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NLRB - National Labor Relations Board |
Recent Decisions of the
National Labor Relations Board
1998 January-June
(Members Fox, Hurtgen, and Brame participated.)
Charges filed by UNITE, and Iris Almanzar and Cecelia Salcedo, individuals; complaints alleged violations of Section 8(a)(1), (3), and (4). Hearing held at New York, N.Y., on six days between Sept. 25, 1996 and Jan. 31, 1997. Decision issued by Adm. Law Judge Eleanor MacDonald, Nov. 25, 1997.
* * *
Monarch Marking Systems, Inc. (9-CA-34406; 325 NLRB No. 194) Miamisburg, Ohio June 30, 1998. Affirming the administrative law judge's conclusions, the Board held that the Respondent discharged W. Stramm in violation of Section 8(a)(3). The Board also upheld the judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1) by its enforcement of a no-solicitation/no-distribution rule, and coerced and threatened an employee for wearing a union badge. [TEXT] [PDF]
(Members Fox, Liebman, and Brame participated.)
Charge filed by Teamsters Local 957; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cincinnati, April 14, 1997. Decision issued by Adm. Law Judge James L. Rose, July9, 1997.
* * *
AgriGeneral L.P. (8-RC-15554; 325 NLRB No. 181) Mount Victory, Ohio June 30, 1998. Citing Camsco Produce, 297 NLRB 905 (1990), the Board held, in agreement with the Regional Director, that the Employer failed to satisfy its burden of proving that the production and maintenance employees in the petitioned-for bargaining unit are agricultural laborers excluded from the coverage of the Act under Section 2(3), i.e., that the unit employees do not regularly handle or come into contact with eggs received from outside producers. The Board disagreed with the Regional Director's further determination that under Camsco and Cal-Maine Farms, 307 NLRB 450 (1992), enfd. 998 F.2d 1336 (5th Cir. 1993), allegations that individuals are agricultural laborers need not be analyzed on a classification-by-classification basis. The Board affirmed the Regional Director's decision and direction of election and remanded the case for further appropriate action. [TEXT] [PDF]
(Chairman Gould and Members Fox and Liebman participated.)
* * *
Madison Square Garden (34-RC-1565; 325 NLRB No. 180) Hartford, Conn. June 30, 1998. Members Fox and Liebman denied the Employer's request for review of the Regional Director's decision and direction of election as it raised no substantial issues warranting review. Member Hurtgen, dissenting, would grant review with respect to whether event staff employees are statutory guards. The Employer manages and presents exhibitions, concerts, and sporting events at the Hartford Civic Center. AFSCME Council 4, which currently represents the Employer's faculty workers at the Civic Center, seeks to represent a unit composed of approximately 100 event staff employees. The sole issue presented for review is whether the Regional Director erred in finding that the petitioned-for event staff employees, who are assigned interchangeably to duties as ticket takers, ushers, inspectors, and "guards," are not guards within the meaning of Section 9(b)(3) of the Act. [TEXT] [PDF]
(Members Fox, Liebman, and Hurtgen participated.)
* * *
Cleveland Construction, Inc. (9-CA-34591; 325 NLRB No. 196) Charleston, W. Va. June 30, 1998. The Board upheld the administrative law judge's conclusion that the Respondent violated the Act by discharging carpenters Dewey Bruce Murphy, Raymond DeNuzzo, and Michael George because of their protected concerted strike to protest the Respondent's failure to provide them with adequate safety protection. No exceptions were filed regarding the various 8(a)(3) and (1) allegations dismissed by the judge that the Respondent embarked upon a plan to get rid of the three employees after they revealed their union status to management. Carpenters Local 1207 recruited the employees to obtain jobs at the nonunion hotel construction project in Charleston and simultaneously organize the employees. [TEXT] [PDF]
(Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Carpenters Local 1207; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Charleston, July 22-23, 1997. Adm. Law Judge Jerry M. Hermele issued his decision Nov. 21, 1997.
* * *
Eye Weather, Sole Proprietorship (16-CA-18583; 325 NLRB No. 183) Wink, Texas June 30, 1998. The administrative law judge found, with Board approval, that the Respondent, a successor employer, violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Service Employees Local 100. The Board noted that the Respondent employed at the least a substantial and representative complement of unit employees at the time it began its operations. Also, the Board ruled that "the Respondent is barred by Section 10(b) of the Act from attacking the validity of the predecessor employers' relationships with the Union because such a defense relied on alleged events that occurred outside the 10(b) period." In exceptions, the Respondent contended that it had no bargaining obligation because the relationship between the union and the predecessor employers was tainted by another contractor about 6 years earlier based on authorization cards solicited by a supervisor. [TEXT] [PDF]
(Members Liebman, Hurtgen, and Brame participated.)
Charge filed by Service Employees Local 100; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Odessa on Sept. 2, 1997. Adm. Law Judge Richard J. Linton issued his decision March 2, 1998.
* * *
E.J. Alrich Electrical Contractors, Inc. (22-CA-20796; 325 NLRB No. 193) Ringwood, N.J. June 30, 1998. The Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish Electrical Workers IBEW Local 269 with requested information about Respondent's relationship with another company to verify its reasonable belief that the two companies might be alter egos. [TEXT] [PDF]
(Chairman Gould and Members Liebman and Brame participated.)
Charge filed by Electrical Workers IBEW Local 269; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, Feb. 10 and Sept. 29, 1997. Adm. Law Judge Joel P. Biblowitz issued his decision Nov. 14, 1997.
* * *
Laborers' District Council of West Virginia (Michael, Inc.) (6-CD-916; 325 NLRB No. 197) Bridgeport, W. Va. June 30, 1998. The Board awarded all piping and related work at the Clarksburg Waste Water Treatment Plant to employees of Michael, Inc. represented by Laborers District Council of West Virginia rather than to those employees represented by Plumbers Local 152. Chairman Gould and Member Fox found, contrary to the Plumbers' contention, that Laborers (Capitol Drilling Supplies), 318 NLRB 809 (1995), is distinguishable. In Capitol Drilling, the Board held that a union's action through a grievance procedure to enforce an arguably meritorious claim against a general contractor that work has been subcontracted in breach of a lawful union signatory clause does not, without more, constitute a claim to the subcontractor for the work. The Board quashed the notice of 10(k) hearing because the union which filed the grievance had never engaged in any dispute with the subcontractor. Chairman Gould and Member Fox noted that here there is no subcontractor involved and both the Plumbers and the Laborers have made competing claims to the Employer for the work. Member Hurtgen did not pass on the validity of Capitol Drilling. [TEXT] [PDF]
(Chairman Gould and Members Fox and Hurtgen participated.)
* * *
Superior Welding, Inc. (14-CA-24709; 325 NLRB No. 189) Robinson, Ill. June 30, 1998. The administrative law judge, with Board concurrence, dismissed complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging John Griffin; violated Section 8(a)(1) by threatening employees that its facility would close if employees were represented by a union; and violated Section 8(a)(1) by authorizing a poll to determine its employees' union sympathies. [TEXT] [PDF]
(Members Liebman, Hurtgen, and Brame participated.)
Charge filed by Indiana State Pipe Trades Association and Plumbers Local 157; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Robinson, Ill., Jan. 6, 1998. Decision issued by Adm. Law Judge Arthur J. Amchan, March 27, 1998.
* * *
Peter O'Dovero d/b/a Associated Constructors and O'Dovero Construction, Inc. (30-CA-13325; 325 NLRB No. 187) Marquette, Mich. June 30, 1998. The administrative law judge found that the Respondents, Associated and O'Dovero, are a single employer and that they violated Section 8(a)(1), (3), and (5) of the Act in numerous ways. In particular, the judge found that the cessation of O'Dovero's operations itself and the Respondents' failure to bargain over that decision were not unlawful. Chairman Gould and Member Fox agreed with the judge on all issues except for those arising from the alleged termination of O'Dovero's operations. The majority stated: "We are unable to fully agree with either the judge, the General Counsel, or the Respondents." Based on the evidence presented, they found that the record did not support the finding that O'Dovero actually ceased operations, even after the completion of a construction project referred to as the Caspian project. They stated: "The most that can be said in this regard is that, after unlawfully diverting the work on the Caspian project to employees of Associated, the Respondents temporarily stopped doing the kind of work traditionally performed by O'Dovero employees. There is no evidence that either or both of them could not resume such work in the future." Chairman Gould and Member Fox found that as part of the remedy for the Respondents' unlawful diversion of work, the Respondents should be required to resume the operations of O'Dovero. They noted that the Order does not prohibit the Respondents from abandoning any operations, or from declining to bid on projects, for legitimate business reasons. "Thus, we are not requiring them to engage in unprofitable operations; we are simply ordering them not to make work assignment decisions based on antiunion animus," they said. [TEXT] [PDF]
Member Hurtgen, dissenting, agreed with his colleagues that the Respondent violated the Act by unlawfully diverting work from O'Dovero to Associated during the Caspian project, but disagreed with the majority with respect to events after the Caspian project. He agreed with the judge that the Respondent partially went out of business after the Caspian project when it stopped bidding on union construction jobs. "In sum, the decision did not focus on the Associated employees at all. It was entirely directed to the dissolution of the O'Dovero unit. Accordingly, a violation is not established under the Darlington test," he stated.
(Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Operating Engineers IUOE Local 324; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Ishpeming, Mich., May 27-28, 1997. Decision issued by Adm. Law Judge William G. Kocol, Sept. 2, 1997.
* * *
Cast North America (Trucking) LTD (7-RC-21058; 325 NLRB No. 184) Detroit, Mich. and Chicago, Ill. June 30, 1998. The Board considered objections to an election where the tally of ballots shows 33 for the Petitioner, Teamsters Local 299, and 29 for the Intervenor, Chicago Truck Drivers, Helpers and Warehouse Workers Union, with no challenged ballots and no ballots against both labor organizations. In its objections, the Intervenor alleged that five eligible employees were not given the opportunity to vote. The employer joined in the objections and contended that the Petitioner's refusal to enter into a stipulation for a mail ballot election caused the employees to miss the opportunity to vote. [TEXT] [PDF]
Members Liebman and Brame adopted the hearing officer's findings and recommendations and found that a certification of representative should issue. Specifically, they agreed with the hearing officer that employees Zanazaro and Craig had the opportunity to vote during the morning session and that their choosing not to vote does not warrant setting aside the election. Further they determined that only employees Wright and Walinski were prevented from voting by the conduct of the Employer, and because these two ballots were not determinative the inability for these employees to vote does not warrant setting aside the election, citing Sahuaro Petroleum & Asphalt Co., 306 NLRB 586 (1992). Chairman Gould, dissenting, would sustain the objections filed by the Employer and Intervenor and set aside the election on two grounds: (1) the Regional Director's refusal to conduct the election by mail, and (2) the hearing officer's failure to find that a determinative number of voters were deprived of an opportunity to vote in the manual election.
(Chairman Gould and Members Liebman and Brame participated.)
* * *
Sundance Construction Management, Inc. (27-CA-13549; 325 NLRB No. 188) Boise, Idaho June 30, 1998. The Board reversed the administrative law judge's decision to dismiss the complaint in its entirety and found that the Respondent violated Section 8(a)(1) of the Act through Supervisors Dan Jafek and Dan Weatherbie when they interrogated George Maxwell about his union activity and when Weatherbie told Maxwell that he was disappointed in Maxwell's participation in protected activity and the suggested that Maxwell should have been at work instead. No exceptions were filed to the judge's failure to make specific findings concerning the complaint allegation that supervisor Pearce unlawfully interrogated Maxwell on November 4, 1994. In affirming the judge's dismissal of Section 8(a)(1) allegations concerning threatening picketing employees with arrest and issuing a warning to and threatening employee Maxwell with layoff, the Board noted that the Respondent did not conduct a poll of its employees' union sentiments and therefore did not rely on the judge's analysis of Operating Engineers Local 49 v. NLRB (Struksnes Construction Co.), 353 F.2d 852 (D.C. Cir. 1965), on remand 165 NLRB 1062 (1967). [TEXT] [PDF]
(Chairman Gould and Members Fox and Liebman participated.)
Charge filed by Boise Carpenters; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Boise, Aug. 6-9, 1998. Adm. Law Judge Frederick C. Herzog issued his decision April 18, 1997.
* * *
Simcala, Inc. (15-CA-14060-1; 325 NLRB No. 191) Mount Meigs, Ala. June 30, 1998. The Board affirmed the administrative law judge's decision that the employer violated Section 8(a)(1), (3), and (4) of the Act by suspending and thereafter discharging Thomas Hatfield because of his activities for the Steelworkers District 9 and because the union filed an unfair labor practice charge on his behalf. The Board did not find that the Respondent failed to follow the contractual procedure for hearings on suspensions prior to discharge and relied instead on the judge's unexcepted-to finding that the Union was not required to obtain prior permission before posting items involving union business on the break room bulletin board. Thus, it found that the Respondent's asserted reason for discharging Hatfield, i.e., because of his insubordinate refusal to remove the unauthorized postings, to be clearly pretextual. [TEXT] [PDF]
(Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Steelworkers District 9; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Montgomery, Sept. 8-9, 1997. Adm. Law Judge Howard I. Grossman issued his decision March 13, 1998.
* * *
Consumers Energy Company and Michigan State Utility Workers Council (7-CA-37934 and 7-CB-10768; 325 NLRB No. 178) Jackson, Mich. June 26, 1998. The Board affirmed the administrative law judge's recommendation and dismissed a complaint alleging that the Respondents violated the Act by negotiating and maintaining an amendment to the company's pension plan under which the pension credits for full-time union officers exceed those for union-represented employees, who are not on authorized leave of absence to serve as union officers. The Board noted the General Counsel's failure to establish that the pension credits given to those holding full-time union office actually placed them at an advantage with respect to retirement benefits, and thereby encouraged union activism. [TEXT] [PDF]
(Chairman Gould and Members Fox and Liebman participated.)
Charges filed by Vincent F. Gulli, an individual; complaint alleged violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2). Hearing at Detroit on March 5, 1997. Adm. Law Judge Irwin H. Socoloff issued his decision Aug. 1, 1997.
* * *
Black Bear Mining, Inc. (9-CA-34413; 325 NLRB No. 177) Logan County, W. Va. June 25, 1998. The Board granted the General Counsel's motion for summary judgment and found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to comply with the health insurance benefits provision of its collective-bargaining agreement with the Mine Workers without the union's consent. The Board found that all material allegations of the complaint are true and that the Respondent is obligated to pay the amounts of medical expenses set forth in the compliance specification because the Respondent raised no defense and admitted its obligation to pay the amounts alleged. [TEXT] [PDF]
(Members Fox, Liebman, and Hurtgen participated.)
Charge filed by the Mine Workers; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment May 1, 1998.
* * *
J.R.T.S. Limited, Inc. (12-RC-8129; 325 NLRB No. 179) Brandon, Fla. June 30, 1998. The Board certified the United Transportation Union as the exclusive collective-bargaining representative pursuant to a tally of ballots which showed 88 for and 54 against the union, with 11 challenged ballots, an insufficient number to affect the results. In adopting the hearing officer's finding that the Union's payments to election observers did not constitute objectionable conduct, Chairman Gould and Member Fox relied on the absence of any evidence that any employees other than the two observers learned of the payments before casting their ballots. Member Hurtgen, distinguished Quick Stop Markets, 200 NLRB 830 (1972), and agreed that the payments were not objectionable, but did not pass on whether the payments would have been objectionable if word of such payments had spread to a determinative number of employees prior to the election. [TEXT] [PDF]
(Chairman Gould and Members Fox and Hurtgen participated.)
* * *
Operating Engineers IUOE Local 542 (Caretti, Inc.) (4-CD-966; 325 NLRB No. 173) Camp Hill, Pa. June 17, 1998. The charge in this Section 10(k) proceeding alleges that the Respondent, Operating Engineers Local 542, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the employer, Caretti, to assign certain work to employees it represents rather than to employees represented by Laborers Local 130. The Board, after considering all the relevant factors, concluded that employees represented by the Laborers are entitled to perform the work in dispute. The decision was based on the factors of collective-bargaining agreements and employer preference and past practice. [TEXT] [PDF]
(Chairman Gould and Members Fox and Hurtgen participated.)
* * *
Union Fork and Hoe Company (3-CA-20278, 20720; 325 NLRB No. 174) Frankfort, N.Y. June 17, 1998. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) of the Act by unilaterally discontinuing medical insurance benefits for its unit employees upon retirement, and that the Respondent did not unlawfully rescind its 401(k) matching contributions for the employees because it had the authority unilaterally to do so. In dismissing the latter allegation, Chairman Gould and Member Liebman relied solely on art. XVI of the parties' collective-bargaining agreement, which, in addition to the provision cited by the judge, also states that the "Employer will not be required to provide any 'employer matching contributions' under the 401(k) plan." Member Brame found that the Respondent had the right to rescind the contributions unilaterally under the collective-bargaining agreement and that the cessation of the 401(k) matching contribution was part of the remedy, i.e., a return to the status quo ante, for the Respondent's unlawful discontinuance of the active employees' retirement health benefits. [TEXT] [PDF]
(Chairman Gould and Members Liebman and Brame participated.)
Charges filed by Boilermakers Local 1916; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Utica on Jan. 12, 1998. Adm. Law Judge Joel P. Biblowitz issued his decision Feb. 15, 1998.
* * *
The New Otani Hotel & Garden (21-CA-30841; 325 NLRB No. 168) Los Angeles, Calif. June 17, 1998. The Board, finding that the record as a whole "does not warrant any inference of antiunion motivation for the discharges," upheld the administrative law judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging three housekeepers because of their activities for Hotel Employees and Restaurant Employees Local 11. The Respondent operates a hotel and restaurant complex, the New Otani, in the "Little Tokyo" area of downtown Los Angeles. The three alleged discriminatees had each worked in the Respondent's housekeeping department for about 16 years. [TEXT] [PDF]
(Chairman Gould and Members Liebman and Hurtgen participated.)
Charge filed by Hotel Employees and Restaurant Employees Local 11; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles for 4 consecutive days ending on Oct. 3, 1996. Adm. Law Judge Timothy D. Nelson issued his decision Aug. 7, 1997.
* * *
Trencor, Inc. (16-CA-17725; 325 NLRB No. 172) Grapevine, Texas June 18, 1998. In this Second Supplemental Decision and Order, the Board affirmed the administrative law judge's finding that the Respondent failed to prove, in defense of its refusal to recognize and bargain with the Steelworkers, that the Steelworkers engaged in objectionable conduct and interfered with employees' free choice in a representation election underlying the Steelworkers' certification as the collective-bargaining representative. [TEXT] [PDF]
(Chairman Gould and Members Liebman and Hurtgen participated.)
Hearing at Ft. Worth, Texas, Jan. 15, 1998. Bench decision issued by Adm. Law Judge William N. Cates, Jan. 15, 1998.
* * *
Weis Markets, Inc. t/a Mr. Z's Food Mart (4-CA-23525, et al.; 325 NLRB No. 162) Tunkhannock, Plains, and Scranton, Pa. June 12, 1998. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by, inter alia, telling employees it would close its stores and they would lose their jobs if they unionized; promising a wage increase; prohibiting employees from wearing union buttons at work; and prohibiting nonemployee organizers from distributing leaflets in front of its stores without having a property right entitling it legitimately to do so; and threatening to call and calling the police to evict them. The Board modified the judge's finding that the Respondent violated Section 8(a)(1), and not Section 8(a)(3), by discharging Tom Cahill for his union activities and filing a criminal complaint against him with the Pennsylvania state police in retaliation. [TEXT] [PDF]
(Chairman Gould and Members Liebman and Brame participated.)
Charges filed by Food and Commercial Workers Local 72; complaint alleged violations of Section 8(a)(1), (3), and (4). Hearing at Wilkes-Barre, Pa., Jan. 30-Feb.5, 1996. Decision issued by Adm. Law Judge George Aleman, March 21, 1997.
* * *
Beverly Health and Rehabilitation Services, Inc., d/b/a New Madrid Nursing Center (14-CA-24168-1, -3; 325 NLRB No. 166) New Madrid, Mo. June 12, 1998. The Board found, in accordance with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by informing employees that it had withdrawn recognition and that the Union was no longer the exclusive collective-bargaining representative of its employees and violated Section 8(a)(1) and (5) by withdrawing bargaining proposals in an effort to impede the parties from entering into a collective-bargaining agreement, withdrawing recognition from the union, and unilaterally changing employee working conditions. [TEXT] [PDF]
(Chairman Gould and Members Fox and Liebman participated.)
Charges filed by Manufacturing, Production, and Service Workers Local 24; complaint alleged violations of Section 8(a)(1) and (5). Hearing at St. Louis, Dec. 9-10, 1996. Decision issued by Adm. Law Judge George Carson II, April 9, 1997.
* * *
United Food and Commercial Workers Local 1776 and Seafarers International (4-CA-25215, 4-CB-7752; 325 NLRB No. 167) Philadelphia, Pa. June 15, 1998. The Board agreed with the administrative law judge that the Respondent Employer, Food and Commercial Workers Local 1776, did not violate Section 8(a)(1), (3), and (4) of the Act and that Respondent Union, Seafarers International, did not violate Section 8(b)(1)(A) by agreeing to provisions which granted Elizabeth Ann Murphy wage increases that were different from those granted to other employees and were conditioned on her retirement approximately two years from the date of the agreement. Also, the judge found, with Board agreement, that the Respondent Employer did not violate Section 8(a)(3) and (1) by advising Murphy that if she did not retire her wage increases would be revoked or by revoking those increases when she did not retire. [TEXT] [PDF]
(Members Fox, Hurtgen, and Brame participated.)
Charges filed by Elizabeth Ann Murphy, an individual; complaint alleged violation of Section 8(a)(1), (3), (4), and Section 8(b)(1)(A). Hearing at Philadelphia, Jan. 14-15, 1998. Decision issued by Adm. Law Judge Michael O. Miller, Feb. 3, 1998.
* * *
American Biomed Ambulette, Inc. (29-RC-8870; 325 NLRB No. 171) Brooklyn, N.Y. June 15, 1998. After considering objections to an election where the tally of ballots showed 6 for and 8 against the Petitioner (Electrical, Production & Industrial Workers Local 118), with 2 challenged ballots, an insufficient number to affect the results, the Board set aside the election and ordered a new election based on the hearing officer's finding that the Employer did not provide a proper Excelsior list. Chairman Gould wrote in a concurring opinion that he agrees that the Employer did not substantially comply with the Excelsior requirement but "further find[s] the hearing officer's conclusion that the Employer 'acted with bad faith, or at a minimum, with gross negligence' is irrelevant to the resolution of an objection to an Excelsior list." [TEXT] [PDF]
(Chairman Gould and Members Liebman and Brame participated.)
Grand Rapids Press, et al. (Detroit Newspaper Graphic Communications Local 13N) (7-CA-37463, et al.; 325 NLRB No. 169) Grand Rapids, et al., Mich. June 15, 1998. The administrative law judge found violations of Section 8(a)(1) and (3) committed by four newspapers owned by Booth Newspapers and The Herald Company who discriminatorily refused to employ substitute pressmen referred to them for employment by the Union because such employees were engaged in a strike against their principal employer, the Detroit Newspaper Agency. The judge also found that the Respondents violated Section 8(a)(5) and (1) by unilaterally changing the established referral hiring procedures between the respective Respondents and the Union regarding the employment of substitute pressmen. The General Counsel excepted to the judge's failure to include a make-whole remedy for individuals to be named at the compliance stage whom the Respondents discriminated against or who lost earnings based on the Respondents' unilateral changes in their referral system for hiring substitute pressmen. The Board agreed with the General Counsel and modified the remedy to include, inter alia, relief for individuals who have been affected by the Respondents' unlawful conduct, citing a number of decisions standing for the proposition that where discrimination has been alleged and found against a defined and easily identifiable class, the Board, with court approval, has found it appropriate to extend remedial relief to all members of the class. [TEXT] [PDF]
(Chairman Gould and Members Fox and Brame participated.)
Charges filed by Detroit Newspaper Graphic Communications Local 13N; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Lansing, Mich. Decision issued by Adm. Law Judge Robert M. Schwartzbart, Jan. 22, 1997.
* * *
Georgia-Pacific Corporation, Building Products Manufacturing/Sales Softwood Lumber Division, Central Division, El Dorado Sawmill (26-RC-7927; 325 NLRB No. 165) El Dorado, Ark. June 10, 1998. Chairman Gould and Member Liebman set aside an election held August 27, 1997 which the Paperworkers International lost 73-69, finding that the Employer engaged in objectionable conduct through a statement made by plant manager Herman Boykin during two employee safety meetings prior to the election. The statement reasonably suggested that employees would be foreclosed from participating in the Employer's bonus plan if they were represented by a union, the majority held. Member Hurtgen, dissenting, would overrule the Petitioner's objection and certify the results of the election. [TEXT] [PDF]
Chairman Gould and Member Liebman noted that Boykin described the Employer's bonus plan as one "that was developed for [the Employer's] nonunion plants in the Central Division," and that he made the statement while announcing the payment of a quarterly bonus to employees, thus linking the notion of the bonus plan's existence to a nonunion workforce. "Indeed, although Boykin made no direct reference to the Union's organizing campaign, neither did he attempt to place this statement in a different context," Chairman Gould and Member Liebman stated. They noted that an employer violates the Act by making statements to employees suggesting they will be automatically excluded from a benefit as soon as they become represented by a union. See, e.g., Hertz Corp., 316 NLRB 672, 693, 695 (1995) (statement that 401(k) plan "applies to non-union weekly and bi-weekly salaried employees" violative of Section 8(a)(1) of the Act).
Member Hurtgen noted that: "In order to find objectionable conduct, employees would have to reasonably infer the following from Boykin's statement: (1) the plan was developed only for nonunion plants; (2) the 'only non-union' policy continues; and (3) because of this, selection of the Union will automatically result in noneligibility. In my view, Boykin's bare statement cannot reasonably be stretched to carry all of these inferences. Indeed, when Boykin described the criteria for eligibility, he did not mention nonunion status as a criterion."
(Chairman Gould and Members Liebman and Hurtgen participated.)
* * *
Roma One Enterprises d/b/a Tony Roma's Restaurant (21-CA-31485; 325 NLRB No. 161) Carlsbad, Calif. June 8, 1998. The Board held, contrary to the administrative law judge, that the Respondent did not make a specific, unequivocal, and unconditional offer of reinstatement to employee/strikers Mauro Ruiz and Antonio Gaitan. The judge found that the Respondent's suspension of the two employees was attributable to their strike activity in violation of Section 8(a)(1) of the Act. However, the judge declined to recommend reinstatement and full backpay based on her conclusion that the discharged employees did not respond to what the judge viewed were the Respondent's valid offers of reinstatement. The Board found that the Respondent never made a valid, unconditional offer of reinstatement to Ruiz or Gaitan which would satisfy its burden and require the Board's evaluation of the discriminatees' conduct in response. Therefore, the Board ruled that the standard remedial order of reinstatement and full backpay is appropriate to remedy the Respondent's unfair labor practices. [TEXT] [PDF]
Member Hurtgen, dissenting in part, agreed with the judge that reinstatement was offered. He stated: "The majority makes two analytical errors: first, imposing an overly ritualistic obligation with respect to the words an employer must use in its offer; and second, placing an unreasonably high bar as the test, making employee responses irrelevant. I find that the employer clearly told the employees to come back to work and that the employees clearly did not want to."
(Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Mauro S. Ruiz, an individual; complaint alleged violation of Section 8(a)(1). Hearing at San Diego, Calif., June 22-23, 1997. Decision issued by Adm. Law Judge Mary Miller Cracraft, July 22, 1997.
* * *
Auto Workers Local 909 (General Motors Corporation-Powertrain) (7-CB-10683; 325 NLRB No. 164) Warren, Mich. June 10, 1998. Contrary to the administrative law judge, the Board ruled that the Respondent violated Section 8(b)(1)(A) of the Act by refusing to provide bargaining unit employee-grievants with their requested accounting of why some grievants received no grievance settlement payments and why there was a disparity in other grievance settlement payments made on March 24, 1995, pursuant to the January 10, 1995 mutligrievance settlement negotiated with the Employer. [TEXT] [PDF]
(Chairman Gould and Members Liebman and Hurtgen participated.)
Charge filed by Edward F. Billotti, et al., individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Detroit, March 20, 1997. Decision issued by Adm. Law Judge Thomas R. Wilks, Dec. 17, 1997.
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Teamsters Local 386 (Yosemite Concession Services) (32-CD-153; 325 NLRB No. 157) Buffalo, N.Y. May 29, 1998. The charge in this Section 10(k) proceeding alleges that the Respondent, Teamsters Local 386, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with the object of forcing the employer, Yosemite, to assign certain work to employees it represents rather than to employees represented by Service Employees Local 752. After considering all relevant factors, the Board concluded that employees represented by Service Employees Local 752 are entitled to perform the work in dispute. The Board reached this decision based on the Employer's past practice and current assignment, and the economy and efficiency of operations. [TEXT] [PDF]
(Chairman Gould and Members Liebman and Brame participated.)
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Melody San Bruno d/b/a Melody Toyota (20-CA-27104; 325 NLRB No. 158) San Bruno, Calif. May 29, 1998. The Board modified the administrative law judge's order in accordance to Emsing's Supermarket, 307 NLRB 421, 421-422 (1992). The administrative law judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide the Union with notice of the sale of its business and an opportunity to bargain concerning the effects on the unit employees of its cessation of operations and sales. No exceptions were filed to this finding; however, a limited exception was filed to the judge's recommended Order which provided, inter alia, for the Board's standard backpay remedy in effects bargaining cases modeled after Transmarine Navigation Corp., 170 NLRB 389 (1968). The Charging Party excepted to the Transmarine remedy insofar as it required the Union to request bargaining "within 5 days of this decision," because "[i]t is practically impossible to comply with the 5 day notice provision, particularly when decisions are put in the mail." The Board found merit to this exception to the extent that the Order language suggests, contrary to Emsing's, that a union must request bargaining within 5 days from the date of the Board's decision rather than, as Emsing's held, within 5 business days after receipt of the decision. The Board stated further: "In addition, during the 5-day period, there is no requirement that the union tender a bargaining proposal; the union simply needs to communicate to the Respondent its desire to begin negotiations. Further contrary, to the Charging Party's contention, the Order is consistent with normal Board bargaining orders which direct the respondent to bargain with the union upon request. Accordingly, we approve the remedy proposed by the judge, but we modify paragraph 2(a) of the Order in accordance with Emsing's." [TEXT] [PDF]
(Chairman Gould and Members Fox and Liebman participated.)
Charge filed by Machinists District Lodge 190 and Peninsula Auto Mechanics Local Lodge 1414; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Francisco, Aug. 15, 1996. Decision issued by Adm. Law Judge Clifford H. Anderson, Jan. 16, 1997.
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Comcast Cablevision of New Haven, Inc. (34-RD-225; 325 NLRB No. 155) New Haven, Conn. May 22, 1998. The Board considered the hearing officer's recommendations and objections to an election where the tally of ballots shows 20 for and 18 against Connecticut Union of Telephone Workers Local 502, with no challenged ballots. The Board adopted the hearing officer's findings and recommendations, and found that a certification of representation should issue. Among other findings, the Board agreed with the hearing officer that the union's conduct in distributing mock ballots does not warrant setting aside the election because the employees would not reasonably have believed that the mock ballots emanated from the Board. [TEXT] [PDF]
(Chairman Gould and Members Liebman and Brame participated.)
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Diva, Ltd. (2-CA-28189; 325 NLRB No. 152) New York, N.Y. May 22, 1998. The administrative law judge found that Charging Party Janice Friedman was an employee of the Respondent, which operates and manages a jazz band, "Diva," and that the Respondent violated Section 8(a)(1) of the Act by terminating Friedman because she engaged in protected concerted activity. The Board reversed the judge and found that Friedman voluntarily ended her relationship with Diva by conditioning her willingness to continue performing with the band on the Respondent's acquiescence to the ultimatums set forth in a letter listing several areas of dissatisfaction and demanding specific changes. The Board noted that Friedman's letter clearly indicated that unless her demands were met, she intended to part ways with the band, and that the Respondent was lawfully privileged to respond to the letter by informing Friedman that it could not meet her demands and that a replacement would be found for her. Because of this finding, the Board decided that it was unnecessary to pass on whether Friedman was an employee or an independent contractor, and whether Friedman's conduct was protected. [TEXT] [PDF]
(Members Fox, Hurtgen, and Brame participated.)
Charge filed by Janice Friedman, an individual; complaint alleged violation of Section 8(a)(1). Hearing at New York, N.Y., Feb. 6-7, 1997. Decision issued by Adm. Law Judge Michael A. Marcionese, April 29, 1997.
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Enrichment Services Program, Inc. (10-RC-14486; 325 NLRB No. 154) Columbus, Ga. May 20, 1998. In a plurality decision, the full Board overruled Woodbury County and Economic Security Corp., and all subsequent cases finding Community Services Block Grant (CSBG) Act anti-poverty service providers like the Employer to be exempt political subdivisions under Section 2(2) of the Act, where the "representatives of the poor" members of the tripartite governing board were elected by limited groups of voters. Members Liebman and Brame stated: "...[W]e find that an electorate comprised, as here, of members of various low income neighborhoods and, in Economic Security Corp. and Woodbury County, of 'all poor' persons is not comparable to the electorate for general political elections. An 'electorate' of all poor persons or groups thereof does not include all individuals in the area served who would be eligible to vote in general political elections. Accordingly, we find that the Employer's directors who are 'elected by the poor' are not 'responsible . . . to the general electorate' within the meaning of the Hawkins County test." Chairman Gould and Member Fox, concurring, agree that the Employer is not exempt from the Board's jurisdiction as a political subdivision and with the overruling of Woodbury County and Economic Security Corp., and subsequent related cases. Unlike their colleagues, they would also overrule Salt River Project and Electrical District No. 2. Member Hurtgen, concurring, does not believe that an entity is private simply because its directors are elected by only a segment of the citizenry. "On the other hand, there are factors in this case which affirmatively establish that the employer is private rather than public," such as the fact that the Internal Revenue Service regards the Employer as a non-profit charitable entity rather than a political subdivision, he explained. [TEXT] [PDF]
(Full Board participated.)
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Meaden Screw Products, Co. (13-CA-34483; 325 NLRB No. 142) Burr Ridge, Ill. May 15, 1998. The Board upheld the administrative law judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act when it discharged Brian Freid for activity on behalf of the Machinists Union. The judge found that the General Counsel failed to establish a prima facie case and that Freid was discharged because Respondent suspected that he was deliberately impairing production.
[TEXT] [PDF](Members Fox, Liebman, and Brame participated.)
Charge filed by Brian Freid, an individual; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Chicago, May 12-13, 1997. Decision issued by Adm. Law Judge William G. Kocol, Aug. 1, 1997.
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Epic Security Corp. (2-CA-28188, et al.; 325 NLRB No. 143) Bronx, N. Y. May 15, 1998. In agreement with the administrative law judge, the Board found that the General Counsel established facts sufficient to support the inference that the Respondent's animus against Louis Bracht's support for the union was a motivating factor in the decision to discharge him. The Board further found that the Respondent did not show that it would have discharged him in the absence of his protected activity. Affirming the judge's denial of the Respondent's request to reopen the record for further examination regarding an audiotape and to introduce newly discovered evidence, the Board granted the General Counsel's request that a transcript of a conversation, which was appended to the Respondent's exceptions and brief, be stricken from the record. The Board ordered the Respondent to immediately reinstate Bracht to a position substantially equivalent the armed guard position he held, pending final adjudication by the New York authorities of Bracht's request for restoration of his gun license, and upon restoration of his gun license, to a position as an armed guard. Contrary to the judge and dissenting Member Hurtgen, Chairman Gould and Member Fox found that the Respondent violated Section 8(a)(3) and (1) by transferring Nestor Gonzalez and failing to reinstate him to his former position. In addition, the Board granted the General Counsel's exception to the judge's apparently inadvertent failure to conclude that the Respondent violated Section 8(a)(1) by engaging in surveillance of employees.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charges filed by United Federation of Police Officers and Louis Bracht, an individual; complaint alleged violations of Section 8(a)(1) and (3). Hearing at New York City, May 1-2, 21-22. Decision issued by Adm. Law Judge James F. Morton, Oct. 11, 1996.
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ServiceMaster Aviation Services (5-RC-14385; 325 NLRB No. 151) Washington, D.C. May 15, 1998. The petitioner, Allied Services Division, Transportation Communications International Union, filed a petition seeking to represent skycaps at National Airport. The Employer asserted that it is directly controlled by American Airlines, a common carrier subject to the jurisdiction of the Railway Labor Act (RLA), and that the NLRB lacks jurisdiction under Section 9(2) of the NLRA. The Board requested that the National Mediation Board (NMB) determine the applicability of the RLA to the Petitioner. The NMB issued an opinion that the Employer is subject to the RLA. The majority, consisting of Members Liebman and Brame, considered the facts in light of the NMB opinion and found that the Employer is subject to the RLA, and dismissed the petition. Dissenting, Chairman Gould asserted that the petitioned-for employees are involved in work that would normally be covered by the NLRA, and that their jobs are at most an incidental service to the air carrier. He disagreed with the decision to defer to the NMB and would not dismiss the petition.
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated.)
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CWI of Maryland, Inc. (5-CA-25971, 26514; 325 NLRB No. 148) Beaver Heights, Md. May 18, 1998. The Board upheld the administrative law judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1) of the Act by discharging employees Boran and Simpson. The judge concluded that there was insufficient evidence to prove that Boran was discharged because he signed a union card, or that Simpson was discharged for engaging in concerted activity. The Respondent's motion for sanctions was denied by the judge.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charges filed by Teamsters Local 639 and Oren L. Simpson, an individual; complaint alleged violations of Section 8(a)(1). Hearing at Washington, D.C., Sept. 29-30, 1997. Decision issued by Adm. Law Judge James L. Rose, Dec. 19, 1997.
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Irwin Industries, Inc. (31-CA-20526, et al.; 325 NLRB No. 149) Long Beach, Ca. May 19, 1998. The administrative law judge dismissed in its entirety consolidated complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging certain employees, refusing to hire or reinstate other employees, and by refusing to hire some 30 applicants because of their union membership and/or organizing activities. The Board agreed with the judge that the Respondent did not violate Section 8(a)(3) by discharging certain employees at its Ultrapower jobsite, concluding that the Respondent carried its burden under Wright Line that it would have discharged the employees even in the absence of their union activities. However, the Board did not agree with the judge's recommendation that the Charging Party Union be required to reimburse both the Respondent and the Board for reasonable counsel fees and expenses because, in the judge's view, the charges were "frivolous," "bogus," and "knowingly false," and the employees collective participation "was contrived for the purpose of intentional delay and was not undertaken in good faith." The Board stated: "We do not agree with the judge's characterization of the Charging Party's charges, nor do we agree that the record supports the finding that the three [employees] acted in bad-faith on requesting the safety data in question." Noting that the judge based his recommendation for sanctions by discrediting the Charging Party's testimony, the Board stated that "even untruthful testimony, although never to be condoned, does not alone justify the kind of extreme sanction imposed by the judge," particularly where, as here, the Board lacks the statutory authority under Section 10(c) to order the reinsbursement remedy against a party that is not the respondent. In addition, although the Board based its decision on another rationale, it agreed with the judge's finding that the Respondent did not violate Section 8(a)(3) and (1) by refusing to hire 30 applicants who, with the Charging Party's assistance, applied for work en masse and designated themselves as "volunteer union organizers."
[TEXT] [PDF](Chairman Gould and Members Fox and Liebman participated.)
Charges filed by Boilermakers; complaints alleged violations of Section 8(a)(1) and (3). Hearing at Los Angeles, July 17-20, Nov. 6-9, 1995, and Jan. 23-26, and April 15-16, 1996. Decision issued by Adm. Law Judge Gerald A. Wacknov, Sept. 18, 1996.
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River Parish Maintenance, Inc. (15-RC-8062; 325 NLRB No. 153) Hahnville, La. May 19, 1998. The Board considered determinative challenges and objections in an election where the tally of ballots shows 20 for and 18 against the Petitioner, Construction and General Laborers Local 1177. A Board majority, consisting of Chairman Gould and Member Fox, adopted the hearing officer's recommendation to set aside the election on the basis of Objection 10, finding that the employer's holding of an offsite "crab boil" for employees 2 days before the election, and paying them for their attendance, was objectionable under B & D Plastics, 302 NLRB 245 (1991). Dissenting in part, Member Hurtgen, contrary to the majority and the hearing officer, would overrule the Petitioner's Objections 9 and 10.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participation.)
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Doctors' Hospital of Staten Island, Inc. (29-CA-20687; 325 NLRB No. 144) Staten Island, N.Y. May 13, 1998. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(3) and (1) of the Act by taking away John Mantione's Sunday evening and on-call shifts and otherwise reducing his work hours and by thereafter terminating Mantione in order to discourage union membership. No exceptions were filed with regard to the judge's finding that the Respondent violated Section 8(a)(1) of the Act by promulgating and maintaining a rule that restricted employees to distributing union material outside the hospital and prohibited the posting of union material anywhere on hospital premises.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by National Health and Human Service Employees Union Local 1199; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Brooklyn, N.Y., July 23, 1997. Decision issued by Adm. Law Judge Michael A. Marcionese, Oct. 6, 1997.
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Osram Sylvania, Inc. (6-RC-11305; 325 NLRB No. 147) St. Mary's, Pa. May 14, 1998. The Board considered objections and determinative challenges filed pursuant to an election in which the tally of ballots showed 251 votes for and 227 votes against the Petitioner, Electronic Workers IUE, with 35 challenged ballots, a number sufficient to affect the results. Contrary to the hearing officer, the Board found that a ballot marked with a smudged diagonal line in the "Yes" box and seven "X"s in the "No" area should count as a "No" vote, relying on Brooks Brothers, 316 NLRB 176 (1995), and Mediplex of Connecticut, 319 NLRB 281 (1995). Also, contrary to the hearing officer, the Board found that the 29 employees who were in layoff status as of the eligibility cutoff date, but who were recalled prior to the election, did not have a reasonable expectation of recall as of the eligibility cutoff date and therefore were not eligible to vote in the election. Since the revised tally of ballots showed 251 votes for and 230 against the union, with two challenged ballots, an insufficient number to affect the results, the Board certified the union as the collective- bargaining representative. Chairman Gould, dissenting in part, agreed with the hearing officer that the 29 employees who were laid-off had a reasonable expectation of recall and therefore were eligible to vote.
[TEXT] [PDF](Chairman Gould and Members Fox and Brame participated.)
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Iron Workers Local 386 (Warshawsky & Company) (33-CC-1202; 325 NLRB No. 141) LaSalle, Ill. May 14, 1998. Members Fox and Liebman affirmed the administrative law judge's recommended dismissal of a complaint which alleged that the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by distributing handbills to employees of the general contractor and subcontractors at a jobsite in LaSalle, Illinois where Warshawsky was constructing a warehouse and mail order facility. Chairman Gould, concurring, wrote separately because he found that the instant facts present a "close case" of whether the Respondent induced employees of the general contractor & subcontractors to cease performing work. Although there is no direct evidence of such inducement, the facts arguably suggest that the Respondent was indeed making an appeal, "through a careful wink and a nod," for the employees to engage in a work stoppage and therefore the Respondent's conduct warrants a careful examination to determine its lawfulness, the Chairman stated.
[TEXT] [PDF](Chairman Gould and Members Fox and Liebman participated.)
Charge filed by Warshawsky & Company; complaint alleged violation of Section 8(b)(4)(i) and (ii)(B). Parties waived their right to a hearing. Adm. Law Judge William J. Pannier III issued his decision June 3, 1997.
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Oklahoma Installation Company (17-CA-18500; 325 NLRB No. 140) Owasso, Okla. May 14, 1998. Chairman Gould and Member Fox reversed the administrative law judge and found that the Respondent violated Section 8(a)(5) and (1) of the Act, as alleged, by withdrawing recognition from Carpenters Local 943 following expiration of the parties' collective-bargaining agreement and unilaterally discontinuing and changing employees' existing terms and conditions of employment. Chairman Gould and Member Fox found, contrary to the judge, that the Respondent recognized the Union as the full 9(a) representative of bargaining unit employees and therefore had a continuing bargaining obligation to recognize and bargain with the Union, and to adhere to the terms of the parties' expired contract. Member Hurtgen, dissenting, would dismiss the complaint, finding that "the contract was classically an 8(f) contract" and that "Respondent was free to withdraw recognition at the end of that contract."
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Carpenters Local 943; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Tulsa on Oct. 8, 1996. Adm. Law Judge Martin J. Linsky issued his decision Jan. 15, 1997.
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DePaul Adult Care Communities, Inc. (3-RD-1261; 325 NLRB No. 132) East Rochester, N.Y. April 28, 1998. The Board issued an Order Denying Review of the Regional Director's Decision and Direction of Election in which the Regional Director concluded that the petition for election was not barred by an agreement which may have existed between the union, Rochester Hospital & Healthcare Employees, SEIU District 1199, and the Employer, DePaul Adult Care Communities, at the time it was filed. Here, the parties apparently reached an agreement but there was no document or documents signed by both of the parties memorializing the parties' agreement. The Regional Director, citing the contract bar principals under Appalachian Shale Products Co., 121 NLRB 1160 (1958), concluded that without the Employer's signature on the collective-bargaining agreement, or some document referring to it, the agreement was insufficient to act as a bar.
[TEXT] [PDF](Chairman Gould and Members Fox and Liebman participated.)
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Addington, Inc., a wholly owned subsidiary of Pittston Minerals Group (9-CA-33102, 9-CA-33604; 325 NLRB No. 129) Hazard, Ky. April 30, 1998. The Board affirmed the conclusions of the administrative law judge and found that the Respondent violated Section 8(a)(1) and (3) of the Act by interrogating an employee concerning his union sentiments and threatening to shut the job down. No exceptions were filed to the judge's finding that the employer did not violate Section 8(a)(1) and (3) by permanently laying off and/or discharging its employees because they engaged and participated in a strike or because they formed, joined, or assisted the union (United Mine Workers) and engaged in concerted activities.
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated.)
Charges filed by Larry Stacy, an individual; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Hazard, April 30-May 2 and June 10, 1997. Decision issued by Adm. Law Judge Bruce D. Rosenstein, Aug. 29, 1997.
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Martin Enterprises, Inc. (25-RC-9696; 325 NLRB No. 133) Ft.Wayne, Ind. April 30, 1998. The Board considered determinative challenges in a mail-ballot election held Sept. 1997 in which the tally of ballots shows eight for and seven against the Petitioner, Operating Engineers IUOE Local 103, with two challenged ballots. In so doing, the Board adopted the hearing officer's recommendation to overrule the Petitioner's challenge to the ballot of Lynn Palmer because there was insufficient evidence to establish that Palmer was a supervisor within the meaning of Section 2(11) of the Act. However, the Board did not agree with the hearing officer's recommendation that the Employer's challenge to the ballot of Jon Schmidt be overruled. Instead, the Board concluded that Schmidt was a nonunit truckdriver at the time of the election, and that his performance of unit work after his transfer from the unit was sporadic and insufficient to demonstrate that he had a continued interest in the unit's terms and conditions of employment.
[TEXT] [PDF]The Board directed the Regional Director to open and count Palmer's ballot and issue a revised tally and appropriate certification.
(Chairman Gould and Members Liebman and Brame participated.)
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B & K Builders, Inc. (30-CA-12856, et al.; 325 NLRB No. 128) Marshfield, Wis. April 30, 1998. The administrative law judge recommended dismissal of certain consolidated complaint allegations based on his finding that a settlement agreement barred their litigation. The General Counsel filed limited exceptions to the judge's finding that the "Scope of the Agreement" clause contained in the settlement agreement did not specifically reserve the right to relitigate two new allegations of Section 8(a)(1) violations raised by the postsettlement charge filed in Case 30-CA-13014. The Board found merit to the General Counsel's exceptions. In sum, the Board found that the clear and specific terms of the reservation language in the settlement agreement permits litigation of the allegations of unlawful presettlement wage increases and surveillance in Case 30-CA-13014. Addressing the merits of those allegations, the Board found that the Respondent violated Section 8(a)(1) by granting certain wage increases and that the Respondent created the impression of surveillance by implication that it was watching the voting plans of its employees.
[TEXT] [PDF](Chairman Gould and Members Fox and Liebman participated.)
Charges filed by Laborers' International Fox/Wis River Valley Locals 931, 539, 1359, 1407; Bricklayers District Council of Wisconsin; and Carpenters Greater Fox River Valley District Council. Complaint alleged violations of Section 8(a)(1) and (3). Hearing at Marshfield, May 1-2, 1996. Decision issued by Adm. Law Judge Irwin H. Socoloff, Dec. 31, 1996.
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Rite Aid Corp. (5-UC-262; 325 NLRB No. 134) Washington, D.C., etc. April 30, 1998. Members Fox and Hurtgen reversed the Regional Director in part and clarified the unit of all pharmacists and interns employed by the Employer at various geographic locations to include the position of pharmacy manager at stores in which no pharmacy technicians are employed and to exclude the position of pharmacy manager at stores which employ pharmacy technicians. Chairman Gould, concurring and dissenting. By order dated February 21, 1990, the Board remanded the proceeding to the Regional Director for further consideration of the pharmacy managers' supervisory authority over pharmacy technicians consistent with Detroit College of Business, 296 NLRB 318 (1989). In Detroit College, the Board decided that it must evaluate in professional settings whether the supervisory functions being exercised by a professional employee over nonunit employees "so allied the individuals with management as to establish a differentiation between them and other employees in the unit." supra at 320 (quoting Adelphi University, 195 NLRB 639, 644 (1972)). Applying that standard to the instant case, Members Fox and Hurtgen concluded that the pharmacy managers are properly excluded in the 65 stores in which pharmacy managers supervise pharmacy technicians.
[TEXT] [PDF]For the reasons set forth in his concurrence and dissent in Legal Aid Society of Alameda County, 324 NLRB No. 135, slip op. at 3 (Oct. 21, 1997), Chairman Gould would clarify the unit of pharmacists to include pharmacy managers at all of the Employer's stores in which the unit employees are employed. "Consistent with my position in Legal Aid, in my view, even assuming that pharmacy managers at stores which employ pharmacy technicians possess statutory supervisory authority over such employees, the unit should be clarified to include them because their supervision extends only to nonunit support personnel," Chairman Gould stated.
(Chairman Gould and Members Fox and Hurtgen participated.)
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Arizona Public Service Company (28-RC-5407; 325 NLRB No. 137) Palo Verde, Ariz. May 4, 1998. Chairman Gould and Member Hurtgen certified the results of an election held May 30, 1996, which the Petitioner, Electrical Workers IBEW Local 387, lost 428 to 374. Member Liebman dissented. Citing Sony Corp., 313 NLRB 420 (1993), Member Hurtgen reversed the hearing officer and overruled the Petitioner's Objection 5, which alleges that the Employer interfered with the election by conducting a raffle on the day of the election. Member Hurtgen wrote: "I agree with the hearing officer's finding that there is no evidence that the Employer used the raffle to determine how and whether the employees voted, or that participation in the raffle was conditioned upon how the employee voted or upon the result of the election. Thus, these elements of the Sony test clearly militate in favor of the legality of the instant raffle."
[TEXT] [PDF]Chairman Gould, concurring in the overruling of Petitioner's Objection 5, disagrees with the Board's current approach that an election-day raffle is objectionable if the prizes are of a substantial nature and believes that the Board should "modify its analysis of election-day raffles to place primary consideration on whether the employer has, in the past, held raffles of a similar nature for employees." The Chairman held that the "most appropriate analysis of Objection 5 would require establishing a new standard focusing on employer past practice, and also remanding that objection for further evidence concerning the Employer's past practice. However, in the absence of a majority vote for remanding this case to place primary consideration on the Employer's past practice, I shall decide the case on the record that is before us." On that basis, the Chairman was unable to find that the raffle was objectionable. He would overrule Sony, supra, because it does not hold that past practice is the determinative factor.
Member Liebman, in finding that the Employer's election-day raffle interfered with the election and that a new election must be held, concluded that "the hearing officer correctly found, consistent with Board precedent, that the raffle prizes were so substantial as to both divert the employees' attention away from the election and its purpose and to inherently induce eligible voters to support the Employer's antiunion position." E.g., Drilco, a Division of Smith International, 242 NLRB 20 (1979). Member Liebman also agreed with the hearing officer that the manner in which the raffle was announced and promoted by the Employer had the tendency to induce voters to support the Employer's position by voting against the Petitioner. Thus, Member Liebman agreed with the hearing officer's reliance on Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995), and agreed with the hearing officer that Sony is distinguishable.
(Chairman Gould and Members Liebman and Hurtgen participated.)
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International Paper (3-CA-20001; 325 NLRB No. 127) Corinth, N.Y. April 30, 1998. In agreeing with the administrative law judge that the Respondent did not violate Section 8(a)(5) of the Act by refusing to execute a separate collective-bargaining agreement with Firemen & Oilers Local 106, SEIU, the Board relied solely on his primary rationale that Local 106 and three locals of the Paperworkers International (UPIU) are a joint representative of a mill-wide bargaining unit. The complaint was dismissed. The Board found it unnecessary to pass on the judge's alternative rationale that even if Local 106 and the UPIU locals are not a joint representative, the four Unions were engaged in joint bargaining, and Local 106's attempt to withdraw from such bargaining was untimely.
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated.)
Charge filed by with Firemen & Oilers Local 106, SEIU; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Albany, March 24-25, 1997. Adm. Law Judge Steven Davis issued his decision Oct. 24, 1997.
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Glaziers Local 27 (E.J. Hayes Glass & Mirror Co.) (13-CD-545; 325 NLRB No. 122) Skokie, Ill. April 27, 1998. The charge in this Section 10(k) proceeding alleges that the Respondent, Glaziers Local 27 Chicago and Vicinity, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Ironworkers Local 63. The Board affirmed the hearing officer and concluded that the employees represented by Glaziers are entitled to perform the work in dispute. The Board based its decision on the factors of the Employer's preference and past practice, the area practice, and the relative skills of the employees.
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated.)
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Silogram Lubricants Corp. (29-CA-19901; 325 NLRB No. 123) Brooklyn, N.Y. April 28, 1998. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Harvey Berezin because he signed an authorization card for Amalgamated Workers Local 88, the Board held in agreement with the administrative law judge.
[TEXT] [PDF](Chairman Gould and Members Liebman and Hurtgen participated.)
Charge filed by Amalgamated Workers Local 88; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn on May 13, 1997. Adm. Law Judge Eleanor MacDonald issued her decision Dec. 5, 1997.
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Tri-Pak Machinery, Inc. (16-CA-17827; 325 NLRB No. 119) Harlingen, Texas April 23, 1998. On a stipulated record, the Board dismissed a complaint against the Respondent and deferred the dispute to the parties' contractual grievance-arbitration machinery. The Respondent was charged with violating Section 8(a)(5) and (1) of the Act by refusing to meet and bargain with the Union, Electrical Workers IBEW Local 278, in response to a timely request made in a form the Respondent honored in the past. In reaching its conclusion, the Board rejected the General Counsel's argument that deferral to arbitration is inappropriate "where there is a substantial question as to whether a collective-bargaining agreement has been extended or automatically renewed." The Board instead found that the deferral criteria outlined in Collyer Insulated Wire, 192 NLRB 837 (1971), and United Technologies Corp., 268 NLRB 557 (1984), were met and thus dismissed the complaint.
[TEXT] [PDF](Chairman Gould and Members Fox and Liebman participated.)
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Swedish Medical Center (19-UC-614; 325 NLRB No. 124) Seattle and Ballard, Wash. April 29, 1998. The Board found, contrary to the Acting Regional Director, that the newly created managed care position is substantially the same as the Ballard home care coordinator position which previously was included in the bargaining unit, and as such, is appropriately included in the bargaining unit of employees represented by Service Employees District 1199 Northwest. Accordingly, the Board reversed the dismissal of the petition and clarified the bargaining unit specifically to include the managed care home health coordinator employed at Ballard.
[TEXT] [PDF]
(Chairman Gould and Members Fox and Liebman participated.)
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Champaign Residential Services, Inc. (9-RC-16853, 16856; 325 NLRB No. 126) Champaign and Clark Counties, Ohio April 30, 1998. The Board certified Health Care and Social Service District 1199, SEIU as the exclusive collective-bargaining representative of service and maintenance employees working for the Employer in Champaign and Clark Counties, Ohio. The Board overruled the Employer's Objections 1, 4, 6, and 7 regarding the Petitioner's circulation of a flyer with 68 photocopied signatures of unit employees under a heading stating in part "We are winning! Join Us!" and the Employer's Objection 5, which involved two confrontations on the Employer's property of the Employer's managers by nonemployee union organizers and their supporters in the unit.
[TEXT] [PDF](Members Fox, Liebman, and Brame participated.)
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Iron Workers Local 395 (Arco, Inc.) (13-CD-546; 325 NLRB No. 116) Toledo, Ohio April 15, 1998. The charge in this Section 10(k) proceeding alleges that the Respondent, Iron Workers Local 395, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the employer to assign certain work to employees it represents rather than to employees represented by Carpenters Northwest Indiana District Council. The Board affirmed the hearing officer and concluded that the employees represented by Carpenters are entitled to perform the work in dispute. The Board based its decision on the factors of collective-bargaining agreements, employer preference and past practice, area and industry practice, relative skills and safety, and economy and efficiency of operations.
[TEXT] [PDF](Members Fox, Hurtgen, and Brame participated.)
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MBI Acquisition Corp. d/b/a Gayfers Department Store (12-CA-15841(1-2); 325 NLRB No. 117) Daytona Beach, Fla. April 16, 1998. In an earlier decision, the Board held that the Respondent (Gayfers) violated Section 8(a)(1) of the Act by prohibiting subcontractor employees from distributing handbills, causing these employees to be arrested, and enforcing a presumptively unlawful (overly broad) no-solicitation/no-distribution rule. Gayfers filed a Motion to Reconsider or Amend the Board's Order contending that the notice posting and mailing provision is too broad and that the requirement that Gayfers mail notices in lieu of posting is inappropriate where, as here, Gayfers has not ceased doing business. With regard to the issue of which employees should receive notice, the Board rejected Gayfers' argument that the notice should be directed only to employees of subcontractor Baroco and held that both Baroco's and Gayfers' employees were subjected to the overly broad no-solicitation/no-distribution rule. Thus, the Board's notice should be mailed to both groups. With respect to the issue of method of notice, the Board found merit in Gayfers' contention and amended the Order to provide that Gayfers mail the notice to its employees only in the event that Gayfers closes. As to Baroco's employees, the Board provided for mailing the notice because they no longer work at the facility.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
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Teamsters Local 955 (Interstate Brands Corp.) (17-CB-4731; 325 NLRB No. 108) Kansas City, Kans. April 9, 1998. The Board affirmed the administrative law judge's finding that the Respondent acted lawfully to strengthen its bargaining position rather than to punish those employees who crossed the picket line and thus dismissed complaint allegations that the Respondent violated Section 8(b)(1)(A) of the Act by refusing to agree to acceptance by the Central States Pension Fund of contributions made by Interstate on behalf of the nonstriking employees. Chairman Gould, concurring, believes that Section 8(b)(3) forbids a union from making unilateral changes in the terms and conditions of nonstriking employees as well as striker replacements. Accordingly, when, during a strike, a union unilaterally changes the working conditions of nonstriking employees and striker replacements, the Chairman would find such action to violate Section 8(b)(3). Members Fox and Hurtgen declined to comment upon the issues raised by Chairman Gould, noting that there is no allegation that any party violated any bargaining obligation.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Kenneth D.A. Bunton; complaint alleged violation of Section 8(b)(1)(A). Hearing at Overland Park on March 5, 1997. Adm. Law Judge D. Randall Frye issued his decision Aug. 28, 1997.
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Stannah Stairlifts, Inc. (1-RC-20418; 325 NLRB No. 97) Hopkinton, Mass. April 8, 1998. Affirming the administrative law judge's supplemental decision, the Board set aside an election held on March 20, 1996 and directed a second election, finding that employee Leo Locurto's "misconduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible." Westwood Horizons, 270 NLRB 802 (1984). In earshot of the entire 4-man unit, Locurto on February 23, 1996 threatened to "kick the shit out of" and "kill" anyone who opposed unionization. Elevator Constructors Local 4 won the election by a 2-to-1 vote. The judge assumed arguendo that Locurto was not an agent of the Union and applied a third-party standard. The Board agreed, holding that the "test does not hinge on the subjective reactions of the prospective voters in a particular election. The ultimate standard to be applied is objective, not subjective." In the absence of exceptions, the Board adopted pro forma the judge's recommendation that Respondent's Objection 2 be overruled. In a prior decision, the Board dismissed the complaint in Case 1-CA-33867 and remanded Case 1-RC-20418 to the judge for a supplemental decision on the election objections. 324 NLRB No. 141 (1997).
[TEXT] [PDF](Members Fox, Hurtgen, and Brame participated.)
Adm. Law Judge Robert T. Wallace issued his supplemental decision Dec. 8, 1997.
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Delco Electronics Corp., a Div. of General Motors (25-CA-24251; 325 NLRB No. 107) Kokomo, Ind. April 14, 1998. The administrative law judge found, and the Board agreed, that the Respondent threatened Gary Mannies with transfer to another shift or other reprisals in violation of Section 8(a)(1) of the Act and transferred Mannies to the second shift because of his union or other protected concerted activities in violation of Section 8(a)(3) and (1). The Board amended the judge's decision to require that the Respondent offer Mannies reinstatement to the shift and department in which he worked at the time of the transfer and it revised the triggering date of the Respondent's notice-mailing obligation to the date of the first unfair labor practice consistent with Excel Container, Inc., 325 NLRB No. 14 (1997).
[TEXT] [PDF](Members Fox, Hurtgen, and Brame participated.)
Charge filed by Garry Mannies, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Indianapolis, Sept. 8-9, 1997. Adm. Law Judge Michael O. Miller issued his decision Nov. 21, 1997.
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Mathews-Carlsen Body Works, Inc. (32-CA-15537, 15736; 325 NLRB No. 114) Palo Alto, Calif. April 16, 1998. Citing Moeller Bros. Body Shop, 306 NLRB 191 (1992), the Board concluded that the administrative law judge properly granted the General Counsel's posttrial motion to withdraw the complaint which alleged that the Respondent violated Section 8(a)(1) and (5) of the Act by failing to apply preexisting contractually based conditions to a substantial number of employees performing bargaining unit work and by withdrawing recognition from Machinists Local Lodge 1414. The General Counsel moved for withdrawal after concluding that the Respondent had made contractually required benefit fund payments for only a portion of the bargaining unit employees, and that the Union knew or should have known of this prior to the beginning of the 10(b) period.
[TEXT] [PDF](Members Fox, Hurtgen, and Brame participated.)
Charges filed by Machinists Local Lodge 1414; complaint alleged violation of Section 8(a)(1) and (3). Hearing held March 7 and 10, 1997. Adm. Law Judge Jay R. Pollack issued his decision May 22, 1997.
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Culinary Foods, Inc. (13-RC-19659; 325 NLRB No. 115) Chicago, Ill. April 16, 1998. The Board considered objections filed to an election held July 11, 1997 in which the tally of ballots shows 464 for the Petitioner (Production and Maintenance Union Local 101, an affiliate of Chicago Truck Drivers Union), 403 for the Intervenor (United Food and Commercial Workers Local 100-A), and 31 against the participating labor organizations, with 9 challenged ballots, an insufficient number to affect the results, and 8 void ballots. The Board agreed with the hearing officer that the Intervenor's Objections 1 and 2 be overruled, and that the Petitioner be certified. With regard to Objection 1, the Board found that the record does not establish that employee-members of the self-organized employee committee that contacted the Petitioner and assisted the Petitioner's subsequent organizing campaign were agents of the Petitioner. The Board also concluded that at the most about 45 employees in a unit of 1158 eligible voters heard alleged threats made by employee supporters of the Petitioner that the Petitioner would contact the Immigration and Naturalization Service if it lost the election. "Given the relatively limited dissemination of these statements, we find that they did not create a general atmosphere of fear and reprisal rendering a fair election impossible," the Board stated.
[TEXT] [PDF](Members Fox, Liebman, and Brame participated.)
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Beverly Enterprises-Massachusetts, Inc., d/b/a Beverly Manor Nursing Home (1-CA-31323, et al.; 325 NLRB No. 95) Plymouth, Mass. April 9, 1998. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(5) of the Act by reducing the maximum 1996 wage increase to unit employees from 4 percent to 3 percent. In so doing, Chairman Gould and Member Fox rejected the Respondent's contention that the 3-percent maximum increase was the result of its consistent application of an inflexible formula for computing annual wage increases that it had employed in past years. "We view the Respondent's established merit increase program as consisting mainly of fixed features, i.e, awarding standard 4-percent maximum increases to most (90 percent) employees following the annual appraisals," Chairman Gould and Member Fox held. See Southeastern Michigan Gas Co., 198 NLRB 1221 (1972), and Daily News of Los Angeles, 315 NLRB 1236, 1239, fn. 28 (1995). Member Hurtgen, concurring in the result, noted that because it was the fixed maximum that was unilaterally changed to 3 percent in violation of Section 8(a)(5), "it is unnecessary to decide whether an employer violates the Act by continuing the past practice of exercising discretion as to matters that are variable and at the discretion of the employer."
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charges filed by Hospital Workers Local 757, Service Employees; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston, March 17-18, 1997. Adm. Law Judge Steven M. Charno issued his decision April 15, 1997.
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Overnite Transportation Company (20-RC-17321; 325 NLRB No. 113) City of Commerce, Calif. April 10, 1998. Chairman Gould and Members Fox and Liebman denied the Employer's request for review of the Regional Director's decision and direction of election in which he found that the unit petitioned for by Teamsters Local 63 of all pick-up and delivery drivers, road drivers, dock workers, OS&D clerks, yard jockeys, and building maintenance employees is an appropriate unit, rejecting the Employer's contention that the unit must also include mechanics and the check bay attendant. The Regional Director found that the mechanics and the check bay attendant possess a separate community of interest from the employees in the petitioned-for unit. Chairman Gould and Members Fox and Liebman found this case "largely indistinguishable" from other Board decisions involving the Employer that raised virtually the same issue and which the Regional Director did not discuss. In those cases, the Board found a unit of drivers and dock workers, excluding mechanics, to be an appropriate unit. See Overnite Transportation Co., 322 NLRB 347 (1996), motion for reconsideration denied 322 NLRB 723 (1996).
[TEXT] [PDF]Member Hurtgen, dissenting, would grant review, because he is "concerned by the apparent willingness to exclude mechanics in a driver unit, or to include them, based controllingly on the desires of the petitioning union" and because "that legal position may well run afoul of Section 9(c)(5)." Member Hurtgen noted that in other cases involving the same Employer, the Board included the mechanics in the driver unit, because the Union sought such inclusion. See Cases 26-RC-7703 and 26-RC-7831, cited in Overnite, 322 NLRB 723. Member Hurtgen stated: "My colleagues do not try to factually distinguish these cases. Rather they simply declare that there was a different 'community of interest' in each case. However, this declaration cannot alter the fundamental point that the cases are factually the same."
Member Brame took no part in the consideration or disposition of this case.
(Chairman Gould and Members Fox, Liebman, and Hurtgen participated.)
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Ecclesiastical Maintenance Services, Inc. (2-UC-521; 325 NLRB No. 98) New York, N.Y. April 10, 1998. The Board asserted jurisdiction over the Employer, a non-profit corporation formed by the Roman Catholic Archdiocese of New York under the Membership Corporation Law of the State of New York which provides cleaning and maintenance services on a contract fee basis exclusively for facilities including churches, schools, and seminaries in the Archdiocese of New York. The Board reinstated the Regional Director's inadvertent dismissal of the petition, corrected his clarification of the unit, and excluded superintendents employed at Monsignor Farrell High School, Cardinal Spellman High School, Moore Catholic High School, Stepinach High School, Kennedy High School, Lady of Lurdes High School, Coleman High School, St. Partrick's Cathedral, Saint Joseph Seminary, and New York Catholic Center. Service Employees Local 74 argued that it is inappropriate for the Board to assert its jurisdiction because the Employer is a religiously affiliated entity whose operations are intrinsically part of the mission of the Roman Catholic Archdiocese of New York.
[TEXT] [PDF]Chairman Gould and Member Fox do not agree that the distinction made by the Regional Director between the facts in this case and those in Riverside Church, 309 NLRB 806 (1992), is of legal significance under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), and would overrule the Board's decision in that case.
(Full Board participated.)
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Regency Service Carts, Inc. (29-CA-17953-1, et al., 29-RD-758; 325 NLRB No. 94) Brooklyn, N.Y. April 10, 1998. Affirming the decision of an administrative law judge, the Board held that the Respondent violated Section 8(a)(1) of the Act by interrogating and threatening employees, promising them benefits for not engaging in union activities, and creating the impression that their union activities were under surveillance. Further, the Board agreed with the judge that the Respondent violated Section 8(a)(3) and (1) by laying off and refusing to recall six employees and canceling the health insurance of an employee because of their known, perceived, or suspected union activities.
[TEXT] [PDF]The Board remanded a portion of the proceeding to the judge for the taking of additional evidence and for the issuance of a supplemental decision concerning the viability of the parties' collective-bargaining agreement at the time of a walkout on January 14, 1994 or, even assuming the viability of the agreement, as to the applicability of the no-strike clause at that time under the circumstances of this case. The judge had found that Giovanni Trevisano, Roberto Vasquez, and Benjamin Ramirez engaged in a brief and spontaneous concerted protected walkout on January 14 to protest perceived adverse changes in their working conditions. The Respondent contended that the walkout was unprotected because it violated the no-strike clause.
In Case 29-RD-758, the Board affirmed the judge's recommendation to overrule the challenges to the ballots of Keith Jackson, Jerome Smith, and Rocco Lacona, because Jackson and Smith had a reasonable expectation of recall and Lacona was an assembler working within the production and maintenance unit. In the absence of exceptions, the Board adopted, pro forma, the judge's recommendation to overrule the challenges to the ballots of Marian Faryniarz, Lawrence Mollison, Jose Veliz, Jean Lubin, Theodore Jones, Rubin Ramos, Lendo Bronson, Anthony Thames, Yevgeny Chernyakov, and Ellsworth Quammie. The Board remanded the case to the Regional Director to open and count the 13 ballots and to issue a revised tally of ballots and the appropriate certification.
(Chairman Gould and Members Fox and Hurtgen participated.)
Charges filed by Giovanni Trevisano, Roberto Vasquez, and Benjamin Ramirez, individuals and Iron Workers Local 455; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn. Adm. Law Judge Michael O. Miller issued his decision April 26, 1995.
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Four Winds Services, Inc. (17-CA-18977; 325 NLRB No. 99) Oklahoma City, Okla. April 10, 1998. The administrative law judge concluded that the successor employer, Four Winds Services, Inc., had a duty to bargain with the union because the certified bargaining unit recognized by the predecessor (FKW, Inc.) was appropriate at all relevant times. The judge also found that Four Winds violated Section 8(a)(5) and (1) of the Act by refusing, since Jan. 2, 1997, to recognize and bargain with the union respecting a particular bargaining unit. The Board affirmed the judge's findings and stated: "We agree with the judge that the Respondent did not carry its burden of showing that the historical electricians unit is no longer appropriate simply because the wages and benefits of some unit members are governed by the Davis-Bacon Act and others are not. Such differences in compensation rates do not destroy a community of interest among employees and would not require that they be in separate units."
[TEXT] [PDF](Members Fox, Liebman, and Brame participated.)
Charge filed by Electrical Workers IBEW Local 1141; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oklahoma City, March 17-18, 1997. Decision issued by Adm. Law Judge Richard J. Linton, Dec. 2, 1997.
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Thomas McClellan d/b/a American Electric (32-CA-15619; 325 NLRB No. 101) Santa Cruz, Calif. April 10, 1998. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to hire union organizer Forrest Bayer and that its owner further violated Section 8(a)(1) by advising an employee that he would not hire anyone who had anything to do with the union.
[TEXT] [PDF](Chairman Gould and Members Fox and Liebman participated.)
Charges filed by Electrical Workers IBEW Local 234; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Santa Cruz, Feb. 6, 1997. Decision issued by Adm. Law Judge Gerald A. Wacknov, April 8, 1997.
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Complete Carrier Services, Inc. (5-CA-26085, 5-RC-14305; 325 NLRB No. 96) Baltimore, Md. April 7, 1998. The Board agreed with the administrative law judge who found that the Respondent violated Section 8(a)(1) of the Act by, inter alia, threatening job loss and plant closing, promising pay raises and higher mileage rates, and soliciting grievances from employees to dissuade them from supporting the union. In addition, the judge concluded that the Respondent violated Section 8(a)(3) and (1) by implementing the announced retroactive pay raises and other benefits. In adopting this judge's finding, the Board found it unnecessary to pass on his related finding that these acts also violated Section 8(a)(3). Pursuant to a stipulated election agreement, an election was held on March 22, 1996 in a unit of 10 drivers. With two ballots challenged, the union lost by a vote of six to two. The unfair labor practices occurred prior to the election. The Board set aside the election and affirmed the judge's order to recognize and bargain with the union, if requested.
[TEXT] [PDF](Members Fox, Hurtgen, and Brame participated.)
Charge filed by Teamsters Local 311; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Baltimore, Jan. 15-16, 1997. Decision issued by Adm. Law Judge Karl H. Buschmann, Sept. 30, 1997.
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Speedrack Products Group Limited (10-CA-29200, 10-RC-14124; 325 NLRB No. 109) Hamilton, Ala. April 9, 1998. On remand from the U.S. Court of Appeals for the District of Columbia, the Board reconsidered its earlier decision and instead applied Winsett-Simmonds Engineers, Inc., 164 NLRB 611 (1967), to find that the work-release inmates/employees (WR) here share a sufficient community of interest with the unit employees and accordingly are eligible to vote. In so doing the Board stated: "In agreement with Chairman Gould's dissent in the underlying representation case, we have decided to apply Winsett-Simmonds, supra, in which the Board held that the existence of a shared community of interest between WR employees and other employees will be determined solely on the status of the WR employees while in the employee relationship and not on what ultimate control the WR employees may be subjected to by prison authorities at other times."
[TEXT] [PDF]Chairman Gould, in a concurring opinion, agreed with the application of Winsett-Simmonds, but disagreed with Member Fox's view that it would be proper to expand the community of interest analysis. "...I would find that such correctional authority constraints are irrelevant to the community-of-interest analysis where those constraints do not differentiate work-release employees from other employees in their relationship to their employer," the Chairman said.
Member Fox, concurring, agreed with the result, but contrary to her colleagues, would modify the test set out in Winsett-Simmonds by "expanding it beyond its narrow focus on factors defining the employment relationship while the WR employees are actually on the job." In her view, the presence or absence of correctional authority constraints on other employee activities relating to working conditions also is relevant to the community of interest analysis.
(Chairman Gould and Members Fox and Hurtgen participated.)
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Nabors Alaska Drilling (19-CA-24334, et al.; 325 NLRB No. 105) Anchorage, Alaska April 8, 1998. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Ronald Mike Pearson, Steve Couture, and Frank Anderson for union or protected activity. The judge drew an inference of unlawful motivation when the Respondent fired Couture and Anderson allegedly for using marijuana but failed to follow its policy that requires an employee suspected of using drugs to submit to a urinalysis test. The judge also found that the Respondent did not rebut the presumption that it fired Pearson for engaging in union activity rather than its stated reason of firing him for disruptive behavior.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charges filed by Alaska State District Council of Laborers, and Steven Couture and Frank Anderson, individuals; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Anchorage, Alaska., Aug. 13-16, and Oct. 1-4, 1996. Decision issued by Adm. Law Judge Mary Miller Cracraft, March 27, 1997.
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Nabors Alaska Drilling, Inc. (19-CA-24152, 19-RC-13080; 325 NLRB No. 104) Anchorage, Alaska April 8, 1998. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by denying nonemployee union organizers access to remote camps during the preelection period, and by making certain anti-union comments to employees including the statement that it could find out how employees voted during the NLRB-run election. The judge recommended that the Nov. 1995 election, which the union lost, be set aside and a new election held. Members Fox and Hurtgen directed that a second election be held. Contrary to Chairman Gould, they do not regard this as an appropriate case for considering the overruling of Board precedent on the issue of nonmajority bargaining orders.
[TEXT] [PDF]Dissenting in part, Chairman Gould agrees that the Respondent engaged in unfair labor practices and objectionable election conduct but finds that "the traditional remedies imposed here, even coupled with the direction of a second election, are inadequate to restore to the Respondent's employees the truly free choice" of deciding whether or not they want the union to be their collective-bargaining representative. "I would order the Respondent to recognize and bargain with the Union for a reasonable period of time, and I would overrule Board precedent [Gourmet Foods, 270 NLRB 578 (1984)] holding that the Board lacks authority to impose a remedial bargaining ordering in the absence of a showing that a union has at one time achieved majority support among the employees it seeks to represent," the Chairman stated.
(Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Alaska State District Council of Laborers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Anchorage, Aug. 13-16, and Oct. 1-4, 1996. Decision issued by Adm. Law Judge Mary Miller Cracraft, April 8, 1998.
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Operating Engineers IUOE Local 150 (Brandenburg Industrial Service Company, Inc.) (13-CD-547; 325 NLRB No. 82) Gary, Ind. March 27, 1998. The charge in this Section 10(k) proceeding alleges that the Respondent, Operating Engineers Local 150, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer, Brandenburg Industrial Service, to assign certain work to employees it represents rather than to employees represented by Teamsters Local 142. After considering all the relevant factors, the Board concluded that Brandenburg employees represented by Operating Engineers are entitled to perform the work in dispute. This determination was based on the Employer's preference and practice; industry practice; employee skills, training, and safety; and economy and efficiency of operations.
[TEXT] [PDF](Members Fox, Hurtgen, and Brame participated.)
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F & A Food Sales, Inc. (17-CA-18391; 325 NLRB No. 74) Concordia, Kans. March 27, 1998. The administrative law judge concluded, and the Board agreed, that the Respondent violated Section 8(a)(1) and (5) of the Act by its failure and refusal to recognize and bargain with the Union on behalf of its drivers and helpers, by its failure to apply the terms of its expired Sept. 4, 1993 to Sept. 4, 1996 labor agreement with Local 70 to the drivers and helpers, and by imposition of a unilateral change in pay of its drivers and helpers. The Board distinguished Coca-Cola Bottling Co. of Wisconsin, 310 NLRB 844 (1993), and stated that when the Respondent restored its transportation department and hired the subcontractor's employees as drivers and helpers, these employees were covered by the unit description in the existing collective-bargaining agreement's recognition clause, and by the certification.
[TEXT] [PDF](Members Fox, Hurtgen, and Brame participated.)
Charge filed by Machinists and Aerospace Workers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Concordia, June 19, 1997. Decision issued by Adm. Law Judge Lawrence W. Cullen, Aug. 1, 1997.
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Seven Seventeen HB Denver Corporation, d/b/a Adam's Mark Hotel (27-CA 13800; 325 NLRB No. 91) Denver, Colo. March 31, 1998. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire eight individuals because they were affiliated with the Union and/or in order to avoid having to recognize and bargain with the Union; violated Section 8(a)(4) and (1) by refusing to hire A.J. Hamlin because the Union had filed charges against the Respondent with the Board; and violated Section 8(a)(1) by interrogating employee-applicants about their union membership. The judge found, and the Board agreed, that the Respondent did not violate Section 8(a)(1) and (3) by refusing to hire employee Robert Schlauder because the Respondent met its burden of proving that it would not have hired him even in the absence of his protected activity.
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated.)
Charge filed by Operating Engineers IUOE Local 1; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Denver, April 22-26, 1996. Decision issued by Adm. Law Judge Jay R. Pollack, Oct. 30, 1996.
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ABF Freight System, Inc. (22-CA-21347, 21388; 325 NLRB No. 93) Avenel, N.J. March 31, 1998. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing since about April 18, 1996 to apply the terms of the parties' April 1, 1994 to March 31, 1998 collective-bargaining agreement to all office clerical employees following the Respondent's transfer and relocation/consolidation of operations from its Linden and East Brunswick, New Jersey terminals to its Avenel, New Jersey terminal. In so doing, Chairman Gould does not rely on the judge's "alternate analysis." The Board amended the judge's recommended make whole remedy in certain respects. The Board agreed, however, with the judge that to the extent that the Respondent's unlawful failure to apply the terms of the collective-bargaining agreement may have led to improved terms and conditions of employment for unit employees, the Order shall not be construed as requiring or permitting the Respondent to rescind any such improvements unless requested to do so by the Union.
[TEXT] [PDF]The Board agreed with the judge that the Respondent violated Section 8(a)(5) by refusing to furnish Teamsters Local 701 requested information (employees' addresses), but it disagreed that the Respondent acted unlawfully in refusing to furnish the union with the employees' social security numbers. The Board held that the union did not demonstrate the relevance of such information. The Board also did not adopt the judge's finding that the Respondent's arrest of Union Business Agent Robert Dudik and its ejection of him from the Respondent's premises was a unilateral change in the scope of the contractual access provision, in violation of Section 8(a)(1), noting that no such unilateral change violation was alleged in the complaint or litigated at the hearing.
(Chairman Gould and Members Fox and Liebman participated.)
Charges filed by Teamsters Local 701; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, Sept. 24-27, 1996. Adm. Law Judge Robert T. Snyder issued his decision June 18, 1997.
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Auto Workers International (UAW) (Ford Motor Co.) (7-CB-10706; 325 NLRB No. 90) Detroit, Mich. March 31, 1998. The administrative law judge found, with Board approval, that the Respondent violated Section 8(b)(1)(A) of the Act by refusing to allow the Charging Party, because he was not a union member, to utilize the Respondent's internal appeals process to appeal a union decision not to pursue his discharge grievance to the final step of the contractually established grievance procedure, which allows for submission of the grievance to an impartial umpire. The Board modified the provisions of the judge's recommended Order to apply only to employees employed by the Ford Motor Company. The Board, in agreeing with the Respondent that the recommended provisions were too broad, found no evidence that the Respondent's appeals procedure can be used to reinstate a grievance of employees other than Ford employees.
[TEXT] [PDF]The Board also found the judge's order was too broad in that it would require posting of notices in places where the Respondent represents employees of employers other than Ford and that it was too narrow in that it would not require notices to be posted where the Respondent represents Ford employees in States other than Michigan. The Board therefore revised the judge's recommended Order to require the Respondent to post notices at its union offices and at other places where it customarily posts notices to Ford employees.
Chairman Gould would require the Respondent to revise its constitution to allow nonmembers the same appeal rights as members in grievance matters. Members Fox and Hurtgen declined to make such a change to the Order because neither the General Counsel nor the Charging Party has sought any modification of the Order and the issue has not been addressed.
(Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Jerry V. Kirby; complaint alleged violation of Section 8(b)(1)(A). Hearing at Detroit on Dec. 18, 1996. Adm. Law Judge Karl H. Buschmann issued his decision Aug. 5, 1997.
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Electrical Workers IBEW Local 3 (M.F. Electrical Service Co., Inc.) (2-CP-938; 325 NLRB No. 87) New York, N.Y. March 30, 1998. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(b)(7)(C) of the Act by engaging in at least 30 days of intermittent picketing over a 12-month period at various locations of M.F. Electrical Service Co. with an object of forcing or requiring its employees to accept or select the Respondent as their collective-bargaining representative. In addition to those cases cited by the judge, the Board relied on Retail Wholesale Union Local 1407 (J.M. Balter Co.), 215 NLRB 410, 412 (1974), and Los Angeles Building Trades Council, 183 NLRB 1032, 1038 (1970).
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated.)
Charge filed by M.F. Electrical Service Co.; complaint alleged violation of Section 8(b)(7)(C). Hearing at New York on Oct. 29, 1997. Adm. Law Judge Raymond P. Green issued his decision Dec. 12, 1997.
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Laborers Local 121 (Meissner & Wurst/Marshall Construction, Inc., a Joint Venture and Scott Co. of California) (36-CD-206; 325 NLRB No. 76) Eugene, Oreg. March 23, 1998. The charge in this Section 10(k) proceeding alleges that the Respondent, Laborers Local 121, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing Meissner & Wurst/Marshall Construction (MWM), to assign certain work to employees represented by Local 121 rather than to employees represented by Plumbers Local 290. After considering all the relevant factors, the Board concluded that Scott employees represented by Local 290 are entitled to perform the work in dispute. This determination was based on MWM's preference and current assignment.
[TEXT] [PDF](Chairman Gould and Members Fox and Brame participated.)
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Lake Holiday Associates, Inc. d/b/a Lake Holiday Manor (25-CA-22091, et al.; 325 NLRB No. 67) Demotte, Ind. March 20, 1998. The Board affirmed the Administrative Law Judge's findings of numerous Section 8(a)(1), (3), (4), and (5) violations committed by the Respondent. The Judge ordered that the Respondent reimburse the General Counsel for all litigation costs and attorneys' fees citing the Respondent's "many and pervasive" violations of the Act, "duplicity" in the two settlement attempts, and delays in bargaining with the Union which was certified 7 years before the hearing. The Board upheld the Judge's award of litigation costs and fees but relied instead on the "bad-faith" exception to the American Rule discussed in Frontier Hotel & Casino. The Board stated that the "litigation could have been obviated had Respondent honored either of its settlement commitments. The result would have been prompt relief for the Charging Party, and lower litigation costs for the General Counsel. Unhappily, we cannot redress the former harm. But we can, and should, redress the latter."
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charges filed by 1199 Indiana, Hospital & Health Care Employees; complaint alleged violations of Section 8(a)(1), (3), (4), and (5). Hearing at Rensselaer, Ind., Sept. 13, 1993. Decision issued by Adm. Law Judge Robert C. Batson, Sept. 28, 1995.
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Southeast Ohio Emergency Medical Services, Inc. (9-CA-32256, et al.; 325 NLRB No. 83) Gallipolis, Ohio March 25, 1998. The Board generally agreed with the Administrative Law Judges' dismissal of Section 8(a)(1), (3), and (4) charges against the Respondent after finding that the Respondent did not violate the Act when it denied an employee's request for union representation at a disciplinary interview and when it discharged and otherwise disciplined employees because they supported the Union and gave testimony in connection with Board proceedings. Chairman Gould and Member Hurtgen disagreed with Member Fox, who dissented in part, and stated that she would find that the Respondent violated the Act by its disciplinary suspension and ultimate discharge of employee John Caudill and by its issuance of a written reprimand to employee Chris Davis.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charges filed by United Mine Workers; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Jackson, Ohio, June 20-22, and Aug. 1-2, 1995. Decision issued by Adm. Law Judge Robert T. Wallace, May 15, 1996.
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United States Service Industries (5-CA-21399, 21691; 325 NLRB No. 78) Wash. D.C. March 20, 1998. The Board granted the General Counsel's motion to strike portions of the respondent's answer to the compliance specification, granted in part and denied in part the General Counsel's motion for partial summary judgment, and remanded the proceeding to the Regional Director to arrange a hearing before an administrative law judge. The hearing will be limited to the discriminatees' interim earnings and expenses and the mitigation of damages and willful loss of earnings; a determination of whether discriminatee Douglas Spencer is deceased and, if so, the date of his death; the hours of Rosa Berios, Donald Monroe, and Ketzi Ortiz; the wage rate of Donald Monroe; and consideration of whether the respondent's letters to Mary Burrell, Gisela Sawyer, and Ade Thomas constituted valid offers of reinstatement sufficient to toll backpay.
[TEXT] [PDF]The Board's decision and order in the underlying unfair labor practice proceeding is reported at 315 NLRB 285 (1994). On November 21, 1995, the U.S. Court of Appeals for the District of Columbia entered a judgment enforcing the Board's order. Subsequently, a controversy arose over the amounts of backpay due under the terms of the Board's Order.
(Chairman Gould and Members Fox and Liebman participated.)
General Counsel filed motion for partial summary judgment and to strike part of respondent's answer to compliance specification August 18, 1997.
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Carter & Sons Freightway, Inc. (17-CA-19247; 325 NLRB No. 64) Wichita, Kan. March 12, 1998. The Board affirmed the Administrative Law Judge's findings that the Respondent violated Section 8(a)(1) of the Act by threatening employees with closure of its terminal or loss of employment for engaging in union activities and interrogating employees about their union activities or sympathies; and violated Section 8(a)(3) and (1) by closing its Wichita terminal and discharging four employees because of their union activities. The Board agreed with the Judge's imposition of a Gissel bargaining order as the only effective remedy. Contrary to the Judge, however, the Board found that the Respondent did not show that its operating income increased following the closure of the Wichita terminal.
[TEXT] [PDF](Members Fox, Liebman, and Brame participated)
Charged filed by Teamsters Local 795; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Wichita, Aug. 27-28, 1997. Decision issued by Adm. Law Judge Jay R. Pollack, Oct. 17, 1997.
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Presbyterian University Hospital d/b/a University of Pittsburgh Medical Center (6-CA-26868; 325 NLRB No. 70) Pittsburgh, Pa. March 12, 1998. The Administrative Law Judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by hiring supervisors to perform bargaining unit direct patient care work without notice to, or consultation with, the Union. Members Fox and Liebman rejected the Respondent's argument that, inter alia, its conduct was lawful because of its past practices. "...[T]he Respondent cannot do what it did here - remove more bargaining unit work from the unit by creating new supervisory positions to perform such work without bargaining with the Union," they stated.
[TEXT] [PDF]Concurring, Member Hurtgen relied on the rationale that while the Respondent has in the past assigned bargaining unit work to newly created supervisory positions, it did not do so at a time when there were unit employees in layoff status, as in this instance. He stated: "In these circumstances, I would find that the employees in the bargaining unit suffered a significant detriment over and above that which they had experienced from the Respondent's unilateral actions in the past," and that the Respondent's hiring of supervisors under these facts involved a "significant departure from past practices."
(Members Fox, Liebman, and Hurtgen participated.)
Charges filed by JNESCO District Council 1, Operating Engineers; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Pittsburgh, Oct. 23, 1995. Decision issued by Adm. Law Judge Peter E. Donnelly, Feb. 9, 1996.
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Lancaster Typographical Union No. 70, Printing, Publishing and Media Workers Sector, Communications Workers 14817 (C.J.S. Lancaster and Graphic Communications Local 160-M) Lancaster, Pa., March 13, 1998. The charge in this Section 10(k) proceeding alleges that Lancaster Typographical Union No. 70 violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the employer to assign certain work to employees represented by No. 70 rather than employees represented by Graphic Communications Local 160-M. The Board determined that employees represented by No. 70 are entitled to perform the work in dispute based on the collective-bargaining agreements; the employer's preference; the relative skills of the employees; and the economy and efficiency of operations.
[TEXT] [PDF](Chairman Gould and Members Fox and Liebman participated.)
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Consec Security (22-CA-21682; 325 NLRB No. 71) Kearny, N.J. March 13, 1998. The Board affirmed the Administrative Law Judge's findings that the Respondent violated Section 8(a)(1) and (3) of the Act by threatening employees with discharge, and by reducing the salary, laying off, reassigning, constructively discharging, and discharging certain employee(s) because they engaged in protected concerted activity (striking and filing a representation petition). The Board rejected the Respondent's argument that its actions met the Wright Line test. With regard to its finding that one employee was constructively discharged when she was reassigned to a lesser paying job, the majority stated that the significant reduction in income impaired the employee's ability to meet living expenses to such an extent that the employee was forced to find other work. Chairman Gould and Member Fox stated: "In this regard, we disagree with Member Hurtgen's view that Livsey should work for the lesser rate, file a charge with the Board, and be made whole for her loss, plus interest." On this issue, Member Hurtgen dissented and stated: "In my view, this reduction in pay was not so 'onerous as to force [Livsey] to leave.' Rather, this is a classic case in which the employee can 'work now and grieve later.'" The Board agreed with the Judge's imposition of a Gissel bargaining order.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Teamsters Local 102; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing held at Newark, N.J., March 12-14, and April 3 and 24, 1997. Decision issued by Adm. Law Judge D. Barry Morris, Aug. 20, 1997.
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House of Raeford Farms, Inc. (11-CA-16407; 325 NLRB No. 69) Raeford, N.C. March 16, 1998. The Administrative Law Judge concluded, with Board approval, that the Respondent did not violate Section 8(a)(1) of the Act when it terminated seven employees who left work early because the employees were not engaged in protected concerted activity. The Board agreed with the Judge that the record did not establish that the employees engaged in anything other than an attempt to determine unilaterally the terms and conditions of employment - conduct which is not protected. As the Judge stated: "Employees who decide to start a holiday early are not engaged in protected activity."
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated)
Charge filed by Food and Commercial Workers Local 204, Union No. 46; complaint alleged violation of Section 8(a)(1). Hearing at Raeford, May 12-13, 1997. Decision issued by Adm. Law Judge George Carson II, July 9, 1997.
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Domsey Trading Corp., et al. (29-CA-14548; 325 NLRB No. 66) Brooklyn, N.Y. March 10, 1998. The majority consisting of Chairman Gould and Members Fox and Liebman, denied the Respondent's request for special appeal of the Administrative Law Judges' decision ordering the Respondent to pay for the cost of interpreting the testimony of non-English speaking witnesses at the backpay hearing. Members Fox and Liebman stated that their opinion in this proceeding is consistent with their dissent in George Joseph, 325 NLRB No. 34 (Jan. 9, 1998). Here, they found that the Judge properly required the Respondent to pay for the cost of interpreting the testimony of the remaining discriminatee-witnesses at the backpay hearing. They explained their rationale in part as follows: "As indicated by the judge, it was the Respondent's burden to establish interim earnings and/or failure to mitigate, and the General Counsel therefore has no obligation to call or question the discriminatees. Although the General Counsel nevertheless chose to call several of the 200 discriminatees to testify during the initial days of the hearing, the General Counsel subsequently deciding not to call any more of the discriminatees in light of the judge's ruling that the Respondent would begin the questioning of the remaining discriminatee-witnesses to the stand to testify." In addition, Members Fox and Liebman noted that there is no claim or evidence that the Respondent is financially unable to pay for the costs of interpreting services. They continued: "In taking this position, we do not presume to be deciding the issue for all time. Indeed, we agree with our colleagues in the George Joseph majority that it is desirable to address the subject in the future through a rulemaking proceeding, in which we could receive 'input from the labor-management community' and other interested members of the public. * * * Until such standards are developed, however, judges have no authoritative guidance to help them avoid what the judge in this proceeding reasonable feared - giving a blank check to the party requesting payment for interpretation of all testimony of non-English speaking witnesses it chose to call."
[TEXT] [PDF]Chairman Gould, concurring, cited the majority opinion in George Joseph and stated: "I agree that the Respondent's request for special appeal should be denied. However, I would do so on the grounds that the judge did not abuse his discretion."
Members Hurtgen and Brame, dissenting, noted that "the federal courts impose this requirement in cases where the Government is bringing an action (civil or criminal) against a defendant." They stated: "Concededly, there are limited financial resources available to the Government. For this reason, Section 1827(g)(2) of the [United States] Code provides that implementation is 'contingent upon the availability of funds.' Similarly, if our position leads to a situation where the Government cannot afford to pay for interpretation services, we would reconsider our position."
(Full Board participated.)
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GATX Logistics, Inc. (8-CA-27101; 325 NLRB No. 63) Cleveland, Ohio March 9, 1998. The Board affirmed the Administrative Law Judge who found that the Respondent did not violate Section 8(a)(1) or (5) of the Act when it implemented its final contract proposal on Dec. 5, 1994 because a valid impasse existed privileging the implementation of the final offer.
[TEXT] [PDF](Members Fox, Liebman and Brame participated.)
Charge filed by Teamsters Local 507; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cleveland, Feb. 24-26, 1997. Decision issued by Adm. Law Judge Bruce D. Rosenstein, June 30, 1997.
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Georgia Power Co. (10-CA-28441; 325 NLRB No. 59) Atlanta, Ga. March 10, 1998. The Board upheld the Administrative Law Judge's conclusion that the Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally changing its other post retirement benefits for unit employees without bargaining with the Union as the representative of the employees in the bargaining unit described in the collective-bargaining agreement. Citing Midwest Power Systems, Inc., the Board stated that prospectively announced changes in retirement benefits will affect currently active unit employees who will retire on or after the announced implementation date, and therefore were mandatory bargaining subjects. Concerning the waiver issue, the majority stated that it cannot find that the Union clearly and unmistakably waived its right to bargain over the changes in post-retirement benefits for current employees.
[TEXT] [PDF]Member Hurtgen, dissenting in part and concurring in part, stated with regard to the waiver issue that the Respondent was privileged to make the change of April 21, but not privileged to refuse to bargain on or after April 21 about rescinding that change.
(Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Electrical Workers IBEW Local 84; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Atlanta, Nov. 18, 1996. Decision issued by Adm. Law Judge William N. Cates, Feb. 14, 1997.
Broadway, Inc. d/b/a K-Bar-B Youth Ranch (15-CA-14035; 325 NLRB No. 62) New Orleans, La. March 6, 1998. The Board agreed with the Administrative Law Judge that the General Counsel failed to show, as alleged, that the Respondent discharged and suspended the discriminatees because of a belief, albeit mistaken, that they were engaged in protected concerted activity. The Judge dismissed the Section 8(a)(1) complaint -- an action affirmed by the Board.
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated.)
Charge filed by Gail Padgett, An Individual; complaint alleged violation of Section 8(a)(1). Hearing at New Orleans, July 28-30, 1997. Decision issued by Adm. Law Judge William N. Cates, Aug. 21, 1997.
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Aneco, Inc. (12-CA-15738; 325 NLRB No. 61) Orlando, Fla. Feb. 27, 1998. The Board reversed the Administrative Law Judge's dismissal of an allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire applicant Winston Cox, who identified himself during an interview as a union business agent. The Judge found that the General Counsel failed to establish any nexus between the Respondent's union animus and its decision not to hire Cox. However, the Board found that the record does not support the Judge's inference that in failing to hire Cox the Respondent actually relied on any concerns stemming from its misperception that Cox would have to leave his union job to take a job with the Respondent. The General Counsel met the Wright Line test and the Respondent failed to show that it would not have hired Cox even in the absence of his union activities.
[TEXT] [PDF](Chairman Gould and Members Fox and Liebman participated.)
Charge filed by Electrical Workers IBEW Local 606; complaint alleged violation of Section 8(a)(3) and (1) of the Act. Hearing at Tampa, Jan 21-23, 1997. Decision issued by Adm. Law Judge Philip P. McLeod, May 14, 1997.
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Sunrise Nursing Home (3-CA-19950, 20311; 325 NLRB No. 57) Oswego, N.Y. Feb. 27, 1998. The Board affirmed the Administrative Law Judge's conclusions that the Respondent unlawfully unilaterally changed the pay rate of employee Bernadette Grinnell without prior timely notice to the Union and without affording the Union an opportunity to bargain with the Respondent in violation of Section 8(a)(1) and (5) of the Act, and unlawfully unilaterally took back accrued vacation from bargaining unit employees which was not in excess of 20 days in violation of Section 8(a)(1).
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated.)
Charges filed by Service Employees Local 200A; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oswego, Jan. 6-8, 1997. Decision issued by Adm. Law Judge Jesse Kleiman, Sept. 19, 1997.
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The L. Suzio Concrete Co. (34-CA-7001; 325 NLRB No. 58) Meriden, Conn. Feb. 27, 1998. The Board affirmed the Administrative Law Judge's conclusion that the Respondent violated the Act by refusing to recognize and bargain with the Union as the collective-bargaining representative of its dispatch employees. With regard to the issue of whether the refusal to recognize and bargain violated Section 8(a)(1) and (5), the Judge along with the Board rejected the Respondent's reliance on Burns and the argument that the presence of special circumstances warranted reconsideration of the unit issue previously decided by the Board based on a consideration of all the evidence presented in both the representation and unfair labor practice proceedings. The Board agreed with the Judge's conclusion that the Respondent did not establish that its actions on or after April 10, 1995 changed the aggregates dispatcher (AD) position to a supervisory one under Section 2(11). Therefore, the Judge and the Board concluded, its continued refusal on or after April 10 to recognize and bargain with the Union violates Section 8(a)(1) and (5). (The Judge also stated that in the event that a reviewing authority disagrees and concludes that the April 10 action of Respondent has changed the supervisory status of the AD position, he would find that the Respondent violated Section 8(a)(1) and (5) by unilaterally removing bargaining unit work.)
[TEXT] [PDF](Chairman Gould and Members Liebman and Hurtgen participated.)
Charge filed by Teamsters Local 677; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Hartford, Conn., Nov. 6-7, 1996. Decision issued by Adm. Law Judge Steven Fish, Feb. 27, 1998.
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U.S. Corrections Corporation, d/b/a Lee Adjustment Center (9-RC-16773; 325 NLRB No. 54) Beattyville, KY. Feb. 11, 1998. The issue before the Board was whether the Board's certification of the Petitioner (Kentucky Corrections Officers Association) as the collective-bargaining representative of the employer's guard employees should be revoked because of an asserted indirect affiliation with a union representing nonguard employees, in contravention of Section 9(b)(3) of the Act. The Regional Director ruled in the affirmative. The Board reversed and concluded that the evidence is insufficient to establish a current affiliation between the Petitioner and Service Employees Local 557, a union representing nonguard employees. Therefore, the Board found, revocation of the Petitioner's certification is not warranted.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
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Connecticut Health Care Partners, d/b/a Woodlands Health Center (34-CA-7260, 7263, 34-RC-1364; 325 NLRB No. 51) Waterbury, Conn. Feb. 10, 1998. At an election, 21 ballots were cast for the Petitioner and 21 votes against representation, with two challenged votes - a number determinative of the election. The Board agreed with the Administrative Law Judge that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employees Lisa Magrano and Yvonne Gilliams because of their activities on behalf and in support of the Union. The judge also ruled that the challenges to the ballots of Magrano and Gilliams should be overruled and that the Petitioner's conduct was sufficient to overturn the results of the election. The Board ordered that the two challenged ballots be opened and counted, and that if the revised tally of ballots reveals that the Petitioner has received a majority of the valid ballots cast, the Regional Director shall set aside the election and conduct a second election.
[TEXT] [PDF](Chairman Gould and Members Liebman and Brame participated.)
Charges filed by New England Health Care Employees District 1199; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, Conn., Sept. 25-27, and Nov. 5, 1996. Decision issued by Adm. Law Judge Steven Fish, Sept. 5, 1997.
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Operating Engineers Local 14-14B (Island Lathing & Plastering, Inc.) (29-CD-463; 325 NLRB No. 53) Queens, N.Y. Feb. 10, 1998. The charge in this Section 10(k) proceeding alleges that the Respondent, Operating Engineers Local 14-14B, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees it represents rather than to employees represented by Laborers' Local 30. The Board affirmed the Hearing Officer's rulings and found that employees represented by Local 30 are entitled to perform the work in dispute. In reaching this conclusion, the Board relied on the factors of employer preference and past practice, and economy and efficiency of operations.
[TEXT] [PDF](Chairman Gould and Members Fox and Brame participated.)
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United Insurance Company of America (12-RC-8127; 325 NLRB No. 47) Saint Petersburg, Fla. Jan. 30, 1998. In this Decision and Direction of Election, the Board adopted the Regional Director's findings and recommendation to open and count 4 challenged ballots pursuant to an election held Aug. 21, 1997, where the tally was 12 for and 8 against United Food and Commercial Workers International. The Board remanded the case to the Regional Director for further action.
[TEXT] [PDF](Chairman Gould and Members Fox and Liebman participated.)
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Austin J. DeCoster d/b/a DeCoster Egg Farms, L&L Cleaning Inc., Maine Contract Farming, et al. (AO-347; 325 NLRB No. 48) Portland, Me. Feb. 4, 1998. The Board denied the Maine Labor Relations Board's petition for an Advisory Opinion, citing Brooklyn Bureau of Community Service, 320 NLRB 1148 fn.2 (1996), for the proposition that Advisory Opinion proceedings are not designed to resolve disputed issues of fact.
[TEXT] [PDF](Members Liebman, Hurtgen, and Brame participated.)
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Page Litho, Inc. (7-CA-30106, et al.; 325 NLRB No. 46) Detroit, Mich. Jan. 30, 1998. In this Supplemental Order, the Board granted the Charging Party Union's (Graphic Communications Detroit-Toledo Local 289) request for review of the Regional Director's conclusion that the actions of certain former striking employees tolled the Respondent's backpay obligation and waived the employees' right to reinstatement. The request for review was granted with respect to two issues: (1) whether the Respondent's March 30, 1990 letter constituted a valid offer of reinstatement; and (2) whether certain employees waived reinstatement by insisting on the presence of the Union's attorney when they responded to the March 30 letter. These issues were remanded for a hearing before an Administrative Law Judge.
[TEXT] [PDF]Dissenting, in part, Chairman Gould would deny the Charging Party Union's request for review of the Regional Director's compliance determination in all respects, citing D'Armigene, Inc., 148 NLRB 2 (1964).
(Chairman Gould and Members Fox and Liebman participated.)
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Group Health, Inc. (18-CA-12025, 18-CB-3144; 325 NLRB No. 49) Minneapolis, Minn. Jan. 30, 1998. This Supplemental Decision and Order on Remand was issued pursuant to the Board's request for a remand from the Eighth Circuit, for consideration in light of the Sixth Circuit's Buzenius decision. The main issue is whether a union-security clause requiring that employees become and remain members of the Union, and then setting forth the limitations of the requirement, satisfies the concerns expressed by the Eighth Circuit in Bloom v. NLRB, 30 F.3d 1001 (1994). Here, the Board approved the settlement of an employee's claim that the wording of a union security clause mislead him into believing that he was required to join the Union and pay full dues as a condition of employment. The majority found that the union security clause had been rewritten and now requires employees to "become and remain members" of the union and informs them that they can choose not to pay full union dues and fees. Members Fox, Liebman, and Hurtgen stated: "Given the age of this case and its procedural posture, we have determined that this case is not an appropriate vehicle in which to address the issue raised by the Sixth Circuit's Buzenius decision. Rather, after careful consideration, the Board has decided to grant the motion to amend the settlement agreements and to approve the second revised settlement agreements. We find that they are reasonable and appropriate under Independent Stave, 287 NLRB 740 (1987), and they conform to the intent of the Eighth Circuit's decision in Bloom.
[TEXT] [PDF]Chairman Gould, concurring, stated: "I agree with the majority's decision to grant the motion to amend the settlement agreements and to approve the agreements and dismiss the complaint. Contrary to my colleagues' assertion, however, I believe that this is an appropriate forum in which to address my partial adoption of the Buzenius rationale in my concurring opinion in Monson Trucking. I am of the view that the Board should adopt my concurring opinion in Monson Trucking, that union-security clauses requiring unit employees to become 'members' or 'members in good standing,' without concurrent definition, are facially invalid under the National Labor Relations Act."
Member Brame, dissenting, stated: "I would not approve the settlement agreements in this case, both because they fail to remedy defects explicitly identified by the court of appeals, and because they would put the Board in the business of issuing advisory opinions in unfair labor practice proceedings without litigation of the issues."
(Full Board participated.)
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Coca-Cola Bottling Company of Buffalo, Inc. (3-CA-14611; 325 NLRB No. 40) Buffalo, N.Y. Jan. 23, 1998. In this Third Supplemental Decision and Order, the Board affirmed the Administrative Law Judge's conclusion that under Gitano, 308 NLRB 1172 (1992), the presumption that the Respondent's new facility at Orchard Park was a separate appropriate unit has been rebutted.
[TEXT] [PDF](Chairman Gould and Members Fox and Leibman participated.)
Administrative Law Judge Howard Edelmen issued his Supplemental Decision, June 26, 1996.
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VF Distribution Center (11-CA-17264; 325 NLRB No. 42) Reidsville, N.C. Jan. 23, 1998. The Board affirmed the Administrative Law Judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1) of the Act by implementing a rule prohibiting employees from talking about the Union and by more closely monitoring the activities of two employees who held leadership positions in the Union.
[TEXT] [PDF](Chairman Gould and Members Fox and Brame participated.)
Charge filed by Union of Needletrades, Industrial and Textile Employees UNITE Local 2610; complaint alleged violation of Section 8(a)(1). Hearing at Wentworth, N.C., March 14, 1997. Decision issued by Adm. Law Judge D. Randall Frye, Aug. 28, 1997.
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Portland Airport Limousine Co., Inc., d/b/a PALCO (1-CA-32659; 325 NLRB No. 38) Scarborough, Me. Jan. 21, 1998. The Administrative Law Judge found that the Respondent did not violate Section 8(a)(1) of the Act when it discharged employee Wayne Speed on Feb. 22, 1995 because he refused to drive a truck, which he believed to be unsafe. The Board found, contrary to the judge, that Speed's conduct was concerted activity. In so holding, the Board noted that there was a conversation between Speed and fellow employee Emile Pelchat regarding the truck's safety, and that once Speed and Pelchat had their conversation and Pelchat protested to management about the reassignment of the trucks, Speed no longer was acting in furtherance of an individual complaint.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charge filed by Teamsters Local 340; complaint alleged violation of Section 8(a)(1). Hearing at Westbrook, Me., Aug. 16, 1995. Decision issued by Adm. Law Judge Joel P. Biblowitz, Oct. 13, 1995.
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Al-Hilal Corp., Inc. d/b/a Flint Iceland Arenas (7-CA-39032; 325 NLRB No. 43) Flint, Mich. Jan. 23, 1998. At the beginning of an unfair labor practice hearing, before any evidence was introduced, the Respondent and the Union reached a non-Board settlement whereby three employees alleged to have been subject to unlawful conduct would each receive $7500 and resign. In addition, the Union agreed to file a disclaimer of interest in representing the Respondent's employees. The General Counsel objected to the settlement, but the Administrative Law Judge approved it on the record. On appeal, the General Counsel urged the Board to revoke the Judge's approval because the settlement does not meet the Independent Stave standards, 287 NLRB 740 (1987).
[TEXT] [PDF]A Board majority, consisting of Members Fox, Leibman, and Hurtgen, granted the General Counsel's motion for special permission to appeal the Judge's ruling, revoked his approval of the settlement, and remanded the proceeding to the Judge. Members Fox and Leibman found, contrary to Chairman Gould's dissent, that the settlement does not satisfy the standards of Independent Stave. They stated: "Although there is no fraud or duress alleged and no evidence of previous misconduct by the Respondent (the third and fourth Independent Stave factors), there are serious problems with respect to the first two factors." With regard to the first, they noted that the General Counsel "vigorously opposes" the settlement. With regard to the second, "given the number and seriousness of the unremedied violations of Section 8(a)(1), (3), and (5) here, we cannot find that avoiding the risks of litigation is a reasonable trade-off. We agree with our dissenting colleagues that under Independent Stave, a settlement need not remedy all alleged violations in order to be acceptable. "But here the alleged unlawful conduct was directed at the entire workforce which the Union was seeking to organize, and the settlement remedies virtually no injury to employee rights other than providing payments to three employees and a neutral letter of recommendation for one of them," they stated. Addressing Chairman Gould's dissent, Members Fox and Leibman stated that their opinion was not a retreat from Independent Stave. "[W]e join the Chairman in wholeheartedly endorsing Independent Stave[. . . .]"
Concurring, Member Hurtgen stated that he "cannot accept the settlement as a resolution of the entire case" because "significant and important parts of the case are wholly untouched by the settlement," including serious Section 8(a)(1) and (3) alleged violations, although he would leave intact the settlement as it pertains to the three employees and the Union's agreement to disclaim representation. "I wish to state that my decision is a reluctant one. By nature and experience, I strongly believe in settlements," he wrote. "Thus, if Respondent could improve its offer to some extent, I would hope that all parties (including the General Counsel) would accept it. And even if someone objected, I would review the matter in light of my strong disposition toward accepting settlements."
Dissenting, Chairman Gould stated that the majority's decision to reject the Judge's approval is inconsistent with Independent Stave. Chairman Gould wrote: "As we noted in Independent Stave, the Board '... has long had a policy of encouraging the peaceful non-litigious resolution of disputes.' This is a major consideration in the adoption of the new settlement judge procedure which has worked so effectively and diminished our caseload. We should be encouraging--not discouraging--the voluntary negotiation of settlements in lieu of protracted and frequently wasteful litigation. Here, where there is no showing that there is disagreement with the settlement or that it was entered into through fraud or coercion, we ought to take into account the fact that risks are frequently involved in protracted litigation, a point that we made in Independent Stave. *** But, labor and management come together all too infrequently. In this era of scarce Agency resources, we should be wary and cautious in the promotion of public rights not yet proven to have been violated where both sides seek a settlement."
Dissenting, Member Brame would uphold the Judge's approval of the settlement agreement. Noting the majority's recognition that not all complaint allegations were addressed by the settlement, Member Brame stated: "The fact, however, that not all complaint allegations are remedied does not in itself compel the Board's disapproval of a settlement under Independent Stave. Rather, the standards of that case provide for the consideration of many factors in assessing the adequacy of a settlement, with no one factor being determinative. Here, the Charging Party, all the discriminatees specifically named in the complaint, and the judge were satisfied with the terms of the settlement. Additionally, the Union has disclaimed any interest in representing the unit employees for the purposes of collective bargaining. Lastly, to the extent that the settlement may not address certain allegations relating to harassment, violence or threats of violence, individuals are not without recourse, given the existence of criminal and civil remedies available to them and the broad knowledge of those remedies in the workplace. For the foregoing reasons, and additionally considering the risks inherent in litigation, I find the settlement reached here reasonable and that any further involvement by the Board is unnecessary."
(Full Board participated.)
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Oil Workers Local 1-591 (Burlington Northern Railroad) (19-CC-1933; 325 NLRB No. 45) Anacortes, Wash. Jan. 27, 1998. The Board ruled in a 3-2 decision that the union violated the Act by picketing the gate to a Texaco refinery reserved for the use of Burlington Northern Railroad, when it did not have a primary dispute with Burlington, with an object of forcing Burlington and other neutral persons to cease handling or transporting Texaco products or doing business with Texaco.
[TEXT] [PDF]Chairman Gould concurred with Members Hurtgen and Brame in ruling against the union. In dissent, Members Fox and Liebman would find the union's picketing in this case was primary in nature and did not have a secondary objective and thus was not unlawful.
The majority, however, stated: "Burlington is the type of unoffending employer envisioned by Congress as deserving of the Act's protection against secondary picketing. It is a neutral employer under contract to another neutral employer (Texaco) to transport the product of a neutral (Texaco) to customers who are neutrals."
(Full Board participated.)
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Star Kist Caribe, Inc. and Mani Can, Inc. (24-RC-7795; 325 NLRB No. 39) Mayaguez, P.R. Jan. 20, 1998. In this Supplemental Decision and Order Remanding, the Board considered objections to a second election held Dec. 18-19, 1996 in which the tally of ballots shows 1318 for and 2274 against the petitioner, with 156 challenged ballots, an insufficient number to affect the results. The Regional Director overruled a portion of petitioner's Objection No. 5(h), which alleged that the content of a Sept. 23, 1996 leaflet constituted objectionable conduct, on the ground that the leaflet was distributed outside the critical period for holding a second election. The Regional Director identified Nov. 14, 1996 as the commencement of the critical period for the second election, which is the date of the Decision and Direction of Second Election issued by the Board. Contrary to the Regional Director, the Board found that the critical period for a second election commences as of the date of the first election which, in this case, was held on June 19-20, 1996. Accordingly, the alleged objectionable leaflet of Sept. 23, 1996 falls within the critical period. The Board remanded this issue to the Regional Director for a recommendation as to whether the alleged conduct warrants setting aside the election.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated).
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Jefferson Smurfit Corp. (13-CA-33283, et al; 13-RC-19060; 325 NLRB No. 35) Crown Point, Ind. Jan. 20, 1998 The Board agreed with the administrative law judge's conclusions that the respondent violated Section 8(a)(1), (3), and (4) by, inter alia, soliciting employees' grievances and impliedly promising to remedy them in order to discourage employees from selecting the union; threatening to withhold wage increases because the union filed objections to the election, and by warning and discharging union supporter Daniel Nieto . The Board ordered that the March 2, 1995 election results, in which the union lost by a tie vote of 10 to 10, be set aside and that the Regional Director conduct a second election.
[TEXT] [PDF](Chairman Gould and Members Fox and Hurtgen participated.)
Charges filed by Teamsters Local 142; complaints alleged violations of Section 8(a)(1), (3), and (4). Hearing at Chicago, Ill., June 12-14, 1996 and Jan. 24, 1997. Decision issued by Adm. Law Judge Nancy M. Sherman, July 2, 1997.
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United Refrigerated Services, Inc. (10-CA-28499, et al., 10-RC-14602; 325 NLRB No. 36) Birmingham, Ala. Jan. 16, 1998. The Board found meritless the respondent's exception asserting that the Board erred in failing to pursue enforcement of the respondent's subpoena ad testificandum served on its former general manager, Dennis Lawrence. Further, the Board agreed with the administrative law judge's findings that the respondent violated Section 8(a)(3) and (1) of the Act by discharging Jeremiah James and Phillip Johnson and by suspending Terris King because of their activities for the Steelworkers; and violated Section 8(a)(1) by creating the impression of surveillance of employee union activity.
[TEXT] [PDF]The Board disagreed with the judge's finding, relying on the union's victory in a May 12, 1995 representation election, that a bargaining order remedy is appropriate. The Board agreed with the respondent that the results of the May 12 election cannot be relied on to establish the union's majority status because the parties thereafter stipulated to set aside the election. The General Counsel did not offer any other basis for supporting his requested bargaining order. However, the Board found, in agreement with the judge, that the respondent engaged in objectionable conduct during the critical period leading up to the second election held on June 30, 1995. The Board set aside the second election and directed that a third election be held.
(Chairman Gould and Members Fox and Liebman participated.)
Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Birmingham, April 16-18, 1996. Adm. Law Judge Robert C. Batson issued his decision May 15, 1997.
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George Joseph Orchard Siding, Inc. (19-CA-25003; 325 NLRB No. 34) Seattle, Wash. Jan. 9, 1998. Chairman Gould and Members Hurtgen and Brame denied the General Counsel's request for special permission to appeal the administrative law judge's order directing that the Agency supply and pay for an interpreter to interpret testimony given by non-English speaking witnesses called by the respondent during the trial in this proceeding. The majority wrote: "In agreement with the judge, we find that administrative law judges have the discretionary authority under the National Labor Relations Act, the Administrative Procedure Act, and the Board's Rules and Regulations to appoint interpreters in unfair labor practice proceedings. Although such authority is not specifically set forth therein, we find that the power to appoint interpreters is inherent in the administrative law judge's duties and powers to regulate the course of the hearing." The majority limited its ruling to the facts of this case, finding that the standards to be applied in future cases may more appropriately be addressed through rulemaking.
[TEXT] [PDF]Members Fox and Liebman, dissenting, would grant the General Counsel's request for special permission to appeal and reverse the judge's order, noting: (1) the absence of any specific Board precedent or authority for an order requiring the Agency to provide and pay for interpreting services for a respondent's witnesses; and (2) the lack of any clear standards for identifying cases that warrant such an order. Members Fox and Liebman stated: "As indicated by the General Counsel, upholding the judge's order in these circumstances may set a harmful precedent and lead to similar orders in future cases, thereby imposing significant additional costs on the Agency and further straining the agency's limited budgetary resources."
Chairman Gould and Members Hurtgen and Brame said that although they "share" the concern about the budgetary impact of the judge's ruling if applied in future cases, the General Counsel "has not set forth sufficient data to determine the extent of the potential financial burden on the Agency."
(Full Board participated.)