April 11, 1997.

* * *

Heritage Park Health Care Center (3-CA-19149; 324 NLRB No. 82) Jamestown, N.Y. Sept. 26, 1997. The Board affirmed the administrative law judge's conclusions, as modified, and held that the respondent is a successor employer within the meaning of NLRB v. Burns Security Services, 406 U.S. 272 (1972); and that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Teamsters Local 649, now known as Local 264, as the exclusive representative of separate licensed practical nurses and service employee units at its Heritage Park facility. As there was no allegation in the complaint, litigation at the hearing, or finding by the judge as to the initial terms of employment set by the respondent, the Board did not affirm the judge's discussion concerning the terms which the respondent must maintain until it meets its obligation to bargain. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 649, now known as Local 264; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Buffalo, May 29-30, 1996. Adm. Law Judge Jesse Kleiman issued his decision Dec. 27, 1996.

* * *

Wyandanch Day Care Center, Inc. (29-CA-20175, 20361; 324 NLRB No. 86) Wyandanch, N.Y. Sept. 26, 1997. Affirming the administrative law judge's decision, the Board found that the employer violated Section 8(a)(3) and (1) of the Act by discharging teacher Duane Middleton because of his activities for UNITE Local 340A; and violated Section 8(a)(1) by interrogating employees about their union sympathies and membership and threatening an employee with discharge because he signed a union authorization card. The judge found that Middleton's response in treating and reporting a child's injury was not "unreasonable even if he didn't follow all of the instructions" in the employer's memoranda issued to the staff, and that the "Respondent's assertion that this was the precipitating reason for his discharge either is not true or is substantially disproportionate to the alleged offense." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Duane Middleton; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn, Jan. 22 and Feb. 12-13, 1997. Adm. Law Judge Raymond P. Green issued his decision June 4, 1997.

* * *

Avis Rent-A-Car (37-RC-3787; 324 NLRB No. 81) Honolulu, Hawaii Sept. 25, 1997. Contrary to the Regional Director, the Board found that the charge filed on May 16, 1997 in Case 37-CB-1323 by the employer with the Subregional office was sufficient to constitute timely filed objections to the election. The employer's May 16 filing set forth, on the Board's standard unfair labor practice charge form, allegations pertaining to the election day conduct of Union Representative Calvin Warner. It was received within 7 days of the May 9, 1997 election as required by Section 102.69(b) of the Board's Rules and Regulations. Within 7 days thereafter, the employer furnished to the Subregion its evidence in support of the alleged objectionable conduct. The Board found inapplicable here Gardner Engineering, Inc., 313 NLRB 755 at fn. 2 (1994); Bandag, Inc., 225 NLRB 72 (1976); and Irving Air Chute, 149 NLRB 627, 629-630 (1964), relied on by the Regional Director in finding that the employer failed to file objections to the election. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Central States Xpress, Inc. (7-CA-38329, et al.; 324 NLRB No. 77) Grand Rapids, Mich. Sept. 25, 1997. The Board denied the General Counsel's motion for default summary judgment, finding that the postcharge, precomplaint statement of position filed by the respondent's director of personnel and administration, Steven Hegranes, acting pro se, was "procedurally acceptable" in lieu of an answer to the complaint. The Board wrote: [TEXT] [PDF]

Pro se respondents who fail to answer complaints as required in Section 102.20 of the Board's Rules and Regulations do so at their peril, including pro se respondents who, as here, rely on postcharge, precomplaint statements of position in lieu of an answer to the complaint itself. It is a well-established general rule that statements of position, including information submitted during the postcharge, precomplaint investigative stage, are insufficient to constitute answers to complaints. Indeed, the purpose of an unfair labor practice charge is to set in motion the machinery of a Board-conducted inquiry, and a respondent's statement of position in response to a charge is intended to be simply an aid to the General Counsel in his investigation of the charge. It is on the basis of this investigation--including consideration of a respondent's statement of position in regard to the charge--that the General Counsel may then decide whether to issue a complaint. It is the complaint, not the charge, that specifically and formally gives notice of the matters that are potentially at issue in the case and of the potential scope of the case. It is therefore, the answer to the complaint, not the earlier statement of position in response to the charge, that ultimately frames the issues in dispute, defines the scope, and thus sets the parameters of the case. Consequently, statements of position in response to charges, by their nature and their limited preliminary role, are rarely sufficient subsequently to stand in the place of answers to complaints. For these reasons, we shall continue to scrutinize carefully and strictly such postcharge statements of positions, submitted by pro se litigants, that are offered in lieu of formal answers to complaints as required by Section 102.20 of the Board's Rules and Regulations. We anticipate that we will only rarely encounter circumstances where we will find that such statements of position are procedurally acceptable in lieu of answers to complaints. Nevertheless, having duly considered the matter, we find that this case presents such circumstances.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Rick Steele and Patrick London, individuals and Teamsters Local 406; complaint alleged violation of Section 8(a)(1), (3), and (5). General Counsel filed motion for default summary judgment Aug. 22, 1996.

* * *

Burns International Security Services (1-CA-31617, 1-CA-31780; 324 NLRB No. 89) Rowe, Mass. Sept. 29, 1997. The Board affirmed the administrative law judge's findings that the respondent violated Section 8(a)(5) and (1) of the Act by discontinuing holiday pay for employees on workers' compensation, and that the respondent's employees went on strike on March 9, 1994 at least in part to protest the respondent's unlawful action. The Board found it unnecessary to pass on the General Counsel's and charging party's exceptions to the judge's dismissal of allegations that the respondent violated Section 8(a)(3) and (1) by failing to reinstate John Lake as a security guard, noting that the General Counsel litigated the allegation solely as part of his proof that the strike was an unfair labor practice strike. [TEXT] [PDF]

Member Higgins, concurring, said that he wished to note that the result in this case, where there was a clear past practice of granting holiday pay to employees on workers' compensation and the respondent unilaterally changed that past practice, is not inconsistent with NLRB v. Postal Service, 8 F.3d 832 (D.C. Cir. 1993), where there was no past practice, and unilateral employer action was privileged by the management rights clause of the contract.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Government Security Officers Local 15; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Greenfield, Mass, Sept. 19 and 20, 1995. Adm. Law Judge Judith A. Dowd issued her decision Sept. 30, 1996.

* * *

Efficient Medical Transport, Inc., Phoenix Transportation Services, Inc. and MedTrans (4-CA-25177; 324 NLRB No. 92) Pennsauken, N.J. Sept. 30, 1997. The Board upheld the administrative law judge's dismissal of complaint allegations that the employer violated Section 8(a)(3) and (1) of the Act by discharging Michael Hewitt because of his activities for Teamsters Local 331. In joining their colleague and dismissing the complaint, Chairman Gould and Member Fox agreed that the General Counsel failed to establish that union activity was a motivating factor in Hewitt's discharge. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Teamsters Local 331; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, April 3-4, 1997. Adm. Law Judge Arthur J. Amchan issued his decision June 9, 1997.

* * *

Operating Engineers Locals 17, 17A, 17B, 17RA (Arby Construction) (3-CD-630-2, -4; 324 NLRB No. 83) Tonawanda, N.Y. Sept. 26, 1997. In this Section 10(k) proceeding, Arby and Plumbers Local 36 alleged that the respondent, Operating Engineers and four of its locals, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with the object of forcing Arby to assign certain work to employees represented by Operating Engineers rather than employees represented by Plumbers Local 36. The Board ruled as follows: "After considering all the relevant factors, we conclude that employees represented by Plumbers Local 36 are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agreements, employer preference and past practice, and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Plumbers Local 36, not to the union or its members." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Electrical Workers IBEW Local 98 (LaSalle University) (4-CD-930; 324 NLRB No. 87) Philadelphia, Pa. Sept. 30, 1997. In this Section 10(k) proceeding, LaSalle University alleged that the respondent, Local 98, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with the object of forcing the University to assign certain work to employees represented by Local 98 rather than employees of David Brandolph Electric Co., Inc., who are not represented by any labor organization. After considering all relevant factors, the Board ruled that the unrepresented Brandolph employees are entitled to perform the work in dispute. The Board majority found no grounds upon which to base an award encompassing all future work that Brandolph might perform at the University and limited its determination of the work in dispute to the controversy that gave rise to this proceeding. [TEXT] [PDF]

Dissenting, in part, Member Higgins, stated that "only a broad award can be effective here," on the grounds that Local 98 threatened to picket job sites at the University where Brandolph was performing work and the likelihood that Brandolph will perform work at the University in the future.

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Alldata Corp. (29-CA-19772; 324 NLRB No. 88) Queens, N.Y. Sept. 30, 1997. The attorney for complaintant Karl Abbadessa submitted on Dec. 19, 1995 a charge by fax alleging a Section 8(a)(1) unlawful discharge. At that time of the filing, federal government offices were closed for lack of funds during Congressional debate over the federal budget. The charge did not contain an oath or declaration under penalty of perjury that the allegations made therein were true. The administrative law judge dismissed the Section 8(a)(1) complaint because the underlying charge did not include the oath or declaration of truth required by the Section 102.11 of the Board's Rules and Regulations. The Board found that there were no statutory or procedural bars to the litigation of the allegation. With regard to the finding that no procedural bar existed, the Board stated: "Contrary to the judge, however, the failure of a charging party to comply with the jurat or declaration requirement does not affect the timeliness of the filing of an unfair labor practice charge. To be sure, a Regional Office can withhold investigation of a charge until the charging party has satisfied the protective purposes of Section 102.11. That is exactly what the Regional Director did here by requiring Abbadessa's attorney to resubmit the previously filed charge on a Board form containing the required statement of truth. He thereby ensured the seriousness of the Charging Party's intention in filing the charge by exposing him to criminal sanction in the event of a willfully false statement." [TEXT] [PDF]

The Board further explained: "The time taken to comply with the jurat or declaration requirement of Section 102.11, however, does not tack onto the time already run prior to the filing of the original charge. * * * To hold otherwise would unnecessarily limit the Board's fundamental authority to investigate and remedy unfair labor practices. * * * We, therefore, find no procedural bar to the litigation of the 8(a)(1) discharge allegation in this case. We further find that a remand is necessary for a supplemental decision by the judge with respect to his conclusion that the Respondent has violated the Act."

Dissenting, in part, Chairman Gould agrees with his colleagues' reversal of the judge's dismissal of the complaint on procedural grounds, but disagreed with their decision to remand the case to the judge for supplemental findings and conclusions on the unfair labor practice issue. "In my view, the record and the judge's decision, including his implicit credibility resolutions, are adequate for Board review and resolution of all substantive issues raised in exceptions. I would decide the case without further delay," he stated.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Karl Abbadessa, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn, Sept. 11 and Oct. 18, 1996. Decision issued by Adm. Law Judge Raymond P. Green, Dec. 27, 1996.

* * *

Aminco (6-CA-27474; 324 NLRB No. 72) Meadville, Pa. Sept. 19, 1997. The Board affirmed the administrative law judge's conclusion that the employer violated Section 8(a)(3) and (1) of the Act by discharging Joseph Welch. The Board found that, despite minor errors in the judge's decision, the record supported his finding that the General Counsel established that the respondent knew of Welch's numerous union activities and that he was among the most active union supporters and that the respondent failed to establish that Welch would have been discharged even in the absence of his union activities. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers UE Local 637; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Meadville on Sept. 16, 1996. Adm. Law Judge Arthur J. Amchan issued his decision Dec. 4, 1996.

* * *

Royalite, a Division of Uniroyal Technology Corp. (25-CA-23836, 23865; 324 NLRB No. 79) Warsaw, Ind. Sept. 24, 1997. The administrative law judge found, and the Board agreed, that the respondent discharged Alfredo Lozano, a leading union adherent, because of his activities for the Paperworkers International in violation of Section 8(a)(3) and (1) of the Act. The respondent, relying on certain company policies and two previous discharges, contended that it discharged Lozano because he falsified his employment application. [TEXT] [PDF]

The credited evidence shows that the respondent discharged Lozano on the day he testified in a manner adverse to the respondent's position in a hearing on its objections to a Board-conducted election. During his testimony, Lozano acknowledged that he did not indicate on his employment application a prior conviction and 42-month incarceration on felony cocaine charges. The judge credited Lozano's testimony that he did not intentionally falsify his answer to the question on the application concerning prior convictions. The judge also found that while employed by the respondent, Lozano openly talked about his criminal conviction with coworkers and supervisors, and that Lozano's criminal past and his subsequent religious conversion were well known throughout the plant. The Board found merit in the respondent's exception to the judge's finding that the respondent had no written policy on discharge for falsification of an application.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by the Paperworkers International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Warsaw, Feb. 21-23 and May 15-17, 1996. Adm. Law Judge Lowell Goerlich issued his decision Sept. 17, 1996.

* * *

GTE California Inc. (31-CA-20968; 324 NLRB No. 78) Thousand Oaks, Calif. Sept. 23, 1997. The Board dismissed a complaint which alleged that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with Communications Workers Local 9586 by failing to provide, during the processing of a grievance, the requested name, address, and telephone number of the customer whose complaint resulted in the discharge of Charles Hokanson, a telephone information assistance operator. The complaining customer, whose home telephone number was "nonpublished/unlisted," refused GTE's request to release her name, address, or home telephone number to the union. [TEXT] [PDF]

The parties requested the Board to issue a decision and order based a stipulation of facts. Chairman Gould and Member Higgins found that: (1) the requested information was relevant to the union; (2) GTE established a confidentiality interest; (3) at the time the complaining customer filed her complaint, GTE had a "preexisting obligation" to keep her name, address, and telephone number confidential and that the filing of the complaint did not alter its confidential character; and (4) GTE's confidentiality claim was not negated by the fact that GTE relied in part on a state statute or rule. Chairman Gould and Member Higgins also found it unnecessary to weigh in this case the union's need for the information against GTE's confidentiality interests, noting that GTE proposed, the parties bargained over, and the union ultimately accepted an accommodation that permitted GTE to keep the requested information confidential while enabling the union to achieve its objective of interviewing the complaining customer. See Pennsylvania Power & Light Co., 301 NLRB 1104 (1991).

In dismissing the complaint, Member Fox did not rely on her colleagues' rationale that the respondent had a "preexisting" confidentiality obligation that supported its refusal to furnish otherwise relevant information to the union. She relied only on the "accommodation reached by the parties that permitted the Union to interview the complaining customer and to fulfill its representational functions in this fashion."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Communications Workers Local 9586; complaint alleged violation of Section 8(a)(5) and (1). The parties waived their right to a hearing before an administrative law judge.

* * *

Gormac Custom Mfg., Inc. (8-RC-15382; 324 NLRB No. 80) North Lima, Ohio Sept. 22, 1997. Affirming the Regional Director's recommendation, the Board overruled the employer's Objections 1, 2, 3 and remanded the proceeding to the Regional Director for further appropriate action. In its exceptions, the employer alleged that the Steelworkers' inclusion of the signatures from three unit employees on a pro-union leaflet distributed on election day was tantamount to forgery and a breach of confidentiality warranting setting aside the election held June 14, 1996. The Regional Director found, and the Board agreed, that the employee signatures were reproduced from a document which the employees signed, and that the document contained a statement that, "This further authorizes the Union to . . . sign my name to union leaflets." The Board rejected the employer's contention that it is entitled, at a minimum, to an evidentiary hearing based on affidavits it obtained from the employees stating that they were told at the time they signed the document that their signatures would be confidential and that the document would only be used to obtain a representation election. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Excel Corp. (17-CA-18638, 18694-1; 324 NLRB No. 76) Marshall, Mo. Sept. 22, 1997. The Board upheld the administrative law judge's decision that the employer violated Section 8(a)(3) and (1) of the Act by giving employees disciplinary forms because they had engaged in union or other protected concerted activity; and violated Section 8(a)(1) by threatening and interrogating employees, physically accosting an employee, and telling employees that collective bargaining is futile and that it would not negotiate certain benefits if Food and Commercial Workers Local 576 represented them. In adopting the judge's conclusion that the respondent violated Section 8(a)(1) by interrogating employee Sue Nicholson, Chairman Gould finds 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]

No exceptions were filed to the judge's dismissal of the complaint allegation that the respondent unlawfully interrogated employees Sherry Heuman and Bryan Young by asking them why they were wearing union insignia.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Food and Commercial Workers Local 576; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Marshall, Nov. 18-20, 1996. Adm. Law Judge Albert A. Metz issued his decision March 3, 1997.

* * *

Rose Hills Co. (21-CA-30208, et al.; 324 NLRB No. 75) Whittier, Calif. Sept. 22, 1997. Affirming the administrative law judge's decision, the Board concluded that the respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging John Quiroz and Michael Renteria because of their support for Teamsters Local 848; and violated Section 8(a)(1) by informing an employee that he was a known union advocate and he should resign his employment. No exceptions were filed to the judge's dismissal of complaint allegations that the respondent violated Section 8(a)(5) and (1) by withdrawing its last bargaining proposal after the union notified the respondent of its acceptance of the proposal and by subsequently withdrawing recognition from the union. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Local 848; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Los Angeles, Aug. 26-28 and Oct. 28, 1996. Adm. Law Judge Mary Miller Cracraft issued her decision April 22, 1997.

* * *

Odebrecht Contractors of California, Inc. (31-CA-21966, 21967; 324 NLRB No. 74) Highland, Calif. Sept. 19, 1997. The administrative law judge found that the respondent was free to unilaterally change its rotating shift system, but was not free to unilaterally lay off 79 unit employees as a result of the change without timely notifying the union and bargaining over the matter. The judge's proposed remedy for this Section 8(a)(5) violation was reinstatement and backpay plus interest for the duration of the layoffs. The Board found that the respondent's failure to timely notify and bargain with the union over the layoff of employees is an effects bargaining violation, i.e., the respondent unlawfully failed to bargain with the union over the effects of its decision to change the rotating shift system, including the layoffs. As a result of this finding, the Board amended the judge's remedy by substituting a make-whole provision appropriate to an effects bargaining violation, i.e., one analogous to that set out in Transmarine Navigation Corp., 170 NLRB 389 (1968), in place of the reinstatement and make-whole remedy set out by the judge. [TEXT] [PDF]

Concurring, Member Fox stated: "I agree, for the reasons stated by the judge as modified or clarified by my colleagues' opinion, that the Respondent violated the Act in all the respects reflected in our order. * * * Given the General Counsel's exclusive authority under Section 3(d) of the Act to draft the complaint, we have no basis for passing on whether the General Counsel should have alleged either that the Respondent's related unilateral decision to alter its shift system was unlawful or that the obligation to bargain over the layoffs stood on its own. * * * I therefore do not pass on whether, had the General Counsel litigated the violations in this case differently, Miami Rivet of Puerto Rico, 318 NLRB 769, 771-772 (1995), would be dispositive of the remedial issue."

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Operating Engineers Local 12; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Los Angeles, Aug. 12, 1996. Decision issued by Adm. Law Judge James M. Kennedy, Dec. 17, 1996.

* * *

Pleasant Manor Living Center (16-CA-18085; 324 NLRB No. 68) Waxahachie, Tex. Sept. 17, 1997. The administrative law judge found that the respondent violated Section 8(a)(1) of the Act by interrogating certain employees about their union activities and by promising an employee a monetary benefit to stop helping a union supporter. The judge found the evidence insufficient to establish that the respondent violated the Act with respect to two alleged unlawful interrogations. The Board affirmed the judge's findings and, in response to exceptions filed, stated that "the Respondent's probing attempts to find out the sympathies of an employee who had not disclosed her attitude toward the Union were coercive, and therefore, a violation of Section 8(a)(1)." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by United Food and Commercial Workers Local 1000; complaint alleged violations of Section 8(a)(1). Hearing at Forth Worth, Tex., Feb. 12, 1997. Decision issued by Adm. Law Judge D. Randall Frye, March 26, 1997.

* * *

Seda Specialty Packaging Corp. (21-CA-31554, 31834, 21-RC-19670; 324 NLRB No. 70) Los Angeles, Calif. Sept. 16, 1997. The Board affirmed the administrative law judge's findings that the respondent violated Section 8(a)(1) of the Act by blaming Teamsters Locals 848 and 986 for its failure to grant promised pay increases and shift rotation benefits, and by telling employees that there would be no retroactive pay raises because they "brought in" the unions. The judge dismissed, with Board approval, allegations that the employer unlawfully interrogated employees as to their union sympathies, maintained a list of their responses, and threatened to reduce their wages if they choose the unions as their representatives. In the absence of exceptions, the Board adopted the judge's recommendation and overruled the unions' election objections relating to these actions. The Board certified the results of the election which the unions lost 132-65. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Locals 848 and 986; complaint alleged violation of Section 8(a)(1). Hearing at Los Angeles on April 10, 1997. Adm. Law Judge Albert A. Metz issued his decision June 5, 1997.

* * *

Teamsters Local 1049 (29-CB-9967; 324 NLRB No. 69) Hauppauge, N.Y. Sept. 15, 1997. The union violated Section 8(b)(1)(A) of the Act by threatening physical harm in the presence of employees if Tower Landscaping did not sign an agreement with the union and assign its landscaping work to union members. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Tower Landscaping; complaint alleged violation of Section 8(b)(1)(A). Hearing at Brooklyn on Jan. 23, 1997. Adm. Law Judge Joel P. Biblowitz issued his decision March 25, 1997.

* * *

Atlantic Industrial Constructors, Inc. (5-RC-14250; 324 NLRB No. 59) Richmond, Va. Sept. 17, 1997. A Board majority adopted the hearing officer's recommendation to set aside the results of an election where the tally of ballots was 9 for and 7 against the petitioner, Plumbers Local 10, with 4 determinative challenged ballots. Members Fox and Higgins stated: "In adopting the hearing officer's recommendation to set the election aside on the basis of objections pertaining to the erroneously incomplete description of the voter eligibility formula contained in the Decision and Direction of Election, we note the credited evidence that the Employer relied on that articulation of the formula in preparing an Excelsior list including two ineligible voters, and we conclude that such reliance was reasonable. We further note that those two ineligible voters cast unchallenged ballots in the election as a result of the error and that their votes could be determinative." The majority also noted, contrary to Chairman Gould, that "we would not find the Agency's erroneous statement of the formula harmless simply because the Employer had potential access to labor counsel. * * * Moreover, the Agency had the public responsibility for setting forth clearly, in its Decision and Direction of Election, what the voter eligibility requirements were." A second election was ordered. [TEXT] [PDF]

Dissenting, Chairman Gould would overrule all of the employer's objections, reject the hearing officer's recommendations to set aside the election, and issue a certification of representative. Citing Daniel Construction Co., he stated: "Here, the Employer's mistaken inclusion of two ineligible voters on the Excelsior list was easily preventable had the Employer's president and bookkeeper simply conferred, during the preparation of the Excelsior list, with the experienced labor counsel who has represented the Employer throughout these proceedings. If they had done so, they would have discovered that the Daniel formula has always been premised on a concept of 'working' days. * * * When an employer freely chooses not to take the opportunity to seek retained counsel's assistance, guidance, and clarification on Excelsior list issues, the scale of fairness, in my view, tips in favor of treating the objections to the Excelsior list as impermissible postelection challenges."

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Target Rock Corp. (29-CA-17103, et al.; 324 NLRB No. 71) East Farmingdale, N.Y. Sept. 18, 1997. The administrative law judge found, inter alia, that the respondent failed to prove that the individuals hired to replace economic strikers were permanent employees, and thus the respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate the strikers following their unconditional offer to return to work. Upholding the judge's finding, the Board stated: "We find from the foregoing evidence that the Respondent and the replacement employees did not share any mutual understanding that the replacements were hired as permanent employees. Rather, as the judge found, the evidence shows that the Respondent purposefully intended to keep its options open with respect to whether the replacements would be temporary or become permanent employees. Furthermore, there is no evidentiary support for the proposition that the replacements believed, or had sufficient reason to believe, that they were permanent employees." [TEXT] [PDF]

Member Higgins concurred with the finding but did not rely on the entire rationale. He stated: "... I would not base a finding of 'temporary replacement' status on an employer's retention of the right to discharge replacements in the aforementioned defined circumstances. In short, there can be, at the time of hire, a mutual intention that the replacements be permanent, albeit with the possibility that future events may result in termination. However, in the instant case, the evidence shows that the Respondent intended that the replacements be temporary, albeit with the possibility that they might subsequently be made permanent."

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers IUE Local 431; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Brooklyn, N.Y., Jan. 30-Feb. 3, 1995. Decision issued by Adm. Law Judge Benjamin Schlesinger, June 22, 1995.

* * *

Cortland Transit, Inc. (3-CA-19655; 324 NLRB No. 66) Cortland, N.Y. Sept. 18, 1997. In an earlier decision, the Board granted the General Counsel's Motion for Default Summary Judgment, found numerous violations of Section 8(a)(1), (3), and (5), and issued a cease and desist order. The General Counsel then filed a motion for reconsideration requesting the Board to order the respondent to bargain in good faith with Teamsters Local 317, on request, for the period of time required by Mar-Jac Poultry. The Board denied the motion for reconsideration, stating that the complaint and the Motion for Summary Judgment failed to allege facts that would warrant an extension of the certification year in accord with the remedy set forth in Mar-Jac Poultry. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

King Broadcasting Co. (19-CA-24264; 324 NLRB No. 57) Seattle, Wash. Sept. 9, 1997. The administrative law judge concluded, with Board approval, that King violated Section 8(a)(1) and (5) of the Act by refusing a request made by the union for copies of certain employment agreements executed by King and individual union members. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by American Federation of Television and Radio Artists (Seattle Local); complaint alleged violation of Section 8(a)(1) and (5). Hearing at Seattle, May 3, 1996. Decision issued by Adm. Law Judge David G. Heilbrun, March 14, 1997.

* * *

SMC Engineering and Contracting, Inc. (12-CA-18270; 324 NLRB No. 61) No. Jupiter, Fla. Sept. 10, 1997. The Board denied the General Counsel's motion for summary judgment against the employer on the grounds that the General Counsel re-served the complaint and pleading at the respondent's new address and using the respondent's correct name, and the respondent answered the amended complaint with a general denial. "In light of the General Counsel's actions, and in consideration of the pro se representation of the Respondent, we will accept the Respondent's May 1, 1997 answer as timely," the Board stated, remanding the case to the region for a hearing. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers (IBEW) Local 728; complaint alleged violation of Section 8(a)(1) and (3).

* * *

Saltwater, Inc. (19-RC-13412; 324 NLRB No. 65) Anchorage and Kodiak, Alaska. Sept. 10, 1997. The Board denied the employer's request for review of the Acting Regional Director's decision and direction of election in which she used an alternative eligibility formula and found appropriate the petitioned-for unit of the employer's groundfish and shellfish observers. In so doing, the Board rejected the employer's suggestion that the Acting Regional Director misapplied an eligibility formula devised for the construction industry to an industry (supplying groundfish and shellfish observers) with different characteristics. The Board also found that the employer did not effectively refute the Acting Regional Director's finding that the record does not establish that observers leave the industry after completing their contracts with the employer. The Board also stated: "...[W]e find that the Acting Regional Director's selection of an August/September balloting period is a reasonable method of balancing the goals of holding a prompt election while also enfranchising the greatest number of eligible employees, particularly given the ... use of an alternative eligibility formula." (The union involved is the Alaska Fishermen's Union.) [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Cassis Management Corp. (2-CA-29311; 324 NLRB No. 55) Dobbs Ferry, N.Y. Aug. 29, 1997. The Board concluded that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Service Employees Local 32E on April 4, 1996, and issued a bargaining order. In so doing, the Board relied on the administrative law judge's supplemental credibility findings that no agent of the union or prounion employee engaged in any picket line misconduct, and its earlier decision and order (323 NLRB No. 68 (April 14, 1997)). Member Higgins joins in affirming the judge's findings that there is no credible evidence of any picket line misconduct and denying the respondent's motion for reconsideration and to reopen the record. However, he adhered to his earlier dissenting view that Donald Hoy, who solicited authorization cards, was a supervisor and that union authorization cards cannot be used to support a bargaining order. [TEXT] [PDF]

In the prior decision, the Board affirmed the judge's findings that the respondent discharged the entire bargaining unit in violation of Section 8(a)(3) and (1), but it reversed the judge and found that Hoy was not a statutory supervisor, that he should be offered reinstatement and backpay along with the rest of the bargaining unit, that the authorization cards he solicited were valid, and that the cards demonstrated that a majority of the unit employees wished to be represented by the union. Although the Board found that a bargaining order was presumptively appropriate because of the respondent's egregious unfair labor practices, it remanded the proceeding to the judge to resolve a conflict in the testimony concerning the respondent's allegations that union officials engaged in picket line misconduct which precluded issuance of a bargaining order under the doctrine set forth in Laura Modes Co., 144 NLRB 1592 (1963).

(Chairman Gould and Members Fox and Higgins participated.)

Adm. Law Judge Raymond P. Green issued his supplemental decision Sept. 30, 1996.

* * *

Society to Advance the Retarded & Handicapped, Inc. (34-CA-6883; 324 NLRB No. 50) Norwalk, Conn. Aug. 22, 1997. The issue on appeal was whether the respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Jon Gibbons. The administrative law judge found that the Act was violated based on an inference that the respondent discharged Gibbons not because of allegations of sexual harassment, but because of his union activities. The Board disagreed. Citing Precision Industries, the Board stated: "In the circumstances of this case, where there is no other evidence of animus or unlawful conduct, and no direct evidence that the Respondent knew of union activity on the part of Gibbons or among any of its employees, we are not willing to infer an antiunion motivation based on this single, postdischarge statement of opposition to unionization." * * * "We cannot conclude, in the absence of more substantial evidence of the Respondent's knowledge of union activity or antiunion animus, that the inference to be drawn from the circumstances of Gibbons' discharge rises above the level of mere suspicion." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by New England Health Care Employees Local 1199; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, Conn., July 18-21, 1995. Decision issued by Adm. Law Judge David S. Davidson, June 26, 1996.

* * *

Datco, Inc. (34-RC-1431; 324 NLRB No. 53) Clinton, Conn. Aug. 25, 1997. Contrary to the regional director, the Board, citing D&L Transportation, concluded that employees at the employer's Clinton location constitute a presumptively appropriate single facility unit and that the presumption has not been rebutted. Dissenting, Member Higgins would not overturn the regional director's decisions in D&L Transportation or in this instance. He stated: "Indeed the majority's decision is less justified here than it was in D&L. Here, unlike in D&L, the terminal manager does not make hiring decisions, and the employees at the relevant terminal have no special skills." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Technology Service Solutions (27-CA-13971, 13971-3; 324 NLRB No. 49) Englewood, Colo. Aug. 22, 1997. The complaint alleged violations of Section 8(a)(1) by failing to provide the union with the names and addresses of bargaining unit employees where there was no reasonable alternative means for the union to communicate with employees; and by threatening to discipline an employee if he called other employees regarding unionization, promising a pay increase if he refrained from union activity, and threatening to withhold a pay increase if a union was selected. Following the close of the General Counsel's case at hearing, the respondent moved to dismiss the complaint; the motion was granted. The Board found that the General Counsel presented sufficient evidence supporting each complaint allegation to overcome the respondent's motion to dismiss and to require that the respondent be given an opportunity to present evidence in its defense. In discussing one of the four bases for the dismissal, the Board noted: "The judge found that the plain meaning of Section 8(a)(1) requires that an employer must have 'performed some sort of definite action' to interfere with, restrain, or coerce employees in the exercise of their rights in order to violate that section and that the Respondent had performed no such 'overt act.' Rather, the Respondent 'simply arrang[ed] its business in a manner which has the incidental effect of making it difficult to organize.'" * * * "Regarding the complaint allegation that the Respondent violated Section 8(a)(1) by refusing to provide the Union with the CSR's names and addresses, we find no basis for the judge's holding that an overt act must occur for an employer to violate Section 8(a)(1). Indeed, the judge appears to have fashioned this requirement out of whole cloth." The Board vacated the judge's decision and order, and remanded the proceeding. [TEXT] [PDF]

Concurring, Chairman Gould wrote a separate opinion to address the theory underlying the complaint allegation that the respondent violated the Act by refusing the union's request for the names and addresses of particular bargaining unit employees. He stated: "I would find that, in the circumstances presented here, where employees' efforts to obtain union representation are severely hampered because, due to the Respondent's unusual operating structure, unit employees are so dispersed and little known to each other that they are effectively deprived of both their right to discuss organization among themselves and their right to learn the advantages of self-organization from union representatives, the General Counsel has established a prima facie case that the Respondent violated Section 8(a)(1) by denying the Union's request for the unit employees' names and addresses which, if provided, would have substantially aided restoration of these rights."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers (IBEW) Local 11; complaint alleged violations of Section 8(a)(1). Decision issued by Adm. Law Judge James M. Kennedy, Sept. 20, 1996.

* * *

Sheet Metal Workers' Local 104 (Dependable Sheet Metal) (20-CB-10032; 324 NLRB No. 32) Vacaville, Calif. Aug. 8, 1997. On a stipulated record the Board found that the respondent, Sheet Metal Workers' Local 104, violated Section 8(b)(3) of the Act by refusing to bargain on an individual basis with Dependable. The Respondent maintained that its refusal to bargain on an individual basis was lawful because Dependable consented to multiemployer bargaining when it agreed to abide by the 1992-1995 Standard Form of Union Agreement which contains an assignment of bargaining rights clause. The Board found that Dependable did not consent to bargain on a multiemployer basis, and thus the Respondent's refusal to bargain individually with Dependable violated Section 8(b)(3). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Dependable Sheet Metal; complaint alleged violation of Section 8(b)(3).

* * *

R&W Landscape & Property Management, Inc. (1-CA-33488; 324 NLRB No. 44) Wilmington, Mass. Aug. 18, 1997. The Board affirmed the administrative law judge's finding that the respondent violated Section 8(a)(1) and (3) by threatening, interrogating, and surveilling union members and by discharging Richard and Victor Pena. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Service Employees Local 254; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Boston, June 17-18 and July 29-30, 1996. Decision issued by Adm. Law Judge Robert T. Wallace, April 11, 1997.

* * *

Vencor Hospital-Los Angeles (31-CA-20654, 20699, 31-RC-7182; 324 NLRB No. 35) Los Angeles, Calif. Aug. 13, 1997. The judge concluded, inter alia, that respiratory therapist Michael Wade was discharged, not because of his union activities, but because he violated hospital policy by failing to stay with his patient during a Code Blue emergency. The sole exception to the administrative law judge's decision involved his dismissal of these Section 8(a)(3) and (1) charges, which the Charging Party claims was erroneous because he improperly relied on hearsay testimony. A Board majority stated that the judge specifically ruled that this testimony was neither offered, received, nor considered for the truth of the matter asserted, but merely to establish that other respiratory therapists had told supervisors Ashby and Shoppman what they thought was hospital policy. The majority found that a misstatement by the judge was inadvertent and that the judge did not improperly rely on hearsay testimony in finding that Wade's discharge did not violate the Act. [TEXT] [PDF]

In dissent, Chairman Gould stated: "The administrative law judge found that 'the General Counsel has met his burden of persuasion that antiunion sentiment was a substantial and motivating force in the decision to discharge Michael Wade.' With that finding under my concurring opinion in Paper Mart, [ ], a violation of this statute is established. Since the Supreme Court in Transportation Management stated that it was 'plainly rational and acceptable' for the Board to construe the Act so 'that to establish an unfair labor practice the General Counsel need show by a preponderance of the evidence only that a discharge is in any way motivated by a desire to frustrate union activity,' the administrative law judge's findings and the evidence clearly support a violation."

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by United Health Care Employees; complaint alleged violations of Section 8(a)(1) and (3). Hearing on various days in Nov. and Dec. 1995 and Feb. 1996. Decision issued by Adm. Law Judge Clifford H. Anderson, Aug. 19, 1996.

* * *

Computer Associates International, Inc. (29-CA-17315; 324 NLRB No. 43) Islandia, N.Y. Aug. 19, 1997. The Board affirmed the administrative law judge's finding that respondent Computer Associates International, Inc. violated Section 8(a)(1) of the Act through various interrogations, promises, threats, and warnings related to the union membership and/or activities of union-represented operating engineers working at its facility. [TEXT] [PDF]

However, the Board reversed the judge's finding that the respondent violated Section 8(a)(3) and (1) by causing the discharge of nine union-represented operating engineers. The judge had agreed with the General Counsel's argument that the company's discriminatorily-motivated termination of an engineering services agreement caused the engineers' loss of employment, and thus it would be appropriate under Esmark, 315 NLRB 763 (1994), to hold Computer Associates alone liable under the Act irrespective of joint employer status. The Board remanded the proceeding to the judge for the purpose of determining the joint-employer status of the respondent.

"[A]n employer does not unlawfully encourage union membership by substituting a contractor with unionized employees for a nonunion contractor, nor does it unlawfully discourage union membership by the reverse action, regardless of whether the union status of the subcontractors' employees motivates the contracting decisions," the Board stated.

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Operating Engineers Local 30; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Brooklyn and New York, N.Y. on various dates from May 24, 1994, through Jan. 13, 1995. Adm. Law Judge Howard Edelman issued his decision on March 6, 1996.

* * *

Noah's New York Bagels, Inc. (32-CA-14257, et al., 32-RC-3914; 324 NLRB No. 42) San Leandro, Calif. Aug. 15, 1997. The Board held that the respondent violated Section 8(a)(1) of the Act when its president, Bill Hughson, made a statement to employee George Killingsworth regarding the upcoming union election that wages "would" revert to a minimum if the union won. The judge did not find an unlawful interrogation. The Board said his failure to do so was "apparently based on a finding that Hughson did not ask Killingsworth whether he had made up his mind regarding the election." [TEXT] [PDF]

On a separate issue, the Board, citing National Micronetics, 277 NLRB 993 (1985), dismissed the judge's finding based on the General Counsel's position that the respondent violated Section 8(a)(1) with a captive audience speech by Hughson in which he asked employees for a "second chance."

Charges filed by Teamsters Local 853; complaint alleged violation of Section 8(a)(1). Hearing at Oakland, Calif., May 8 through 12, 1995. Adm. Law Judge Jay R. Pollack issued his decision on Oct. 30, 1995.

* * *

Monongahela Power Company (6-CA-27194, 27213; 324 NLRB No. 37) Maidsville, W. Va. Aug. 11, 1997. The Board dismissed complaint allegations that the respondent violated the Act by suspending and changing the shift assignments of Gary Cutlip and Mark Prah in retaliation for their protected activities. The General Counsel relied on, among other things, uncontested statements made by the respondent's representatives in 1991 and 1993 reflecting union animus to support the inference that protected conduct was a motivating factor in the employer's conduct. Although the Board disagreed with the administrative law judge's finding that consideration of the 1991 and 1993 statements was time-barred by Section 10(b) and by non-Board settlement agreements entered into subsequent to the statements, it agreed with the judge that the respondent showed that it would have taken the same disciplinary and reassignment actions even in the absence of Cutlip's and Prah's protected activities.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Gary Cutlip and Mark Prah, individuals; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Morgantown, Oct. 4-5, 1994. Adm. Law Judge James L. Rose issued his decision March 1, 1996.

* * *

Sutter Roseville Medical Center (20-RC-17144; 324 NLRB No. 38) Sutter, Calif. Aug. 11, 1997. The Board overruled the employer's objections to an election held in September 1996 and petitioned for by the California Nurses Association seeking to represent a unit of Sutter's registered nurses (RNs), including those designated as clinical partners. The Board held: "Based on the record before us, primarily consisting of the evidence introduced at the preelection hearing, we are unable to determine whether clinical partners are statutory supervisors because of their role in hiring and transfers. Assuming arguendo, that clinical partners are supervisors, however, we find that the prounion conduct alleged by the Employer could not reasonably have affected the election." Thus, without resolving the issue of clinical partners' supervisory status, the Board certified the union as the exclusive representative of all RNs. The Board noted that the uncertainty over the inclusion of clinical partners in the unit can be resolved through the bargaining process or through the timely filing of a unit clarification petition.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

McGuire Steel Erection, Inc. (7-CA-37401; 324 NLRB No. 34) Brighton, Mich. Aug. 12, 1997. The administrative law judge found, and the Board agreed, that the employer violated Section 8(a)(5) and (1) of the Act by refusing and failing to provide Ironworkers Local 25 with relevant information which it requested. The Board did not adopt the judge's recommendation that the employer be required to reimburse the union for its litigation expenses, finding that the employer's unfair labor practices were not so flagrant, aggravated, persistent or pervasive as to warrant the imposition of the extraordinary remedy.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Ironworkers Local 25; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit, Oct. 28-29, 1996. Adm. Law Judge Arthur J. Amchan issued his decision Feb. 21, 1997.

* * *

Electrical Workers IBEW Local 98 (Lucent Technologies, Inc.) (4-CD-945, 946; 324 NLRB No. 41) Philadelphia, Pa. Aug. 12, 1997. Relying on the factors of collective-bargaining agreements, company preference and past practice, area and industry practice, relative skills, and economy and efficiency of operations, the Board decided that Lucent's employees represented by Communications Workers District 13 and Local 13590 (CWA), are entitled to install five ESS digital switch and power plant telephone systems installed by Lucent, wherever the geographical jurisdiction of Electrical Workers IBEW Local 98 and CWA coincide.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Caterpillar, Inc. (33-CA-10649, et al.; 324 NLRB No. 36) Peoria, Ill. Aug. 11, 1997. At issue before the Board were eight complaint allegations of violations of Section 8(a)(1) of the Act. The administrative law judge recommended that four complaint allegations be dismissed, but found merit in four others. The Board affirmed the judge's rulings, findings, and conclusions, and adopted the recommended Order modifying it to include broad cease-and-desist language.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by UAW Locals 751 and 974; complaint alleged violations of Section 8(a)(1). Decision issued by Adm. Law Judge Stephen J. Gross, July 5, 1996.

* * *

Radio Station KOMO-AM (19-CA-24199; 324 NLRB No. 39) Seattle, Wash. Aug. 13, 1997. The Board affirmed the administrative law judge's conclusion that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the union because of the alleged integration of the collective-bargaining unit employees with the employees of two other radio stations recently purchased by the respondent. No exceptions were filed to the judge's dismissal of the complaint allegation concerning the discharge of employee David Young.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by American Federation of Television and Radio Artists; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Seattle, Oct. 3-4, Dec. 2-3, 1996. Decision issued by Adm. Law Judge Burton Litvack, March 27, 1997.

* * *

Mod Interiors, Inc. (7-RC-20952; 324 NLRB No. 33) Detroit, Mich. Aug. 7, 1997. Contrary to the Acting Regional Director, a Board majority set aside the Dec. 12, 1996 election in which the tally was 4 for and 5 against Interior Systems Local 1045 (Carpenters), with 1 challenged ballot, an insufficient number to affect the results. Chairman Gould and Member Fox stated: "In these circumstances, where the original list contained a significant number of inaccurate addresses and the corrected list was only available to the Petitioner for 8 days before the election, we find that the Employer has not substantially complied with the Excelsior requirements. Accordingly, the election must be set aside and a new election directed. Dissenting, Member Higgins stated that he would not set aside the election because "(1) the only error was with respect to addresses, not names; (2) the error was not intentional or in bad faith; (3) the Employer acted promptly to secure and provide the correct addresses; (4) the Petitioner did not ask for a delay in the election; (5) the Petitioner had the accurate information for 8 days." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

American Red Cross (17-RC-18719, 17-RC-11370; 324 NLRB No. 23) Omaha, Nebr. Aug. 8, 1997. The Board affirmed the administrative law judge's bench decision which held that the respondent violated Section 8(a)(1) of the Act by announcing on the day before the union election a new policy providing employees with a 2-percent year-end bonus. "In so doing, we draw an inference of interference with employee free choice" in light of the evidence presented and the respondent's failure to establish a legitimate reason for the timing of the announcement, the Board stated. Thus, the Board ordered that the July 11, 1996 election, which the union lost, be set aside and that the regional director conduct a new election.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Local 554; complaint alleged violation of Section 8(a)(1). Hearing at Omaha, Feb. 19, 1997. Decision issued by Adm. Law Judge Lawrence W. Cullen, March 25, 1997.

* * *

Aiken Underground Utility Services (11-CA-16393; 324 NLRB No. 27) Aiken, S.C. Aug. 8, 1997. No exceptions were filed to the administrative law judge's decision that the respondent violated Section 8(a)(1) and (4) of the Act by denying employment to charging party Mildred Sanders and her sister Zerretta Cave because Sanders filed unfair labor practice charges against the Carpenters Union. The General Counsel excepted to the judge's failure to provide for the mailing of notices to employees. Citing Indian Hills Care Center, 321 NLRB 144 (1996), the Board modified the judge's order to include that notices be mailed to employees, a requirement that is routine when the record indicates that a respondent's facility has closed.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Mildred Sanders, an individual; complaint alleged violation of Section 8(a)(1) and (4). Hearing at Aiken, Jan. 29, 1997. Decision issued by Adm. Law Judge Robert C. Batson, April 16, 1997.

* * *

Lancet Arch, Inc. (3-CA-19579, 19770; 324 NLRB No. 28) Rochester, N.Y. August 8, 1997. The Board upheld the administrative law judge's conclusions that the respondent violated Section 8(a)(1) of the Act by threatening employees with loss of work if they signed a petition seeking wage increases, and violated Section 8(a)(1) and (3) by refusing to provide employment forms to applicants because of their union membership. The judge proposed ordering the respondent to affirmatively consider hiring the five affected union members. Members Fox and Higgins stated that "[i]n these specific circumstances, where the 8(a)(3) allegation was expressly restricted to the Respondent's failure to proffer employment applications, we have modified the Order and notice to delete the judge's additional 'consider for hire' language. Although we agree with the sentiments expressed by our dissenting colleague, we believe the Order must be tailored to the litigated violation. Of course, if the Respondent ... discriminatorily refuses to consider or hire the applicants, the Board stands ready to hear that violation on the filing and trial of meritorious charges." Dissenting on this point, Chairman Gould would adopt the judge's proposed Order and notice, stating that "requiring the Respondent to engage in the mere ministerial act of providing applications to the discriminatees does not remedy the violation. To make the remedy meaningful, the Respondent must provide applications and consider them on the same basis as other applicants."[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Bricklayers Local 11; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Rochester, June 4, 1996. Decision issued by Adm. Law Judge D. Barry Morris, Feb. 11, 1997.

* * *

AK Steel Corp. (9-CA-33261, 33272; 324 NLRB No. 24) Ashland, Ky. Aug. 8, 1997. Agreeing with the administrative law judge, the Board found that the respondent violated Section 8(a)(5) and (1) of the Act by unilaterally, without bargaining with the union, discontinuing its practice of allowing bargaining unit employees the option of using metatarsal guard safety shoes, and instead requiring their use; and violated Section 8(a)(5) and (1) by refusing to supply the union with information necessary for and relevant to the union's ability to determine whether to take action to protect jobs in the bargaining unit.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Steelworkers Local 1865; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Ashland, June 11, 1996. Decision issued by Adm. Law Judge Robert M. Schwarzbart, March 14, 1997.

* * *

Sanitary Fill Co. (20-CA-27139; 324 NLRB No. 21) San Francisco, Calif. July 31, 1997. The administrative law judge found, and the Board agreed, that the respondent did not violate Section 8(a)(3) and (1) of the Act when it terminated employee Humberto Garcia's training and refused to promote him to the position of long-haul driver. The judge concluded that these actions were not in retaliation for Garcia discussing matters with the Sanitary Truck Drivers and Helpers Union Local 350, but because of Garcia's attempt to use the fact of such training to set a precedent requiring the respondent to maintain a training program for any employee who wished to become a long-haul driver and because Garcia failed to meet the job requirements for long-haul driver.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Humberto Garcia, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Francisco, Oct. 31, 1996. Decision issued by Adm. Law Judge Earldean V.S. Robbins, Jan. 3, 1997.

* * *

Cincinnati Mailer's Union 1717 (S. Rosenthal & Company, Inc.) (9-CD-478; 324 NLRB No. 20) Cincinnati, Ohio July 31, 1997. The Board awarded the work beyond the saddle binder at the employer's Cincinnati, Ohio bindery plant, involving shrink wrapping and strapping of publications for the New York Lottery which are mailed to the customer, to Rosenthal's employees represented by Cincinnati Mailer's Union 1717 rather than to employees represented by Graphic Communications Local 508.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Circuit City Stores, Inc. (4-RC-18919; 324 NLRB No. 19) Richmond, Va. July 31, 1997. Chairman Gould and Member Fox agreed with the hearing officer that the employer's store manager, Robert Mainart, engaged in objectionable conduct warranting setting aside an October 12, 1996 election, when he distributed to unit employees coffee mugs bearing the slogans "Vote No" and "Just Vote No" beginning about 3 days before the election and continuing until the day of the election. Dissenting Member Higgins would find Mainart's conduct unobjectionable, overrule the union's objections, and certify the results of the election. Food and Commercial Workers Local 1776 lost the election 56-40.[TEXT] [PDF]

The hearing officer found that Mainart individually approached each employee, shook the employee's hand, asked the employee to vote no, and handed the employee a mug. Initially, the mugs did not contain employee names. Mainart later labeled the remaining mugs to keep track of which employees had not received one. Mainart distributed 80-90 mugs (70-75 with employee names on them).

Chairman Gould and Member Fox found that employees would reasonably believe that a refusal to accept the mug would be construed as a rejection of the employer's position in the campaign and that the names on the mugs, although not dispositive, added to the coerciveness of the employer's conduct. They found this case distinguishable from Jefferson Stores, 201 NLRB 672 (1973), relied on by the employer, in which the Board found the supervisory distribution of "vote no" cards not coercive.

In dissent, Member Higgins found that the employees were not required to make an observable choice because Mainart did not solicit their sentiments for or against the union and did not ask if they wanted a mug, but instead thrust it on them. He found that because mugs are not like hats, buttons, or other paraphernalia which are worn, employees would not, by subsequent conduct, be required to make an observable choice. Member Higgins believes that mugs are "akin to antiunion cards, literature, or other materials that are not designed to be worn, and which employers freely can distribute to employees without interfering with an election."

(Chairman Gould and Members Fox and Higgins participated.)

* * *

D&L Transportation, Inc. (34-RC-1396; 324 NLRB No. 31) Prospect, Conn. Aug. 7, 1997. A Board majority concluded, contrary to the Acting Regional Director, that the petitioned-for unit, limited to employees at the employer's Shelton, Connecticut terminal, is an appropriate unit. Chairman Gould and Member Fox stated:[TEXT] [PDF]

Although we agree with the Acting Regional Director that the Employer has common policies and procedures and centrally administers certain aspects of its operations, we disagree with his conclusion that the evidence regarding local autonomy, common skills and functions, interchange, and geographic proximity of the terminals is sufficient to rebut the single facility presumption.

The Board reinstated the petition and directed an election.

Dissenting, Member Higgins finds that the presumption in favor of the appropriateness of a single location unit has been rebutted. Member Higgins stated: "As the Acting Regional Director finds, the functional integration of the Employer's operation is so substantial as to negate the separate identity of the single facility unit (at Shelton) sought by the Petitioner."

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Syncor International Corp. (12-CA-17698, 17854; 324 NLRB No. 3) Pompano Beach, Fla. July 23, 1997. The Board, affirming the administrative law judge, held the respondent violated the Act by interrogating employees about their union membership and activities, by creating the impression that the union activities were under surveillance, and by threatening to make working conditions harder if the employees selected a union.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Local 769 and Jose Questall, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami and Pompano Beach, Fla., Nov. 21 and 22, 1996. Adm. Law Judge Raymond P. Green issued his decision Feb. 28, 1997.

* * *

Braun Electric Company, Inc. (31-CA-20842; 324 NLRB No. 2) Taft, Calif. July 21, 1997. Upholding the complaint, the Board ruled on a stipulated record the respondent violated the Act by threatening to initiate, initiating, and maintaining a lawsuit against Danny Kane, a full-time union business agent, in small claims court in retaliation for protected activity. [TEXT] [PDF]

The case arose in March 1994, when -- pursuant to the union's "salting" program -- Kane and several other individuals went to the respondent's office to submit employment applications. President John Braun refused to accept the applications because no positions were available. The respondent's practice was to accept applications only if a position was available. Kane videotaped the encounter.

In determining whether the lawsuit the respondent subsequently filed was retaliatory, the Board said it had to decide whether any conduct in which Kane and the other individuals engaged -- visiting the company's office to present employment applications, videotaping the employment application encounter, and filing an unfair labor practice charge -- constituted protected activity.

In finding the respondent's conduct unlawful, the Board stated:

Job applicants, including paid union organizers such as Kane, are considered employees under Section 2(3) of our Act, and are therefore entitled to the Act's protection. See NLRB v. Town & Country Electric, 116 S.Ct. 450 (1995). Thus, Kane was not deprived of protection under the Act while visiting the Company's office to present an employment application simply because he was a paid union organizer.

Kane and the other individuals who attempted to submit employment applications to John Braun were doing so pursuant to the Union's 'salting' program, i.e., they were attempting to organize the Respondent, and thus were engaged in protected Section 7 activity. Kane's videotaping was a way to document what occurred during the employment application encounter and did not cause the activity to lose the protection of the Act.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 428; complaint alleged violation of Section 8(a)(1).

* * *

Ohio Valley Hospital (8-CA-27877; 324 NLRB No. 6) Steubenville, Ohio July 24, 1997. Dismissing a complaint, the Board ruled on a stipulated record that the respondent's proposal to give seniority credit to unit employees hired after a layoff from the St. John Medical Center (SJMC) was a mandatory subject of bargaining because "it pertains solely to the terms and conditions of unit employees." Thus, the respondent's insistence to impasse over this proposal did not violate the Act as alleged. The issue arose after the respondent entered into an affiliation agreement with the nonunion SJMC and subsequently informed the union during negotiations that a consolidation of services might result in some nurses getting laid off.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by the Ohio Nurses Association; complaint alleged violation of Section 8(a)(5) and (1).

* * *

Operating Engineers Local 3 (Kiewit Pacific Co.) (37-CB-1253, 1262; 324 NLRB No. 4) Kapolei, Hawaii July 24, 1997. Upholding a bench decision by the administrative law judge, the Board found the union unlawfully denied the charging party's request for photo copies of the respondent's out-of-work lists. The judge stated: "A union violates Section 8(b)(1)(A) when it arbitrarily denies a member's request for job referral information when that request is reasonably directed toward ascertaining whether the member has been fairly treated with respect to obtaining job referrals."[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Cynthia Albert, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Honolulu, Feb. 27, 1997. Decision issued by Adm. Law Judge Michael D. Stevenson, March 20, 1997.

* * *

Laborers Local 703 (Midwest Laboratory Installations) (33-CD-391; 324 NLRB No. 16) Champaign-Urbana, Ill. July 28,1997. The Board decided that employees of Midwest Laboratory Installations, Inc. represented by Carpenters Local 44, rather than those represented by Laborers Local 703, are entitled to perform the handling and cleanup work involved with the installation of cabinets and equipment at the University of Illinois Newmark Lab in Champaign-Urbana, Illinois. In making its determination, the Board relied on the employer's collective-bargaining agreement with the Carpenters which specifically covers the installation of cabinets and the handling of all materials involved in the installation, the employer's preference and past practice, relative skills, and economy and efficiency of operations. Regarding the latter factor, the Board noted that the employer does not employ Laborers, that the disputed work is a very small portion of the work being performed, and that the work is done on an irregular basis for short periods of time. The Board stated: "Consequently, the Employer would incur superfluous costs by hiring laborers to perform the work in dispute while retaining its carpenters to perform other traditional work assignments."[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

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Retlaw Broadcasting Company, a subsidiary of Retlaw Enterprises, Inc., d/b/a KJEO-TV (32-CA-13537-1, et al.; 324 NLRB No. 18) Fresno, Calif. July 29, 1997. The Board upheld the administrative law judge's conclusions that the employer violated Section 8(a)(5) and (1) of the Act by bargaining to impasse concerning a nonmandatory subject (personal service contracts (PSCs)), negotiating PSCs with unit employees when there was no valid impasse in bargaining, unilaterally granting merit wage increases to unit employees, and denying the union's request for information about unit employees' PSCs. The Board noted it has previously rejected the arguments of other employers in the broadcasting industry and raised by the employer here--i.e., that the disclosure of similar wage information would violate employee confidentially and privacy interests.[TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by American Federation of Television and Radio Artists; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Fresno on May 26, 1994. Adm. Law Judge William J. Pannier III issued his decision Dec. 30, 1994.

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Flamingo Hilton-Laughlin (28-CA-12260 and 28-RC-5105; 324 NLRB No. 14) Laughlin, Nev. July 29, 1997. The Board affirmed, with one exception, the administrative law judge's decision that the employer violated Section 8(a)(3) and (1) of the Act in numerous respects and dismissed the allegation that William Sherlock, the respondent's then new president, unlawfully promised benefits in his election eve speech to employees on July 4, 1993, finding that Sherlock's statement was protected by Section 8(c). The unfair labor practices found included restricting work area movement of employees in and around the facility; threatening employees with discharge, loss of benefits, and unspecified reprisals if they selected the Steelworkers as their bargaining representative; threatening employees with violence at the hands of another labor organization; and creating the impression among employees that it favored the Culinary Workers Union over the Steelworkers. Member Higgins disagreed with the latter finding, noting that "[a]n employer has an 8(c) right to express such a preference."[TEXT] [PDF]

In affirming the judge's finding that the employer's unlawful conduct warranted the imposition of a bargaining order remedy in each unit (hotel employees and slot department employees), the Board "highlighted" two points. First, that the employer's unlawful screening of job applicants began during the preelection period and continued for many months after the July 6, 1993 election despite a 10(j) injunctive order issued by the Nevada district court on July 29, 1994. Second, that corporate executives who were involved in the respondent's unlawful campaign against the union are still employed by the respondent. Although the Board agreed that the continued employment of corporate vice president Jim Anderson undercut the respondent's management turnover defense, it did not rely on the judge's discounting of the effects of the unlawful threats, solicitation, or interrogation or the judge's analysis to the extent that he imposed a negative connotation on the respondent's lawful video presentations.

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Bullhead City, Ariz. on 67 days between May 17, 1994 and May 10, 1995. Adm. Law Judge David G. Heilbrun issued his decision April 25, 1996.

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Aurora Fast Freight, Inc. (13-RC-19417; 324 NLRB No. 5) Aurora, Ill. July 24, 1997. Citing Bank of America, 174 NLRB 101 (1969) (a segment of an employer's office clerical employees is not an appropriate unit), the Board agreed with the regional director that the unit sought by the petitioner Teamsters Local 673 is inappropriate. However, the Board disagreed with the regional director that a unit limited to employees in the general office is appropriate, finding instead that in the particular circumstances of this case, the only appropriate unit includes employees in both the general and dispatch offices. Relying on Action Automotive, 469 U.S. 490 (1985), the Board found that, even though there was no showing of special status or treatment by the employer, dispatch office data clerk Joe Hartman, the son of the vice-president of operations and a 40% shareholder and the nephew of the president and majority shareholder, should be excluded from the unit because of his close relationship with shareholders actively involved in managing the company and the small number of employees. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

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Children's Farm Home (36-RC-5570; 324 NLRB No. 13) Corvallis, Ore. July 25, 1997. Relying on Providence Hospital, 320 NLRB 717 (1996), and Ten Broeck Commons, 320 NLRB 806 (1996), a Board majority affirmed the regional director's determination in his Second Supplemental Decision that the employer did not sustain its burden of proving that its treatment team leaders (TTLs) are statutory supervisors. In addition to the regional director's finding that the asserted statutory authority to discipline employees was insufficient to establish supervisory status, the majority noted that the employer did not show that two warnings of "further disciplinary action including immediate termination" by one TTL affected the subject employee's job status or constituted evidence that the TTL possessed the authority to discipline within the meaning of Section 2(11). Contrary to the dissent, the majority affirmed the regional director's determination that the employer did not show that the TTLs use independent judgment in evaluating employees or make effect recommendations regarding merit increases. [TEXT] [PDF]

Dissenting, Member Higgins concludes, in part, that the TTLs are statutory supervisors because "[a]lthough TTLs may not be obligated to evaluate employees, the significant point from the standpoint of Section 2(11), is that they have the authority to do so." In addition, he stated: "My colleagues also argue that the recommendations [to give merit increases] are not effective. The fact that a deciding official independently thinks about a recommendation does not mean that it is not an effective one."

(Chairman Gould and Members Fox and Higgins participated.)

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Visiting Nurses Association of Central Illinois (33-RC-4087; 324 NLRB No. 8) Springfield, Ill. July 25, 1997. The Board affirmed the regional director's decision and direction of election and his finding that the petitioned-for unit of the employer's registered nurses (RNs) constitutes an appropriate unit. In so doing, the Board found it unnecessary to determine whether the regional director was correct in finding that the employer (VNA) and Memorial Medical Center (MMC) are not single employers. The Board stated: "Even if the Employer and MMC are a single employer, we find ... that the petitioned-for single facility healthcare unit is presumptively appropriate; that the Employer has failed to meet its burden to overcome the presumption; and that therefore, the petitioned-for, single-location unit of the Employer's RNs is appropriate for bargaining." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Dayton Hudson Department Store Co. ( 7-CA-34877; 324 NLRB No. 1) Detroit, Mich. July 25, 1997. In this factually unusual case, the administrative law judge found and the Board agreed, that the respondent violated Section 8(a)(3) and (1) of the Act by discharging Violet Ryan, who was not in the unit that the union (UAW) sought to organize and who was personally opposed to the union. As the Board stated: "The conduct for which she was discharged was her performance of a work task that was unrelated to any union activity. Despite this, Ryan was discharged because the Respondent perceived that Ryan, in the performance of her regular job duties, unwittingly assisted the Union. *** Thus, in the literal words of the statute, the Respondent discharged Ryan in order to 'discourage' employees from joining the Union and from reinvigorating the moribund union campaign. *** We perceive no difference in principle from the Respondent's action here and an employer's discharging an employee and telling him that it is doing so to make it clear to him (and anyone the employee cares to tell) that the employer has power over its employees' jobs and that they act at their peril in doing anything to instigate or support a union campaign. It seems unquestionable that the latter action would violate Section 8(a)(3), regardless of the union sentiments of the discharged employee." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Violet Darlene Ryan, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, Jan. 24-25, 1994. Decision issued by Adm. Law Judge John H. West, April 24, 1994.

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Feldkamp Enterprises, Inc. (9-CA-33047, et al.; 323 NLRB No. 206) Cincinnati, Ohio July 11, 1997. The Board held that the administrative law judge correctly found that the respondent violated Section 8(a)(1) of the Act by, inter alia, interrogating employees, promising benefits, promulgating and enforcing a no-solicitation rule, impliedly promising Ray Fraley a pay raise and then withholding it on condition that he withdraw his union support, threatening an employee with loss of employment for himself and family members if he continued to support the union, and making an employee remove his hard hat bearing a union label and replacing it with one bearing the respondent's emblem. In addition, the Board agreed with the judge's findings that the respondent violated Section 8(a)(3) and (1) by warning Fraley not to discuss union matters during his nonworking time and warning and then discharging Hayes Steel because of his union support. The Board upheld the judge's finding that the respondent did not violate Section 8(a)(1) as alleged by engaging in surveillance during or immediately after a union meeting. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Sheet Metal Workers Local 24; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Cincinnati, May 6-8, 1996. Decision issued by Adm. Law Judge Arline Pacht, Dec. 30, 1996.

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Regional Import and Export Trucking Co., Inc., et al. (22-CA-14582, 22-CB-5544; 323 NLRB No. 214) Jersey City, N.J. July 11, 1997. In this Second Supplemental Decision and Order, the Board upheld the administrative law judge's conclusions that the payments made by the Respondent Employers pursuant to an arbitration award should be offset against the Respondent Employers' share, and not the Respondent Union's (Teamsters Local 807) share, of the amounts owed pursuant to the Board's Order in the underlying unfair labor practice case, Regional Import Trucking Co., 292 NLRB 206 (1988), enfd. 914 F.2d 244 (3d Cir. 1990). In so finding, the judge rejected the Respondent Union's argument that its backpay liability should be offset by the payments made by the Respondent Employers pursuant to the arbitration award because of the Respondent Union's efforts in obtaining that arbitration award. [TEXT] [PDF]

In its exceptions, Teamsters Local 807 reiterates its contention that one or more of its four alternative offset methods should be adopted by the Board. The Board stated: "...[W]e find the Respondent Union's exceptions to be without merit. In its exceptions, the Respondent Union asserts that its alternative offset methods are not inconsistent with the Board's past decisions in this case. We disagree. In the underlying unfair labor practice case, the Board found, inter alia, that the Respondent Union should be jointly and severally liable for the losses to the discriminatees, along with the Respondent Employers, because its breach of its duty of fair representation contributed to the discriminatees' loss of pay. That Order was enforced by the United States Court of Appeals for the Third Circuit. Here, the Respondent Union's proposed offset methods (1) and (2) are, in effect, an attempt to modify the Board's Order and absolve the Respondent Union of its backpay liability. The Board and the Court of Appeals for the Third Circuit rejected that argument in the underlying case and we reject it again now."

Teamsters Local 807 also argued that because of its effort and money spent pursuing the arbitration award, it should receive credit for the amounts obtained as a result of those efforts. The Board rejected this argument and stated: "In sum, the Respondent Union was on notice, on the basis of our previous refusals to defer the issues in this case to arbitration, that we contemplated determining joint and several liability through our own processes under our remedial order. Our reasons for refusing to defer were stated in those decisions and we adhere to them. The Respondent Unions' joint and several liability was based on the unusual circumstances of this case in which the Respondent Unions' violation of the Act involved more than merely a failure to represent employees fairly in the face of unlawful employer actions; it involved affirmative acts by the Respondent Union to undercut the employees' interests. *** We do not agree, however, that the Respondent Union should be allowed to reduce its own 'joint' liability by subtracting all or part of the Respondent Employers' payments from the half of the total amount which the Respondent Union is properly obligated to pay. Accordingly, we adopt the judge's finding that the Respondent Unions' liability is, in the first instance, half of the total liability as set forth in the Third Amended Specification."

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Fernando Sanches, an individual, and Teamsters Local 819, Party in Interest; hearing at Newark, Dec. 12, 1996. Supplemental Decision issued by Adm. Law Judge Raymond P. Green, March 31, 1997.

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Walz Masonry, Inc. (17-CA-18092; 323 NLRB No. 216) Omaha, Neb. July 16, 1997. Affirming the administrative law judge, the Board agreed that the respondent violated Section 8(a)(1) and (3) of the Act when it refused to consider for employment 10 applicants because of their union affiliation and when it failed and refused to hire 6 of the 10 discriminatees. The Board rejected the respondent's contention that the General Counsel's introduction of an allegedly inaccurate tape recording of the events in question undermined the judge's credibility resolutions. In amending the remedy, the Board stated that the judge's "uncontradicted and unexcepted to finding that job applications were active for 30 days and that six laborers were hired during the time the discriminatees' applications would have been active, we agree with the judge's recommendation to limit the reinstatement and backpay remedy to only 6 of the 10 alleged discriminatees and with his decision to leave the determination of which 6 are to be offered employment and backpay to the compliance stage." The remedy also was modified in accordance to Dean General Contractors, 285 NLRB 573 (1987). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Laborers' Local 1140; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Omaha, Neb. and Council Bluffs, Iowa, Nov. 5-6, 1996. Decision issued by Adm. Law Judge Martin J. Linsky, Jan. 29, 1997.

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Dynatron/Bondo Corporation (10-CA-25736, et al.; 323 NLRB No. 217) Atlanta, Ga. July 16, 1997. The Board affirmed the administrative law judge's findings and conclusions, including, inter alia, his finding that the respondent violated Section 8(a)(5) of the Act by discontinuing its practice of granting merit increases to employees after the Board ordered the respondent to bargain with the union. The Board stated: "We find that the Respondent had an established 'pattern and practice' of granting increases based on merit, and we find that the employees have come to view these increases as fixed terms and conditions of employment. Daily News of Los Angeles, 315 NLRB 1236 (1994), enfd. 73 F.3d 406 (D.C. Cir 1996). We base this conclusion on the following factors: (1) the sole, fixed criterion for granting a raise was merit; (2) the timing of the increases was fixed at the end of an employee's 90-day probationary period and annually thereafter at the employee's anniversary date; (3) the amount of the raises, although discretionary, fell within a narrow range; (4) the majority of eligible employees, in fact, received such raises; and (5) the increases had been granted over a significant period of time." Citing Garrett Flexible Products, 276 NLRB 704 (1985), the Board agreed with the judge's finding that the respondent violated Section 8(a)(5) by unilaterally increasing unit employees' contributions to group health insurance premiums after the union was certified. The Board stated that "...[I]n the absence of a past practice and in light of the Respondent's substantial discretion, we find that the Respondent violated Section 8(a)(5) when it did not bargain with the Union about increasing employees' contributions to their health insurance program." Other violations of Section 8(a)(1), (3), and (5) were upheld by the Board without discussion. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by UNITE; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Atlanta, Dec. 18, 1995 and March 4-5, 1996. Decision issued by Adm. Law Judge Howard I. Grossman, June 28, 1996.

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Sartorius, Inc. (24-CA-7248, et al.; 323 NLRB No. 213) Yauco, P.R. July 17, 1997. Affirming the administrative law judge, the Board held that the employer violated the Act by unlawfully discharging an employee in reprisal against her protected union activities, by unilaterally eliminating a bargaining unit position (group leader in the flat filters department), and by implementing a wage increase. In its finding about eliminating the position, the Board relied on Intermountain Rural Electric Assn., 305 NLRB 783, 786 (1991). [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Sindicato Puertorriqueno de Trabajadores; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Hato Rey, P. R., Oct. 1-3, 1996. Adm. Law Judge William N. Cates issued his decision on Feb. 4, 1997.

* * *

Indio Grocery Outlet (21-CA-30424, 30614; 323 NLRB No. 196) Indio, Calif. June 30, 1997. On a stipulated record, the Board found that by threatening to have representatives of Food and Commercial Workers Local 1167 arrested if they did not cease picketing and distributing union-related literature on the Respondent's premises; by requesting police officers to arrest such representatives for engaging in these activities; and by attempting to cause and/or causing police officers to arrest Union Representative Joseph Duffle because he refused to cease picketing and distributing union-related literature on the Respondent's premises, the Respondent violated Section 8(a)(1) of the Act. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Food and Commercial Workers Local 1167; complaint alleged violation of Section 8(a)(1).

* * *

Clock Electric, Inc. (8-CA-26560, 26646; 323 NLRB No. 211) Cleveland, Ohio July 14, 1997. The administrative law judge found, and the Board agreed, that the respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire applicants Richard Crumbley and James Embrescia because of their union support, and violated Section 8(a)(1) by engaging in photographic surveillance of protected concerted employee picketing. In addition, the judge dismissed an alleged Section 8(a)(4) violation to which no exception was filed. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers (IBEW) Local 38; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Cleveland, Sept. 12-13, and Oct. 8, 1996. Decision issued by Adm. Law Judge C. Richard Miserendino, March 27, 1997.

* * *

SAS Electrical Services, Inc. (5-CA-24688; 323 NLRB No. 212) Herndon, Va. July 14, 1997. The administrative law judge found, with Board approval, that the respondent violated Section 8(a)(5) and (1) of the Act by failing to honor the collective-bargaining agreement with the union; making unilateral changes to the wages, hours and working conditions; refusing to furnish the union with certain information; and dealing directly with employees. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Electrical Workers (IBEW) Local 26; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Washington, D.C., July 24-26 and Sept. 26, 1995. Decision issued by Adm. Law Judge Nancy M. Sherman, Sept. 19, 1996.

* * *

Johnson Freightlines (28-CA-12932; 323 NLRB No. 205) Phoenix, Ariz. July 14, 1997. In accordance with the administrative law judge, the Board found that the respondent violated Section 8(a)(3) and (1) of the Act by discharging 4 employees because of their union activities, and violated Section 8(a)(1) by threatening an employee with unspecified reprisals because of his union activities through its agent, Johnson. The Board found no merit in the respondent's argument, among others, that the General Counsel "bribed" witnesses by withholding their settlement checks until after they testified. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Teamsters Local 104; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Phoenix, May 23-25, June 13-16, Aug. 15-17, 1996. Decision issued by Adm. Law Judge Michael D. Stevenson, April 18, 1996.

* * *

Food Mart Eureka, Inc. (20-CA-26545-1, -2; 323 NLRB No. 218) Eureka, Fortuna, and McKinleyville, Calif. July 18, 1997. The Board affirmed the administrative law judge's finding that the General Counsel failed to establish that employees Schmidt and Schilowsky were supervisors within the meaning of Section 2(11) of the Act, and accordingly dismissed the complaint. "Even if Schilowsky were a supervisor," the Board stated, "the record contains no evidence that the respondent encouraged, authorized, ratified, or in any way acted in a manner that would lead employees reasonably to believe that Schilowsky was acting on its behalf in circulating and soliciting signatures on the antiunion petition at issue." [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charges filed by Food and Commercial Workers Local 101; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Eureka on Oct. 24-26, 1995. Adm. Law Judge Frederick C. Herzog issued his decision on March 7, 1997.

* * *

Hillhaven Kona Healthcare Center (27-RC-7659 (Formerly 37-RC-3724) and 27-RC-7660 (Formerly 37-RC-3725); 323 NLRB No. 202) Kailua-Kona, Hawaii July 7, 1997. The Board concluded, contrary to the Acting Regional Director, that the employer's licensed practical nurses (LPNs) and registered nurses (RNs) are statutory supervisors within the meaning of Section 2(11) of the Act because of their role in preparing evaluations of certified nursing assistants (CNAs) that directly affect the CNAs' employment status. The Board reversed the Acting Regional Director's decision in which he found that a separate technical unit consisting of LPNs was appropriate, vacated the direction of election in Case 27-RC-7660, and remanded the case to the Regional Director for further appropriate action. By order dated June 6, 1996, the Board granted the employer' s request for review of the Acting Regional Director's decision solely with respect to the finding that the LPNs' and RNs' role in preparing the CNA's evaluations did not establish supervisory authority. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

* * *

Teamsters Local 1150 (Sikorsky Aircraft) (34-CB-1927; 323 NLRB No. 210) Stratford, Conn. July 9, 1997. The Board upheld the administrative law judge's decision that the respondent violated Section 8(b)(1)(A) and (2) of the Act by requesting and causing the discharge of Don A. Dalonzo, an agency fee payer, without informing him of his agency fee delinquency, and providing him with an opportunity to pay the delinquency. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Don A. Dalonzo, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Hartford on Aug. 26, 1996. Adm. Law Judge Steven Davis issued his decision Nov. 22, 1996.

* * *

Public Service Electric and Gas Company (4-CA-22519; 323 NLRB No. 204) Hancocks Bridge, N.J. July 11, 1997. The Board held, in agreement with the administrative law judge, that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide Electrical Workers IBEW Local 1576 with requested relevant and necessary information. The union sought information regarding the respondent's relationship with independent contractors Bartlett Nuclear and NSS Numanco because it believed that the respondent was supplementing its staff with individuals supplied by Bartlett and NSS in order to avoid paying contractual benefits to the individuals. [TEXT] [PDF]

(Chairman Gould and Members Fox and Higgins participated.)

Charge filed by Electrical Workers IBEW Local 1576; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia, Oct. 15-16, 1996. Adm. Law Judge George Aleman issued his decision Jan. 28, 1997.