NLRB Decisions - 1998 July-December

The court further noted that this defense (denoted the "mere possibility" defense) applies only to applicants for positions that involve access to confidential labor relations material which, by definition, includes labor nexus positions. The Board remanded the case to the judge since the "mere possibility" defense was set out by the court and was not known by the parties as a possible defense in this proceeding until after the hearing had closed.

EFCO Corp. (17-CA-6911; 327 NLRB No. 71) Monett, MO Dec. 31, 1998. The Board agreed with the administrative law judge's conclusions that the Respondent's Employee Benefit Committee, Employee Policy Review Committee, and Safety Committee are labor organizations unlawfully dominated by the Respondent in violation of Section 8(a)(2) and (1) of the Act because the means used by the Respondent to involve employees' in decision-making were unlawful. However, the Board reversed the judge and concluded that the Employee Suggestion Screening Committee did not violate Section 8(a)(1) and (2) because the means chosen to obtain employee input did not impinge on the employees' rights under the Act. With regard to certain 8(a)(1) findings by the judge, the Board reversed the judge and found that the Respondent did not create the impression of surveillance and did not unlawfully solicit grievances from employees. [HTML] [PDF]

Charge filed by Carpenters; complaint alleged violations of Section 8(a)(2) and (1). Hearing at Monett, July 12-14, 1994. Decision issued by Adm. Law Judge George F. McInerny, March 7, 1995.

Ekstrom Electric, Inc. (13-CA-34882, et al.; 327 NLRB No. 67) Batavia, IL Dec. 31, 1998. The Board severed the allegation that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide Electrical Workers IBEW Local 461 with requested copies of disciplinary records of unit employees, and remanded the allegation to the administrative law judge for a supplemental decision. The judge did not rule on the allegation, finding that it had not been alleged in the complaint and that the General Counsel had not moved to amend the complaint to include it. The General Counsel excepted and the Board found, contrary to the judge, that the record discloses that, on May 27, 1998, the General Counsel moved to amend the complaint to include the allegation and that the judge granted the motion and admitted into evidence the amendment to the complaint. Although the allegation is properly before the Board, it was severed and remanded because the Board was unable to determine its merits on the basis of the record. The Board modified the judge's recommended Order to more closely reflect the Section 8(a)(1), (3) and (5) violations found and to correct certain inadvertent omissions. [HTML] [PDF]

Charges filed by Electrical Workers IBEW Local 461; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Chicago, March 25-27, April 6 and 7, and May 26 and 27, 1998. Adm. Law Judge William G. Kocol issued his decision Aug. 31, 1998.

Pioneer Concrete of Arkansas, Inc. (26-CA-18607 and 18610; 327 NLRB No. 64) Conway, Jacksonville, Little Rock, and North Little Rock, AR Dec. 31, 1998. Relying on Banknote Corp. of America v. NLRB, 84 F.3d 637, 647 (2d Cir. 1996), enfg. 315 NLRB 1041 (1994), where the court likewise found a successor relationship to exist, the Board affirmed the administrative law judge's finding that Pioneer Concrete of Arkansas, Inc. is a successor employer that violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Teamsters Local 878 and Operating Engineers Local 382 as the exclusive representative of certain employees at its facilities formerly operated by Gilliam Brothers. [HTML] [PDF]

Charges filed by Teamsters Local 878 and Operating Engineers Local 382; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Little Rock on July 13, 1998. Adm. Law Judge Pargen Robertson issued his decision Sept. 17, 1998.

The Grand Rapids Press of Booth Newspapers, Inc. (7-CA-40290; 327 NLRB No. 72) Grand Rapids, MI Dec. 31, 1998. The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire substitute pressmen James Burns and Charles Lewis Jr. because they engaged in an economic strike on behalf of the Graphic Communications (Detroit Newspapers) Local 13N, against their principal employer, the Detroit Newspaper Agency. The judge also found, with Board agreement, that the Respondent violated Section 8(a)(5) by unilaterally restricting the hiring of substitutes to those who reside in the Grand Rapids area, without notifying the Union or obtaining its consent. [HTML] [PDF]

Charge filed by Graphic Communications (Detroit Newspapers) Local 13N; complaint alleged violation of Section 8(a)(3) and (5). Hearing at Grand Rapids, Feb. 24, 1998. Decision issued by Adm. Law Judge C. Richard Miserendino, June 25, 1998.

Solar International Shipping Agency, Inc. (20-RC-17464; 327 NLRB No. 69) San Francisco, CA Dec. 31, 1998. The full Board endorsed and clarified the General Counsel's long-standing policy to provide and pay for interpreters in representation proceedings. The ruling came after the Board granted the Employer's request for special permission to appeal the hearing officer's ruling that the Region would pay for interpreting the testimony of the Employer's witnesses only to the extent that their testimony is relevant to the issues and the Region determines it is needed to complete the record. The Board found that the policy of providing interpreters at representation proceedings, originally implemented in 1978, applied to the instant pre-election representation proceeding and that the Region therefore had an obligation, at least presumptively, to pay for an interpreter for the Employer's witnesses at the hearing. Stating that in times of scarce resources the agency "must take all reasonable steps to reduce its costs, including interpreter costs," the Board said that there are "a number of appropriate ways" to do this. For example, the Board noted, it would be appropriate to request the party that intends to call the non-English speaking witness to identify, either through a formal offer of proof or other method, the nature of the testimony to be given by the witness. Such testimony could then be limited "to exclude irrelevant or overcumulative material," it explained. Here, the Employer declined to provide a more specific offer of proof in response to the hearing officer's request. The Board remanded to the Region and the hearing officer to determine whether a more specific showing is required prior to retaining the interpreter for the Employer's witnesses. [HTML] [PDF]

Holder Construction Company (12-CA-17766; 327 NLRB No. 68) Orlando, FL Dec. 29, 1998. The Board found no merit in the General Counsel's exceptions to the administrative law judge's failure to provide a remedy requiring the Respondent to offer reinstatement to the two discriminatees. No exceptions were filed to the judge's finding that the Respondent violated Section 8(a)(1) of the Act by discharging Russell Gold and William Shirley because of their concerted protected activities related to raising safety concerns with the Respondent. The General Counsel did not seek reinstatement at trial, but argued in exceptions that the Board may impose a remedy not requested by the General Counsel pursuant to its authority under Section 10(c) of the Act. In deciding against doing so and adopting the judge's proposed order, the Board noted that the General Counsel affirmatively disclaimed any intent to seek reinstatement for the two discriminatees at trial and that Shirley, who was separately represented by counsel at the hearing, neither objected to the General Counsel's disclaimer nor excepted to the judge's failure to include a reinstatement remedy. The Board did not rely on the judge's finding that the completion of the construction project from which the employees had been discharged precluded him from ordering reinstatement. [HTML] [PDF]

Charge filed by Russell Gold, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Orlando, Aug. 10 and 11, 1998. Adm. Law Judge William N. Cates issued his decision Sept. 3, 1998.

Endicott Forging & Manufacturing, Inc. (3-CA-18477, et al.; 327 NLRB No. 66) Endicott, NY Dec. 28, 1998. In this Second Supplemental Decision and Order, the Board addressed certain compliance specification issues with regard to the Respondent. In response to the Acting General Counsel's Motion for Summary Judgment, the Board granted summary judgment on the total amount of certain medical expenses alleged, but denied summary judgment on the actual amount of the Respondent's liability for those expenses and remanded that issue to the Regional Director for a hearing. The Board granted summary judgment on the issue of certain bonuses alleged to be due, the amounts owed each employee for the 1995 bonus, and the total amount owed for the 1996 annual bonus, with that amount held in escrow until the amount due each individual employee is ascertained by the Regional Director. Summary judgment was also granted on the issue of the amounts owed employees represented by Boilermakers Local 1101 as a result of the Respondent's failure to remit their loan repayments to the Section 401(k) pension plan in accordance with the compliance specification. [HTML] [PDF]

Laidlaw Transit, Inc. (26-RC-7948; 327 NLRB No. 63) Little Rock, AK Dec. 24, 1998. A Board majority of Members Fox and Brame agreed with the hearing officer and found that election results must be set aside and a new election held because the Board agent accepted a ballot cast by an employee after the polls had closed. The tally of ballots was 97 votes for and 97 votes against the petitioner, Office and Professional Employees, Arkansas Self-Help Local 2001, with one challenged ballot (that of the late-arriving employee), a number sufficient to affect the outcome. The majority noted that in the absence of an agreement by the parties or extraordinary circumstances, the hearing officer correctly concluded that the election should be set aside. Dissenting Member Hurtgen would remand the case to obtain the Board agent's testimony on "the critical issue" of whether the parties agreed to allow the employee to vote. The majority disagreed with the dissent stating that a remand would require "disregarding a reasoned and well-grounded credibility resolution" and reversing a hearing officer's ruling "without a showing of prejudicial error." They also noted the Board's longstanding policy against Board employees appearing as witnesses at Board proceedings. [HTML] [PDF]

United Parcel Service (7-CA-33137, et al.; 327 NLRB No. 65) Saginaw, MI Dec. 24, 1998. Reviewing the administrative law judge's Supplemental Decision on Remand, a Board majority of Members Fox and Liebman agreed with the finding that the Respondent violated Section 8(a)(1) of the Act by enforcing its no-distribution rule in the check-in area and by discriminatorily applying the rule against employee David Dunning, who distributed union literature in the check-in area. The majority concluded, as did the judge, that the check-in area is a nonwork area, or at most, a mixed use area, and that distribution therefore cannot be barred. The judge found, and the majority agreed, that the Respondent violated Section 8(a)(1) by interfering with Dunning's distribution of union literature in, or near, a nonwork area. The Board adopted the judge's previous finding that the Respondent violated Section 8(a)(4) by discharging Dunning because he filed unfair labor practice charges with the Board. Finally, the majority agreed with the judge that the Respondent violated Section 8(a)(1) by removing a protected publication from a bulletin board because it was critical of the Respondent. [HTML] [PDF]

Dissenting in part, Member Hurtgen agrees that the Respondent's discharge of Dunning violated Section 8(a)(4), but does not agree that this act independently violated Section 8(a)(1). He does not find that that the Respondent illegally enforced its no-distribution rule in the check-in area or that the Respondent discriminatorily applied its rule against Dunning in the check-in area. Member Hurtgen also finds that the Respondent was privileged to remove a union posting from a bulletin board.

Adm. Law Judge Judith Ann Dowd issued her Supplemental Decision on Remand on Feb. 20, 1998. The Unions involved here are Teamsters Locals 486 and 243.

Teamster Local 40 (Customized Transportation, Inc.) (8-CD-465; 327 NLRB No. 60) Huron, OH Dec. 14, 1998. In this Section 10(k) proceeding, the Employer alleged that the Respondent, Teamsters Local 40, 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 employees represented by United Auto Workers Region 2, Local 101. After considering all relevant factors, the Board concluded that the employees represented by Teamsters Local 40 are entitled to perform the dock work in dispute based on certifications, past practices, skills and training, current assignment, and Employer preference. The Board further concluded that the disputed milk run driving work should be assigned to employees represented by Teamsters Local 40 and UAW Local 101 according to the Employer's percentage of freight/point of delivery method. They based this conclusion on the factors of past practice, current assignment, and Employer preference. [HTML] [PDF]

Hallmor, Inc. (6-CA-28619; 327 NLRB No. 61) Bethel Park, PA Dec. 11, 1998. The majority of Members Liebman and Brame found that the Regional Director, after initially deferring further proceedings on the instant unfair labor practice charge under Collyer Insulated Wire, properly revoked his decision to defer and resumed processing the charge when the Respondent reneged on its commitment not to raise a timeliness defense before an arbitrator. Contrary to the dissent, the majority found that the Regional Director's decision to resume processing the charge was clearly correct under well-established deferral principles. Thus, they denied the Respondent's motion to dismiss and remanded the proceeding to the Regional Director for further appropriate action. Dissenting Member Hurtgen finds it appropriate to defer to the arbitrator's award in accordance with Olin Corp. and Spielberg Mfg. Co. (The union involved in this proceeding is Machinists Local Lodge 52, District Lodge 83.) [HTML] [PDF]

Carpenters Health & Welfare Fund (4-CA-26244; 327 NLRB No. 39) Philadelphia, PA Dec. 8, 1998. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) and (3) of the Act when it threatened employees with unspecified reprisals because of their protected wage complaints. With regard to the judge's finding that the Respondent violated Section 8(a)(1) and (3) when its cochairman promised and granted employee benefits to discourage union activity, the Board agreed but based its finding on different reasons. With regard to the discharge of employee Tommasina Storino because she engaged in union activity, the Board affirmed the judge's finding that she was discharged in violation of Section 8(a)(1) and (3) after concluding that the Respondent failed to satisfy its Wright Line burden of showing that Storino would have discharge absent her union activity. [HTML] [PDF]

Charge filed by United Food and Commercial Workers Local 1776; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, Jan. 20-21, 1998. Decision issued by Adm. Law Judge James L. Rose, March 20, 1998.

Electrical South, Inc. (11-CA-16048, et al.; 327 NLRB No. 58) Greensboro, NC Dec. 11, 1998. In pertinent part, the Board agreed with the administrative law judge's finding that on June 19, 1995, the parties reached an impasse in their negotiations on the subject of health insurance, and that the Respondent was thus privileged to implement its health insurance proposal on July 1. However, the Board did not agree with the judge's finding that the Respondent had no obligation to address the issue of health insurance when the Charging Party raised the issue during a negotiation meeting on July 21. Accordingly, the Board reversed the judge on this issue and found that the Respondent's refusal to discuss insurance on July 21 violated Section 8(a)(5) of the Act. [HTML] [PDF]

Charges filed by Amalgamated Clothing and Textile Workers; complaints alleged violations of Section 8(a)(1), (3), and (5). Hearing at Winston-Salem, NC, Sept. 30-Oct. 1-3, and Nov. 4-5, 1996. Decision issued by Adm. Law Judge George Carson II, March 17, 1997.

Hospital San Pablo, Inc. (24-CA-7611; 327 NLRB No. 59) Bayamon, PR Dec. 15, 1998. The majority of Members Fox and Liebman agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Abidal Arroyo for engaging in union activity. The majority disagreed with the Respondent's contention that the judge erred when he inferred that the Respondent knew of Arroyo's union activity. They stated, contrary to Member Hurtgen who dissented on this issue, that the absence of direct evidence of the Respondent's knowledge of Arroyo's union activity is not fatal to the General Counsel prima facie case. The judge's findings of other Section 8(a)(1) violations were adopted by the Board. [HTML] [PDF]

Charge filed by Federacion de Trabajadores de la Empresa Privada (FETEMP); complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Juan, PR, Sept. 2-4, and Nov. 19, 1997. Decision issued by Adm. Law Judge William G. Kocol, Jan. 20, 1998.

Lampi LLC (10-CA-29531; 327 NLRB No. 51) Huntsville, AL Nov. 30, 1998. The majority of Members Fox and Liebman agreed with the administrative law judge that the Respondent violated Section 8(a)(3), (4), and (1) of the Act by discharging employee Connie Neely, an outspoken union advocate who testified in a prior Board proceeding. Although the employee "exhibited various shortcomings," the majority noted that under Wright Line an employer must do more than show that it had reasons that could warrant discharging the employee; it must show that it would have done so even if the employee had not engaged in protected activities. Considering the Respondent's own handbook and the way it categorized Neely's infractions, the Respondent failed to establish the Wright Line affirmative defense, the majority concluded. Dissenting, Member Brame noted the evidence of Neely's job performance and concluded that the Respondent would have discharged Neely even in the absence of her protected activities. [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 558; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Huntsville, May 6, 20 and July 9, 1997. Decision issued by Adm. Law Judge Richard J. Linton, Feb. 17, 1998.

Greenfield Die and Manufacturing Corp. (7-CA-37441, et al.; 327 NLRB No. 52) Canton, MI Nov. 30, 1998. The majority adopted the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Reno Camilleri and, based on that discharge, that the Regional Director properly revoked a settlement agreement covering alleged Section 8(a)(1) violations. They also agreed with the judge that the Respondent violated Section 8(a)(1) by various threats and an interrogation made by Supervisor Stan Klieb, and by a letter of Respondent's owner Don Hinkle which interfered with employee Joseph Provo's right to engage in protected activities. Contrary to dissenting Member Brame, however, the majority of Members Fox and Liebman also adopted the judge's findings that Hinkle coercively interrogated Provo and employee Elmer Runyon and that the Respondent unlawfully discharged Provo because of his union activities. [HTML] [PDF]

Charges filed by Teamsters Local 247; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Detroit, MI, May 29-30, 1996. Supplemental decision issued by Adm. Law Judge Karl H. Buschmann, Nov. 8, 1996.

Towne Ford, Inc. (20-CA-26250 and 26447; 327 NLRB No. 48) Redwood City, CA Nov. 30, 1998. The Board affirmed the administrative law judge's dismissal of certain complaint allegations in Case 20-CA-26250, agreeing that under Nickles Bakery of Indiana, 296 NLRB 927 (1989), the 8(a)(3) and (1) allegations in the amended charge were insufficient to support the 8(a)(5) complaint allegations that the Respondent refused to bargain in good faith with Machinists Peninsula Lodge 1414 and, thus, the strike which began on July 27 and ended on August 5, 1994 was not converted to an unfair labor practice strike and was an economic strike from its inception. [HTML] [PDF]

Members Fox and Liebman affirmed the judge's finding that the Respondent violated Section 8(a)(3) by laying off, or refusing to reinstate in the absence of substantial business reasons, strikers Ray Haverson, Ron Cosgrove, and Steven Stewart at the end of the economic strike but, they found, contrary to the judge, that apprentice painters Jack Flanagan and Patrick Hefferman were entitled to be recalled to the newly created polisher position on their offers to return because it was substantially equivalent to their prestrike position. Members Fox and Liebman agreed with the judge that the Respondent violated Section 8(a)(1) by attempting to blacklist service advisor Ray Haverson through the statement of its service manager Tim Toland to a potential employer, Angelo Tufo, that Haverson was a strong union supporter who "would do whatever the Union said." They explained: "Although Toland gave Haverson a good recommendation as a worker, we find Toland's unsolicited statement regarding Haverson's union loyalties constituted a warning that Haverson was someone with unquestioning loyalties to the Union, and was therefore likely to interfere with Haverson's application for employment."

Dissenting in part, Member Brame, in finding that the Respondent did not violate Section 8(a)(1) by attempting to blackball Haverson, stated: "In this regard, in light of Toland's very strong recommendation, his further observation, to the effect that Haverson was a strong union supporter, could not reasonably be said to be an attempt to cause Tufo not to hire Haverson. Indeed, this would have been impossible in any event because, as the judge himself noted, Tufo had already offered Haverson a job prior to calling Toland." Member Brame also would find that the Respondent did not violate Section 8(a)(3) by refusing to recall Flannagan and Hefferman, agreeing with the judge that the polisher position was not substantially equivalent to their prestrike positions as apprentice painters.

Charges filed by Machinists Peninsula Lodge 1414; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at San Francisco, June 20-23 and Aug. 28, 1995. Adm. Law Judge Jay R. Pollack issued his decision Feb. 16, 1996.

Webco Industries, Inc. (17-CA-19047 and 19120; 327 NLRB No. 47) Sand Springs, OK Nov. 30, 1998. The Board upheld the administrative law judge's findings that, during the course of the Steelworkers' organizing campaign among the Respondent's employees in February and March 1997, the Respondent violated Section 8(a)(1) of the Act by disparaging the Union, threatening employees that they would lose benefits and that negotiations would start from "ground zero" if the Union became the employees' collective-bargaining representative, and telling employees who supported the Union that they should quit. In a reversal of the judge, the Board dismissed an allegation that the Respondent engaged in surveillance of a union meeting that employees attended on April 4. The General Counsel failed to establish that company vice president Obermark's presence in the area was other than coincidental, the Board held. [HTML] [PDF]

Members Fox and Liebman agreed with the judge that the Respondent unlawfully suspended and disciplined several employees and unlawfully discharged Charles Thornton. The judge found that the suspension of Stephanie Almy and the warning and termination of Thornton were based on the Respondent's erroneous belief that they had engaged in unacceptable conduct while soliciting on the Union's behalf. Members Fox and Liebman found it unnecessary to decide whether the actions violated Section 8(a)(3) as well as Section 8(a)(1) because it would not affect the remedy. However, they disagreed with the Respondent's assertion that since Almy was reinstated to her former position with backpay she suffered no injury and no violation should be found, noting, among other things, that the Respondent has not fully repudiated its conduct with respect to Almay by adequately publishing such repudiation, assuring employees that it will no longer interfere with their Section 7 rights, or refraining from further violations. See Passavant Memorial Area Hospital, 237 NLRB 138 (1978). Members Fox and Liebman affirmed the judge's finding that the Respondent's president, Dana Weber, disparaged the Union by telling employees that the Union was responsible for its unlawful discipline of four employees.

Member Hurtgen, dissenting in part, would find that Weber's remarks were protected by Section 8(c) and that a remedy is not required with respect to Almy. He noted that although Almy was unlawfully suspended on March 1, 1997, the suspension was revoked on March 15, 1997, and full backpay was granted. "In my view, this prompt corrective action is to be encouraged, and it obviates the necessity for a remedial decree," Member Hurtgen concluded. He added that while Almy was subjected to 8(a)(1) conduct after her reinstatement, "her remedy of reinstatement and backpay remained intact, and the 8(a)(1) violation is being remedied here. I do not agree that the 8(a)(1) violation rendered the remedy ineffective."

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tulsa, Sept. 23-25, 1997. Adm. Law Judge Clifford H. Anderson issued his decision May 4, 1998.

Schnurmacher Nursing Home (34-CA-8486; 327 NLRB No. 56) White Plains, NY Nov. 30, 1998. The Board majority of Members Fox and Liebman granted the Acting General Counsel's Motion for Summary Judgment in this test of certification case, found violations of Section 8(a)(5) and (1), and ordered the Respondent to bargain with Service Employees Local 1199 on request. They noted that the U.S. Circuit Courts of Appeal are split on the issue of whether charge nurses or licensed practical nurses are statutory employees and on the absence of a per se rule as to the supervisory status of charge nurses. Here, the majority relied on evidence that the charge nurses' disciplinary authority was minimal and the lack of evidence of authority to suspend employees or adjust grievances. Citing his dissent in Troy Hills Nursing Home, 326 NLRB No. 159 (Sept. 30, 1998), Member Brame stated that "in light of the close scrutiny given by the courts of appeal to the Board's decisions in this area, simply granting summary judgment is not an adequate substitute for the Board's full and careful examination of the record through a grant of review in the underlying representation proceeding." [HTML] [PDF]

Kurdziel Iron of Wauseon, Inc. (8-CA-28930; 327 NLRB No. 44) Wauseon, OH Nov. 30, 1998. Members Fox and Liebman found, contrary to the administrative law judge, that the General Counsel introduced sufficient evidence to show that the Respondent had an established practice of granting increases at its Wauseon facility that were pegged to increases given at another facility (the Britt plant); and that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by unilaterally withholding an annual wage increase from bargaining unit employees at the Wauseon facility in October 1996 after the Union was certified to represent them. Members Fox and Liebman found that the withholding of the increase violated Section 8(a)(3) and (1) based on Plant Superintendent Schwert's statement that the increase that had been withheld would be granted if the employees voted the Union out. Members Fox and Liebman agreed with the judge's finding that the Respondent's threat of a unilateral reduction in lunch and break times violated Section 8(a)(5) and (1) and that allegations that the Respondent engaged in direct dealing with a unit employee over wages should be dismissed. [HTML] [PDF]

Member Hurtgen, dissenting in part, would dismiss all of the above allegations. He found that the General Counsel failed to establish that the Respondent had any established pattern or practice of granting wage increases and that the alleged statement of April 1997 does not establish discrimination in October 1996. In finding no basis for concluding that the Respondent violated Section 8(a)(5) by announcing to three employees a reduction in lunch and break times, Member Hurtgen noted that the General Counsel did not allege, and the judge did not find, that this conduct was an independent violation of Section 8(a)(1). He noted that there was no showing that the Respondent intended to accomplish the change without bargaining. "Further, and most importantly, no change (unilateral or otherwise) ever occurred," Member Hurtgen said.

In the absence of exceptions, the Board adopted the judge's dismissal of the complaint allegations that the Respondent violated Section 8(a)(1) and (5) through the conduct of Bob Robertson with respect to posting a notice to employees regarding reduction of their lunch and break periods.

Charge filed by Auto Workers International; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Toledo on Oct. 6, 1997. Adm. Law Judge Margaret M. Kern issued her decision Dec. 12, 1997.

Superior of Missouri, Inc. (14-RC-11946; 327 NLRB No. 53) St. Louis, MO Nov. 30, 1998. Affirming the Regional Director's recommendations, the Board overruled Employer's Objections 1, 2, and 3; and certified Teamsters Local 682, winner of the June 26, 1998 election by a 41-to-20 vote, as the exclusive representative of truckdrivers and helpers working at the Employer's St. Louis, Missouri facility. In the absence of exceptions, the Board adopted pro forma the Regional Director's recommendation that Objection 4 be overruled. [HTML] [PDF]

In his report, the Regional Director stated that the "parties agreed" to reschedule the election from June 19 to June 26, 1998. The Employer in its exceptions contended that the Regional Director "unilaterally rescheduled" the election. In adopting the Regional Director's recommendation to overrule Objections 1 and 2, the Board found it unnecessary to resolve this disagreement. Even assuming the Regional Director unilaterally rescheduled the election, the Board found that he acted within his discretion to do so. As for the Employer's contention that laboratory conditions were destroyed by a rumor that the Employer "bought off" the Board in order to delay the election, the Board noted that here, as in Alladin Plastics, Inc., 182 NLRB 64 (1970), there is no evidence that the Union was the source of the alleged rumor, and the Employer had the opportunity to respond to it. Employer's Objection 3 essentially alleges an objectionable waiver of union initiation fees based upon statements given by two unit employees.

Branch International Services, Inc.; Ben Ruegsegger Trucking Service, Inc.; J & L Transport, Inc.; B.I.S., Inc. of Ohio (7-CA-34973, et al.; 327 NLRB No. 50) Kawkawlin, MI and Valley View, OH Nov. 30, 1998. The Board agreed with the administrative law judge that J & L Transport, Inc. (J & L) is the alter ego of Ben Ruegsegger Trucking Service, Inc. (RTS) and is therefore obligated to recognize and bargain with Teamsters Local 486, to apply the terms of the contract between the Union and RTS, and to remedy the unfair labor practices of its alter ego, RTS. Thus, the Board found it unnecessary to pass on the General Counsel's exceptions to the judge's failure to address allegations that J & L is jointly and severally liable for remedying the unfair labor practices of RTS and Branch International Services, Inc. (BIS), under NLRB v. Burns Security Services, 406 U.S. 272 (1972); and Golden State Bottling v. NLRB, 414 U.S. 168 (1973). [HTML] [PDF]

B.I.S., Inc. of Ohio (BISO) excepted to the judge's findings that it is also liable as a joint employer with J & L for the constructive discharges and that J & L violated Section 8(a)(5) by refusing to provide the Union with requested information. The Board disagreed with the judge's finding that BISO is liable for the constructive discharge of William Shook on September 3, 1992, noting that BISO's status as a joint employer of the unit employees did not commence until September 6, 1992.

No exceptions were filed to the judge's findings that RTS and J & L violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union, failing to honor the collective-bargaining agreement, and unilaterally changing terms and conditions of employment; that RTS violated Section 8(a)(1) by telling employees that it would go out of business if the Union did not permit it to purchase less costly insurance; Section 8(a)(3) and (5) by terminating operations in retaliation for the Union's refusal to modify the contract; and Section 8(a)(5) and (1) by telling employees that they would have to apply to work for J & L to retain their seniority and by dealing directly with employees; and that J & L, RTS, and BIS violated Section 8(a)(3) by constructively discharging employees.

Charges filed by Teamsters Local 486; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Bay City, June 7 and 8, July 20 and 21, and Sept. 19-21; and at Detroit, July 18 and 19, 1994. Adm. Law Judge Steven M. Charno issued his decision May 9, 1995.

Teamsters Local 222 (Geneva Rock Products, Inc.) (27-CD-231; 327 NLRB No. 49) Orem, UT Nov. 30, 1998. In this Section 10(k) proceeding, the Employer alleged that Teamsters Local 222 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 Operating Engineers IUOE Local 3. After considering all relevant factors, the Board concluded that employees represented by the Operating Engineers are entitled to perform the disputed work. In reaching this conclusion, the Board found that, on balance, the factors of Employer's preference and past practice, area and industry practice, and economy and efficiency of operations have greater weight than the factor of collective-bargaining agreements which favors assignment to employees represented by the Teamsters. [HTML] [PDF]

Viking Industrial Security, Inc. (29-CA-14365, et al.; 327 NLRB No. 43) Brooklyn, NY and Demerast, NJ Nov. 30, 1998. The Board affirmed the administrative law judge's conclusion that Viking New York and Viking New Jersey constituted a single-enterprise under Board law as of the time of employee Marrero's unlawful discharge, and thus that Viking New Jersey is derivatively liable for the unfair labor practices previously found. The majority of Members Fox and Liebman found, unlike dissenting Member Brame, that Viking New Jersey has a continuing obligation to make an unconditional offer of employment to Marrero and that until it does, it shall remain liable for additional backpay. [HTML] [PDF]

Supplemental hearing to determine backpay held in Brooklyn, NY, Oct. 23-25, 1995 and Jan. 25, 1996. Supplemental Decision issued by Adm. Law Judge Raymond P. Green, May 13, 1996. The Union involved is this proceeding is Allied International Union.

Gadsden Tool, Inc. (10-CA-30005-2; 327 NLRB No. 46) Rainbow City, AL Nov. 30, 1998. A Board majority of Members Fox and Liebman agreed with the administrative law judge's finding that the Respondent engaged in bad-faith surface bargaining with the Union even though the parties ultimately reached a complete collective-bargaining agreement. The majority concurred with the judge that the Respondent entered negotiations with no intention of reaching agreement, even though, to the Respondent's surprise, the Union capitulated on several issues and accepted a comprehensive bargaining proposal that the Respondent itself was never fully willing to approve. The Respondent's refusal to sign that agreement violated Section 8(a)(5) of the Act, the full Board agreed. But unlike dissenting Member Hurtgen, the majority concluded that "[t]o remedy only the unlawful failure to sign would leave unremedied the Respondent's overall bad faith that infected the parties' bargaining." Member Hurtgen, stated that the majority's opinion is "analytically difficult and counterintuitive." He would not find a refusal to bargain in bad-faith but would find a violation in the refusal to sign and honor the agreement. [HTML] [PDF]

The Board disagreed with the judge's recommendation that the Respondent be required to execute a contract that would have changed the substantive terms of the parties' agreement by altering its effective dates. It made modifications to the Order consistent with Board authority.

Charge filed by Retail, Wholesale, and Department Store Union; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Birmingham, AL, April 13, 1998. Decision issued by Adm. Law Judge Pargen Robertson June 24, 1998.

Donald A. Pusey, Inc. (4-CA-22774, et al.; 327 NLRB No. 41) Media, PA Nov. 27, 1998. A Board majority of Members Fox and Liebman upheld the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act when it failed to hire applicant Thomas Linder because of his union affiliation and sympathies. Unlike Member Hurtgen who dissented on this issue, the majority rejected as pretextual the Respondent's reason that it did not hire Linder because of its policy of not hiring applicants who would be taking a substantial pay cut. No exceptions were filed to the judge's dismissal of allegations that the Respondent violated Section 8(a)(3) by failing to hire three other applicants, or the judge's finding that the Respondent violated Section 8(a)(1) by threatening employees with layoffs if they selected a union. [HTML] [PDF]

Charges filed by Electrical Workers IBEW Local 654; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Philadelphia, June 18-19, 1997. Decision issued by Adm. Law Judge Martin J. Linsky, Sept. 30, 1997.

Auto West Collision, Auto Collision Services Centers Corporation and Serramonte Auto Plaza Body Shop, Inc. (20-CA-28039, 28049; 327 NLRB No. 37) Colma, CA Nov. 24, 1998. The Board granted the General Counsel's motion for summary judgment, finding that the Respondent's answer to the amended consolidated complaint has been withdrawn by the terms of the informal settlement agreement entered into by the Respondent and approved by the Regional Director and that, as further provided in the settlement, all allegations of the amended consolidated complaint are true. The settlement agreement required the Respondent to reinstate one discriminatee (the other four discriminatees waived reinstatement), to remove from its files any reference to the discharges, to post a notice, and to pay backpay totaling $49,400.60 to the five discriminatees in ten installment payments of $4940.06 each. The Respondent failed to make any of the required payments since the fifth installment and to comply with the provisions requiring it to notify the discriminatees and the Region that it has removed any reference to the discharges from its files. [HTML] [PDF]

Charges filed by Machinists District Lodge 190, Local Lodge 1414; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment Oct. 16, 1998.

Shepherd Tissue, Inc. (26-CA-17062, et al., 26-RC-7710; 327 NLRB No. 28) Memphis, TN Oct. 30, 1998. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by polling and interrogating employees concerning their union sympathies during the course of the Union's organizing campaign; violated Section 8(a)(3) and (1) by discharging, and subsequently suspending, Terry Whittier and by issuing a disciplinary warning to union election observer Robert Wayne Dodson; and that it did not unlawfully discharge Tim Black Ray. The Board found that the Respondent established that, even in the absence of Ray's union activities, it would have discharged him for threatening Willie Simer that he would start up machinery with Simer inside unless Simer removed his "Vote NO" button. [HTML] [PDF]

Members Liebman and Hurtgen also affirmed the judge's recommended dismissal of complaint allegations relating to the discharge of Robert Wayne Dodson for presenting hangman's nooses to his black coworker, Russell Kirkwood. "That act, a graphic reminder of racial lynchings (in the South where the instant facility is located), would tend to inflame racial tensions among the predominantly minority work force," Members Liebman and Hurtgen said. "Contrary to our dissenting colleague, we adopt and rely on the judge's findings that the Respondent had previously manifested a serious awareness and genuine concern about conduct that might inflame racial tensions, and that it had taken action on prior occasions to avert such tensions by painting over racial writings on the restroom walls." Member Fox, dissenting on this issue, noted the General Counsel's initial showing that antiunion considerations were a motivating factor in the Respondent's decision to discipline Dodson. In her view, the Respondent failed to establish that it would have taken the same disciplinary action against Dodson even absent such considerations.

Charges filed by the Paperworkers International and Robert Dodson and Terry Whittier, Individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing held on Aug. 19-21, 1996. Adm. Law Judge Lawrence W. Cullen issued his decision Aug. l, 1997.

Pacific Custom Materials, Inc. a wholly-owned subsidiary of Texas Industries, Inc. (32-CA-15271, 15498; 327 NLRB No. 23) Port Costa, CA Oct. 30, 1998. The Board upheld the administrative law judge's findings that the Respondent is a successor employer obligated to bargain with Longshoremen's and Warehousemen's Local 6 and that the Respondent violated the Act by, among other things, its unlawful refusal to hire certain former employees of the predecessor employer in order to avoid the successor bargaining obligation. The Board found that the Respondent additionally violated Section 8(a)(1) based on conversations between an official of the Respondent and employees of the predecessor who were interested in employment by the Respondent. The General Counsel filed exceptions to the judge's failure to find the additional violations. [HTML] [PDF]

Member Hurtgen, dissenting in part, does not agree that Respondent (a successor) was obligated to bargain about its initial terms and conditions of employment. In doing so, he disagreed with his colleagues' contention that the Respondent's 8(a)(3) violations preclude it from asserting its right to set the initial terms and conditions of employment. Member Hurtgen stated: "The 8(a)(3) violations yield their own compensatory remedy of reinstatement and backpay. It is excessive and punitive to use those 8(a)(3) violations to take away the legitimate defense to an 8(a)(5) allegation concerning the setting of initial terms."

Charges filed by Longshoremen's and Warehousemen's Local 6; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing at Oakland on 12 dates between June 10 and Aug. 12, 1996. Adm. Law Judge Jay R. Pollack issued his decision Jan. 3, 1997.

Modern Electric Co. (20-CA-27392; 327 NLRB No. 25) San Mateo, CA Oct. 30, 1998. The Board found, contrary to the administrative law judge, that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to consider union organizer Bill Petros for employment. Although the Board agreed that the Respondent's failure to hire Petros was not unlawful, it did so for different reasons. The Board concluded that the Respondent unlawfully failed to consider Petros for employment because of his union affiliation but that the Respondent nevertheless demonstrated at the hearing that, had it considered Petros' application, it would have hired another applicant based on objective, lawful considerations. [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 617; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Francisco on Feb. 20, 1997. Adm. Law Judge Jay R. Pollack issued his decision April 1, 1997.

Custom Mattress Manufacturing, Inc. (4-RC-19206; 327 NLRB No. 30) Philadelphia, PA Oct. 30, 1998. Members Fox and Liebman overruled the challenge to the ballot of Nasim Din, finding, unlike the hearing officer, that the evidence failed to establish that Din is a statutory supervisor. Members Fox and Liebman remanded the case to the Regional Director to open and count Din's ballot and for further appropriate action. Member Hurtgen, dissenting, would affirm the hearing officer's finding that Din is a supervisor and would sustain the challenge to her ballot. The tally of ballots for the election held October 3, 1997 shows 6 for and 5 against Steel Workers District l0, Local 404-U. In an Order dated November 26, 1997, the Board adopted the Regional Director's recommendation to sustain the challenge to the ballot of Maria C. Lozada. [HTML] [PDF]

K & W Electric, Inc. (18-CA-14218; 327 NLRB No. 21) Cedar Falls, IA Oct. 30, 1998. Citing Independent Stave Co., 287 NLRB 740, 743 (1987), and Woodworkers Local 3-433 (Kimtruss Corp.), 304, NLRB 1, 2 (1991), the Board approved a Settlement Stipulation entered into by the Respondent and the General Counsel, providing for the entry of a consent order by the Board and consent judgment by any appropriate U.S. Court of Appeals. The Charging Party, Electrical Workers IBEW Local 288, opposed the Settlement Stipulation because it fails to remedy each of the unfair labor practices alleged in the complaint and because it considers the Respondent a "repeat offender" likely to continue to violate the Act. [HTML] [PDF]

In deciding to accept the settlement agreement, the Board found (1) although the Charging Party opposed the settlement, the General Counsel agreed to it and recommended its approval by the Board; (2) the settlement remedies the unfair labor practices found by the administrative law judge and, in one respect, provides a more comprehensive remedy than that recommended by the judge; and (3) there is no evidence of fraud, coercion or duress. With respect to the second factor, the Board noted that by agreeing to the settlement, the Respondent has consented to the entry of both a Board Order and a court judgment enforcing it--a judgment that will in turn be enforceable through contempt proceedings. "It must be remembered, however, that there are risks and uncertainties inherent in any litigation, and this is particularly true here where the judge's findings adverse to the General Counsel and the Charging Party were based in part on credibility resolutions," the Board explained.

Laborers' Local 113 (Super Excavators, Inc.) (30-CD-158; 327 NLRB No. 31) Menomonee Falls, WI Oct. 30, 1998. In this Section 10(k) proceeding, it is alleged that Laborers' Local 113 violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the employer to reassign certain work from employees it represents, who were then performing the work, to employees represented by Operating Engineers IUOP Local 139. The majority of Members Liebman and Hurtgen rejected Local 139's argument that the notice of hearing should have been quashed, and determined that employees represented by Local 113 are entitled to perform the work in dispute. They reached this conclusion based on the factors of employer preference, assignment, and economy and efficiency of operations. [HTML] [PDF]

Concurring, Member Hurtgen, wrote separately to "express [his] misgivings" about Laborers (Capitol Drilling Supplies). Although he is inclined to agree with the dissent, he stated that in this instance there is reasonable cause to believe that there were competing claims for the work. Dissenting, Member Fox would apply Laborers (Capitol Drilling Supplies) and find that Local 139 did not make a competing claim for the work at issue when it filed a pay-in-lieu grievance. She would quash the notice of hearing.

Victoria Partners, a Partnership of Mirage Resorts, Inc. (28-CA-13975; 327 NLRB No. 19) Las Vegas, NV Oct. 30, 1998. The Board adopted the administrative law judge's findings that Leysen and Pangallo were not statutory supervisors under the Act; and that the Respondent violated Section 8(a)(1) and (3) by discharging them because of their protected concerted activities. The judge also found with Board approval that the Respondent violated Section 8(a)(1) by unlawfully interrogating employees about their union activities or those of other employees, and violated Section 8(a)(3) and (1) by issuing disciplinary notices to employees Council and Brickey. Regarding this last violation, the Board noted that the circumstances for issuing disciplinary notices to Council and Brickey for violation of Respondent's employee handbook rules were "baseless and clearly pretextual." [HTML] [PDF]

Charge filed by Operating Engineers IUOE Local 501; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Las Vegas, Nov. 10-12, 1997. Decision issued by Adm. Law Judge Michael D. Stevenson, Sept. 19, 1997.

Liberty Fabrics, Inc. (5-RD-1177; 327 NLRB No. 13) Gordonsville, VA Oct. 30, 1998. In this decertification case, the Board applied the principles of Douglas-Randall, 320 NLRB 431 (1995), to situations where the resolution of alleged unfair labor practices is through a private settlement agreement between the parties rather than through a Board settlement agreement approved by a Regional Director. A Board majority reversed the Regional Director's denial of the Union of Needle Trades, Industrial and Textile Employees' motion to dismiss unfair labor practice charges, and his Decision and Direction of Election. Noting that the only difference between the case here and Douglas-Randall is that the parties resolved their dispute by means of a non-Board settlement agreement rather than a Board settlement agreement, the majority stated: "It would be a disservice to [the Act's] purposes to affect a different result where the only difference is the parties' resolution of their dispute by means other than execution of a Board settlement agreement form." [HTML] [PDF]

Dissenting, Member Hurtgen would not process the decertification petition, noting that no unlawful conduct had been found and that, therefore, the majority's presumption that the decertification process was tainted by unfair labor practices was not supportable. He stated: ". . .[T]he issue is not whether the settlement agreement should be approved. The issue is whether the agreement should result in the dismissal of the antecedent decertification petition of the employees. That result is flatly inconsistent with the statutory policy of protecting the Section 7 rights of employees to refrain from union activity if they choose."

Custom Top Soil, Inc. (3-CA-20435; 327 NLRB No. 34) Cheektowaga and Buffalo, NY Nov. 16, 1998. The Board dismissed Section 8(a)(1) allegations and reversed the administrative law judge, finding that the Respondent's bookkeeper had neither actual nor apparent authority to speak on behalf of her Respondent concerning the possible impact of the applicants' union affiliation on their employment prospects. The Board stated that this reversal did not alter the judge's overall analysis of the 8(a)(3) issue, concluding that there exists substantial evidence that animus motivated the Respondent's discriminatory refusal to hire qualified union member applicants for available jobs. The judge's Order was modified to correct the calculation for the starting date for the backpay remedy. [HTML] [PDF]

Charge filed by Operating Engineers IUOE Local 17; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Buffalo, NY, Dec. 8-9, 1997. Decision issued by Adm. Law Judge Eleanor MacDonald, June 22, 1998.

Fieldcrest Cannon, Inc. (11-RC-5776; 327 NLRB No. 29) Rowan and Cabarrus Counties, N.C. Oct. 30, 1998. In this Supplemental Decision, the Board agreed with the hearing officer's recommendation and ordered that a third election be conducted after finding that the Employer engaged in a "pervasive and purposeful" surveillance campaign of employees' attendance at union meetings ordered by the NLRB and the Fourth Circuit. (The results of the second election show 2194 for and 2563 against the Petitioner, Union of Needletrades, Industrial and Textile Employees, with 316 challenged ballots.) In so doing, the Board agreed with the hearing officer that there is no merit in the Employer's contention that the conduct alleged in Objection 19 (surveilling, and creating the impression of surveillance, of employees entering and leaving the Union's speeches), can only be litigated in an unfair labor practice proceeding, not a representation proceeding. [HTML] [PDF]

Jaflo, Inc. (22-CA-21512; 327 NLRB No. 24) Orefield, PA Oct. 30, 1998. The administrative law judge found, with Board affirmance, that the Respondent violated Section 8(a)(1) and (5), and 8(d) of the Act by refusing to execute a collective-bargaining agreement that was mutually agreed to between IBEW Local 94 and the Line Clearance Contractors, a multiemployer association that bargains with the Union on behalf of its members. The Board also approved the judge's finding that the Respondent violated Section 8(a)(1) and (5) by failing to abide by the contract and by failing to make contributions to the contractually required health care fund. The Respondent denied that it ever delegated authority to bargain to an employer association and argued, alternatively, that even if it did, the Union consented to separate bargaining after negotiations commenced. [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 94; complaint alleged violations of Section 8(a)(1) and (5), and 8(d). Hearing at Newark, NJ, Sept. 24, 1997. Decision issued by Adm. Law Judge Raymond P. Green, Oct. 23, 1997.

Broadway, Inc. d/b/a K-Bar-B Youth Ranch (15-CA-14035(E); 327 NLRB No. 20) New Orleans, La. October 30, 1998. In a Supplemental Decision and Order, the Board adopted the recommended order of the administrative law judge denying an award of attorney's fees and expenses under the Equal Access to Justice Act. In the underlying case, the judge concluded the General Counsel failed to show that the employer had discharged three employees and suspended one employee because of a belief, albeit mistaken, that the alleged discriminatees were engaged in protected concerted activity. [HTML] [PDF]

On June 10, 1998, Adm. Law Judge William N. Cates issued his supplemental decision.

United Cerebral Palsy Assoc. (3-UD-184; 327 NLRB No. 14) Niagara Falls, N.Y. October 30, 1998. In a Decision and Direction of Election, the Board majority of Members Fox and Liebman adopted the Regional Director's findings that a new deauthorization election is required under the test in Kalin Construction Co., 321 NLRB 621 (1996), based on the employer changes to the "paycheck process" during the election. The employer's changes to the place, time, and distributors of paychecks of February 5, 1998, were significant, the majority said, because of their foreseeable effect of enhancing voter turnout. [HTML] [PDF]

In dissert, Member Hurtgen said he would not set aside the election based on the union's objection regarding the Kalin per se test if after tabulation of the challenged ballots a majority of unit employees have voted to deauthorize the union. In such an event, Member Hurtgen would overrule that objection and remand the case for a hearing on different union objection. "A cherished goal of industrial democracy, viz. maximum employee participation in the election, becomes a victim of the Kalin per se rule," he stated.

Lasalle Ambulance, Inc., d/b/a Rural/Metro Medical Services (3-CA-20837-3-CA-10568; 327 NLRB No. 18) Buffalo, N.Y. October 30, 1998. In a Decision, Order, and Direction of Election, the Board held that the Respondent's August 21, 1997 announcement -- the day before the election -- that if the union were voted in the Respondent could not change employee wages (including merit increases) unless and until there was a contract, violated the Act. The earlier election (Case 3-RC-10568), which the union lost (88 for, 140 against, 1 void ballot, 4 challenges), was set aside and this case is remanded to the Regional Director for the purpose of conducting a new election. [HTML] [PDF]

Charges filed by Teamsters (IBT) Local 375 alleging violation of Section 8(a)(1).

Macy's East (Theatrical Wardrobe, Union Local 764, I.A.T.S.E.) (29-RC-8936; 327 NLRB No. 22) New York, N.Y. October 30, 1998. Reversing the Regional Director, the Board held that the eight wardrobe personnel in the petitioned-for unit are temporary employees with a finite employment termination date and accordingly, are ineligible to vote. Dismissing the union's petition, the Board rejected the Regional Director's finding that the disputed employees were seasonal employees with a reasonable expectation of recall in 1998. [HTML] [PDF]

Darden Restaurants Inc., d/b/a the Olive Garden (27-CA-14737; 327 NLRB No. 5) Billings, Mont. October 30, 1998. The Board, affirming the administrative law judge, held the respondent violated the Act by declaring to employees its zero tolerance for union organizing as well as the consequence of closure of the restaurant if organizing occurred. However, the Board declined to accept the judge's recommended order directing the respondent to post copies of the notice at seven restaurants. Instead, it ordered that the notice be posted only at the respondent's restaurant in Billings, Montana. "We find that the General Counsel has not produced sufficient evidence to show that the unfair labor practices at the Billings facility were part of an established company policy or that employees at others of the respondent's facilities were likely to become aware of them. [HTML] [PDF]

Charge filed by Kelly Sondeno, an Individual that Darden Restaurants, Inc., d/b/a the Olive Garden violated Section 8(a)(1). On December 9, 1997 Adm. Law Judge Albert A. Metz issued his decision.

Ironworkers Local 843 International Association of Bridge, Structural & Ornamental Ironworkers (11-CB-2687; 327 NLRB No. 11) Greensboro, N.C. October 30, 1998. Affirming the administrative law judge, the Board found that the Respondent union violated the Act by failing to place the charging party's name on the hiring hall weekly referral list for the week of April 1, 1996. [HTML] [PDF]

Charge filed by Robert Harold Edge, an Individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Winston-Salem, N.C., March 12, 1998. Adm. Law Judge Lawrence W. Cullen issued his decision Aug. 5, 1998.

Transport Workers of America and its Local 525 (Johnson Controls World Services, Inc.) (12-CB-3801; 327 NLRB No. 9) Cocoa Beach, Fla. Oct. 30, 1998. The Board granted Charging Party Douglas Nelson's motion for reconsideration and modified its decision and order (326 NLRB No. 3) to require that the Respondents reimburse Nelson for payments he made after the Respondents unlawfully threatened him with discharge if he failed to remit dues and fees. The Board ordered the remedy in addition to its earlier cease-and-desist order, noting that Nelson made payments in light of the Respondents' threat. The Board did not order reimbursement for periods prior to the threat. And, as no violation was alleged or found based on the Respondents' failure to advise Nelson concerning his obligation to pay dues and fees, the Board found that no remedy was warranted in that respect. [HTML] [PDF]

Mojave Electric Cooperative, Inc. (28-CA-13749; 327 NLRB No. 7) Bullhead City, Ariz. Oct. 30, 1998. The Board, in affirming the administrative law judge's conclusion that the Respondent unlawfully discharged Richard Michaels, relied on findings that: (1) Michaels and fellow employee Stuart Douglas were engaged in actual protected concerted activity when, pursuant to a common concern for their workplace safety, they both petitioned for injunctive relief against harassment by two officials of the Respondent's subcontractor; (2) the Respondent undisputedly discharged Michaels because he filed for an injunction; and (3) Michaels' actions did not lose their protection under the Act because they constituted disloyalty within the meaning of NLRB v. Local 1239 (Jefferson Standard), 346 U.S. 464 (1953). [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 769; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Las Vegas, March 25-26, 1997. Adm. Law Judge Frederick C. Herzog issued his decision Sept. 26, 1997.

Roadway Express, Inc. (26-CA-18328; 327 NLRB No. 10) Memphis, Tenn. Oct. 30, 1998. The Board dismissed the complaint after finding, in agreement with the administrative law judge, that the General Counsel failed to establish that the Respondent's discharge of Darren King was inconsistent with its treatment of Wayne Parimore, a union steward who was not terminated although he was allegedly absent from work while on "habitually absent status." Accordingly, the Board found no merit to the General Counsel's contention that King was treated less favorably than Parimore. The Board agreed with the judge that, even if the General Counsel had established disparate treatment with respect to Parimore, it would have diminished weight as evidence that King was discharged for engaging in protected activities. No exceptions were filed to the judge's finding that the General Counsel established a prima facie case that the Respondent discharged King because of his union or protected activities. [HTML] [PDF]

Charge filed by Darren King, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Memphis on July 1, 1998. Adm. Law Judge William N. Cates issued his decision July 24, 1998.

Carpenters Local 210 Western Connecticut (Component Assemblies Systems, Inc.) (34-CD-54; 327 NLRB No. 4) Pelham, N.Y. Oct. 30, 1998. In this Section 10(k) proceeding, it is alleged that the Respondent, Carpenters Local 210 Western Connecticut, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing Component Assemblies Systems to assign certain work to employees it represents rather than to employees represented by Sheet Metal Workers Local 38. The majority, Members Liebman and Hurtgen, concluded that employees represented by Carpenters Local 210 are entitled to perform the work in dispute. They reached this conclusion based on employer preference and assignment, past practice, the collective-bargaining agreement, and economy and efficiency of operations. Dissenting, Member Fox would quash the notice of hearing as failing to set forth an element essential to a finding of a reasonable cause to believe that Section 8(b)(4)(D) has been violated, citing Laborers (Capitol Drilling), 318 NLRB 809 (1995). More specifically, she found that Sheet Metal Workers Local 38 was not making a "competing claim" for the work within the meaning of Section 8(b)(4)(D). [HTML] [PDF]

McDonnell Douglas Aerospace Services Company (32-CA-1631; 326 NLRB No. 151) Fallon, Nev. Sept. 30, 1998. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing unit employees' terms and conditions of employment by withholding scheduled benefits in April 1997 because the employees selected Electrical Workers IUE as their collective-bargaining representative. In Member Hurtgen's view, once the Respondent in December 1996, unconditionally promised to provide employees with specific benefits (regardless of whether they selected union representation), the benefits became a term and condition of employment and part of the status quo ante. Member Hurtgen found that the Respondent's March 23, 1997 announcement that "these benefits will not be unilaterally provided to IUE represented employees . . . on April 1" did not satisfy its bargaining obligation. Rather, he found that the Respondent unlawfully presented the Union with a fait accompli. [HTML] [PDF]

Charge filed by Electrical Workers IUE; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oakland on April 13, 1998. Adm. Law Judge Joan Wieder issued her decision June 2, 1998.

New Orleans Cold Storage (15-CA-12931; 326 NLRB No. 161) New Orleans, La. Sept. 30, 1998. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) of the Act by threatening retaliation against employees who exercise their Section 7 rights, in this instance, filing a grievance against the Employer; and violated Section 8(a)(1) and (3) by assigning employee Nelson Pierre to a more onerous position, by issuing warnings to him, and by discharging him in retaliation for filing a grievance with Teamsters Local 270. [HTML] [PDF]

Charge filed by Nelson Pierre, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New Orleans, June 4-5, 1997. Decision issued by Adm. Law Judge George Carlson II, Oct. 14, 1997.

Reading Anthracite Co. (4-CA-23722, 4-CB-7377; 326 NLRB No. 143) Yatesville, Pa. Sept. 30, 1998. The administrative law judge found that the Respondents, Mineworkers International, Mineworkers Local 807 and Mineworkers District 2, violated Section 8(b)(1)(A) and (2) of the Act by adopting and conveying to the Employer (under contract in a collective-bargaining agreement) a decision to give Local 807 all the jurisdiction held by Mineworkers Local 7226, and by assigning seniority dates to former Local 7226 members based on the date that they received their transfer cards into Local 807. The Board agreed, stating that such conduct discriminatorily encourages membership in one local over another. In contrast to the judge's reasoning, the Board found that this finding of discrimination is an appropriate basis for finding that the Respondents also breached their duty of fair representation in violation of Section 8(b)(1)(A) by using a discriminatory basis for determining seniority. The Board rejected the judge's recommended Order requiring the parties to establish a new seniority list by dovetailing members of Local 7226 with those of Local 807. Instead, the Board modified the Order and required only that employees' positions on the new seniority list be based on nondiscriminatory considerations, stating that "[w]e cannot conclude that dovetailing the seniority lists is the only lawful method of resolving the conflicting legitimate interests of the employees involved." [HTML] [PDF]

In agreement with the judge, the Board found that the International is liable for the acts of its subordinates, but rejected as an additional basis for finding liability, the judge's reasoning that the participation of the International might be necessary to fashion an effective remedy. Contrary to the judge, the Board found that the Employer violated Section 8(a)(3) because it acquiesced to the discriminatory seniority system. And, the Board found merit to the General Counsel's and the Unions' exceptions to the judge's recommended Order that the International disband Local 7226. The Board said that "[s]uch an Order would infringe on the right of unions to regulate their internal affairs" and with the right of employees to be represented by the union of their choice, noting that disbandment is not necessary to remedy the violation.

Charge filed by Paul Houser, an Individual; complaint alleged violations of Section 8(a)(3), (1)(b), (A)(2), and (b)(1)(A). Hearing at Philadelphia, April 8-9. 1996. Decision issued by Adm. Law Judge Richard H. Beddow Jr., June 26, 1996.

Communications Workers Local 13000 (4-CA-25264; 326 NLRB No. 158) Philadelphia, Pa. Sept. 30, 1998. The Board found, as did the administrative law judge, that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending Bernadette Moyer's sick pay and discharging her because of her activity on behalf of Office and Professional Employees Local 14-32. In adopting the judge's finding of antiunion animus on the part of the Respondent, the Board relied solely on the statement by the Respondent's president to his fellow executives that no one was going to "embarrass" the Respondent by joining a union and his identifying Moyer as the "driving force" behind efforts to unionize the Respondent's employees. [HTML] [PDF]

Charge filed by Bernadette Moyer, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, May 14-15, 1997. Adm. Law Judge Nancy M. Sherman issued her decision Nov. 25, 1997.

Acme Bus Corp., Brookset Bus Corp., Baumann & Sons Buses, Inc., Alert Coach Lines, Inc., a Single Employer (29-CA-17613, et al.; 326 NLRB No. 157) Ronkonkoma, N.Y. Sept. 30, 1998. Affirming the administrative law judge's supplemental decision, Members Fox and Liebman ordered the Respondent to pay Joseph Anderson the sum of $36,171.47 and Tommy Edmond the sum of $21,664.00 to remedy its backpay obligation as ordered by the Board at 320 NLRB 458 (1995). Member Hurtgen, dissenting in part, found that Anderson did not make a reasonable effort to mitigate his losses arising from his discharge. Contrary their dissenting colleague, Members Fox and Liebman found that the judge correctly determined that Anderson's interim employment record was reasonable and sufficient to mitigate his loss of pay and fully warranted the award of backpay. [HTML] [PDF]

Suburban Trails (22-CA-20553; 326 NLRB No. 123) Heightstown, N.J. Sept. 30, 1998. The Board approved the administrative law judge's dismissal of a complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Joseph Covino because of his activity for Transportation Local 1589 and violated Section 8(a)(1) through statements made by General Manager Thomas Rossiter to Covino. [HTML] [PDF]

Charge filed by Joseph Covino, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Newark, Dec. 16 and 17, 1996 and Sept.16 and 17, 1997.

United Health Care Services, Inc. (13-RD-2174; 326 NLRB No. 144) Chicago, Ill. Sept. 30, 1998. The Board affirmed the Regional Director's decision and order dismissing the decertification petition because there was no majority to grant review as the Board Members were equally divided. See Durant v. Essex, 7 Wall. 107, 19 L. Ed. 154 (1869). The Regional Director found that there was a contract bar to the petition because a collective-bargaining agreement was in effect between the Employer and Professional, Technical and Clerical Employees Local 707. The parties disagreed over whether ratification by Union members was required to validate the agreement signed on November 4, 1996, one day before the decertification petition was filed. The Regional Director found that, according to internal Union protocol, ratification was achieved by the National president's approval of the agreement on November 4, despite the lack of notice to the Employer. [HTML] [PDF]

Members Fox and Liebman would deny review, noting that in contract bar cases, for ratification to be a condition precedent to the validity of the contract, the entire ratification provision must be stated by an express contractual provision. Members Fox and Liebman further noted: "The request for review only highlights the patent ambiguity here by its assertion at different points that ratification was required by 'employees,' 'members,' and the 'membership.'" Members Hurtgen and Brame would grant review after finding that "a reasonable reading of the relevant language is that ratification by the Union's membership was a condition precedent to a contract. Since that ratification did not occur, there is no contract bar. Where, as here, contractual language is ambiguous, the Board will engage in contract interpretation to determine the effect of ratification language in a contract."

STB Investors, Ltd. d/b/a Troy Hills Nursing Home (22-CA-22631; 326 NLRB No. 159) Parsippany, N.J. Sept. 30, 1998. Members Fox and Liebman found that the Respondent failed to raise any representation issue that is properly litigable in this unfair labor practice proceeding, granted the General Counsel's motion for summary judgment, and held that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with certified representative Service Employees Local 1115-New Jersey-North, and to furnish the Union requested information. The majority ordered the Respondent to bargain and to furnish the requested information, with the exception of the Medicare and Medicaid cost and reimbursement information requested in paragraph 10. The Union did not specify in its request why it wanted the Medicare and Medicaid cost and reimbursement information, and neither the complaint nor the motion for summary judgment explained why the Respondent had an obligation to provide it. [HTML] [PDF]

Dissenting Member Brame noted that he also dissented from the denial of the Employer's request for review of the Regional Director's decision and direction of election in the underlying representation proceeding. He wrote: "Review of the record was initially denied and here, effectively, review continues to be denied. In light of the close scrutiny of the Board's decisions in this area by the courts, I believe it both appropriate and essential that where, as here, significant issues have been raised, the Board give each record a full and careful review."

Charge filed by Service Employees Local 1115-New Jersey-North; complaint alleged violation of Section 8(a)(1) and (5). Acting General Counsel filed motion for summary judgment July 10, 1998.

Tower Automotive, Inc. (7-CA-40071; 326 NLRB No. 141) Plymouth, Mich. Sept. 30, 1998. Members Fox and Liebman reversed the administrative law judge and found that the Respondent's violation--issuing a written verbal warning to William Haddley for engaging in protected union activity in violation of Section 8(a)(1) and (3) of the Act--warranted the issuance of the Board's usual remedial order. Member Hurtgen, dissenting, agreed with the judge that the Respondent's unlawful conduct was de minimis, and thus, he would adopt the judge's dismissal of the complaint. [HTML] [PDF]

Charge filed by the Auto Workers International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit on April 20, 1998. Adm. Law Judge Karl H. Buschmann issued his decision May 28, 1998.

American Crane Corp. (11-CA-16292, et al.; 326 NLRB No. 153) Wilmington, N.C. Sept. 30, 1998. The Board agreed with the administrative law judge that the Respondent unlawfully discharged Johnny Thompson and unlawfully took certain adverse personnel actions against Cleatus Brown. The Board did not pass on whether Thompson violated company policy on "early-outs" on July 14, 1995. "Because Thompson's supervisor remained silent when Thompson informed him that he was taking the remainder of July 14 as a personal or vacation day, we find that the supervisor impliedly gave Thompson permission to leave," the Board stated. It also did not agree with the judge that the comment Brown made to Supervisor Inez Crisp after Brown had clocked out on September 23, 1996, was "appropriate." Even so, the Board found that Brown's comment did not justify the discipline imposed. The Board deleted all reference to 8(a)(5) violations from the Order and Notice to Employees because it had previously granted a joint motion from the Respondent and the Union to withdraw the allegations of 8(a)(5) violations. [HTML] [PDF]

Contrary to the judge and his colleagues, Member Hurtgen does not find that Supervisor Crisp's July 1996 statement to Brown regarding a subpoena is sufficient to establish that discipline later imposed on Brown violated Section 8(a)(4). Member Hurtgen also does not agree that Supervisor Moelter unlawfully interrogated employee Clemmons.

Charge filed by the Boilermakers and Cleatus L. Brown, an individual; complaint alleged violation of Section 8(a)(1), (3), (4) and (5). Hearing at Wilmington, July 16-18, Sept. 17-20, and Dec. 16 and 17, 1996. Adm. Law Judge Howard I. Grossman issued his decision June 24, 1997.

Leisure Centers, Inc. d/b/a Grand River Village (7-CA-38229, 7-RC-20797; 326 NLRB No. 117) Farmington Hills, Mich. Sept. 30, 1998. The Board affirmed the administrative law judge's conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Todd Bruchnak within days of his having spearheaded a union organizing drive. The judge dismissed the 8(a)(1) allegation that the Respondent unlawfully interrogated employees. With regard to the Employer's objections filed to the election, the judge found - and the Board agreed - that Bruchnak was eligible to vote, and that Justin West was an employee as of the date of the election and was not a statutory security guard. The Board directed that Bruchnak's and West's ballots be opened and counted. [HTML] [PDF]

Charge filed by Teamsters Local 243; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Detroit, Nov. 19-20, 1996. Decision issued by Adm. Law Judge Robert T. Wallace, Oct. 24, 1997.

L & B Construction Co., Inc. (25-CA-24253; 326 NLRB No. 132) Indianapolis, Ind. Sept. 30, 1998. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating an employee concerning his union activity and giving the impression of surveilling employees' union activity. Member Hurtgen did not find that the Respondent violated 8(a)(1) by creating the impression that it was surveilling the union activities of employee Gabriel Brooking or its other employees. The Board agreed with the judge that the General Counsel failed to meet its Wright Line burden and found that the Respondent established that it would not have hired four applicants who were admitted union "salts" even absent their union support. The Board affirmed the judge's conclusion that the Respondent violated Section 8(a)(1) and (3) by discharging Brooking for his union support. [HTML] [PDF]

Charge filed by Sheet Metal Workers Local 20; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Indianapolis, Jan. 8, 1998. Decision issued by Adm. Law Judge William G. Kocol, Feb. 19, 1998.

Alltel Kentucky, Inc. (9-CA-34577, 34617; 326 NLRB No. 140) Shepherdsville, Ky. Sept. 30, 1998. The Board upheld the administrative law judge's conclusion that the Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning their union sentiments and informing employees that they did not receive their annual January 1997 cost-of-living wage increase because they selected the Union to be their collective-bargaining representative. The majority of Members Hurtgen and Brame agreed with the judge that the Respondent did not violate Section 8(a)(5) and (1) when it withheld the wage increase because the Respondent's proposal concerning wages, submitted during bargaining over the initial contract, put the Union on notice that the Respondent did not intend to increase wages in January 1997 as it had done annually. They found that the Union's failure to request bargaining in the face of such notice defeated any claim that the Respondent unlawfully discontinued the January increase. [HTML] [PDF]

Dissenting, in part, Member Fox would find that the Union lacked sufficient notice that the Respondent's wage proposal, presented during November 1996 contract negotiations, that there would be no increase in current wage levels signified that the Respondent would be cancelling its routine cost-of-living increase.

Charge filed by Communications Workers Local 3310; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Louisville, Ky., June 4, 1997. Decision issued by Adm. Law Judge Bruce D. Rosenstein, July 31, 1997.

Electrical Workers IBEW Local 363 (U.S. Information Systems) (34-CD-57; 326 NLRB No. 145) West Nyack, N.Y. Sept. 30, 1998. In this Section 10(k) proceeding, the Employer, USIS, alleged that the Respondent, Electrical Workers IBEW Local 363, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing USIS to assign certain work to employees it represents rather than employees represented by Communications Workers Local 1106. After considering all relevant factors, the Board concluded that employees represented by Local 1106 are entitled to perform the work in dispute. This conclusion was reached by relying on the factors of collective-bargaining agreements, employer preference and past practice, and economy and efficiency. [HTML] [PDF]

Waste Management of Northwest Louisiana, Inc. (15-RC-8099; 326 NLRB No. 150) Shreveport, La. Sept. 30, 1998. The Board considered objections to an election where the tally of ballots shows 18 for and 17 against the Petitioner, Auto Workers International, with no challenged ballots. In agreement with the hearing officer, the Board found that the Employer failed to meet its burden of showing that employee Lenard's failure to vote was due to conduct of any party to the election, and overruled the objections and ordered a certification of representation to issue. [HTML] [PDF]

Millard Refrigerated Services, Inc. (10-RC-14820; 326 NLRB No. 156) Attalla, Ala. Sept. 30, 1998. Overruling the hearing officer, the majority of Members Fox and Liebman concluded that leadmen McCoy and Smith are not supervisors and accordingly directed the Regional Director to open and count their ballots. In dissent, Member Hurtgen would agree with the hearing officer that McCoy and Smith are statutory supervisors and would sustain the challenge to their ballots and certify the union. [HTML] [PDF]

The work assigned by McCoy and Smith to service employees was repetitive and required little supervision, the majority pointed out. The record did not support the hearing officer's finding that the leadmen have the authority to effectively recommend discipline requiring the use of independent judgment, it held.

The election results were 18-14 in favor of the Union. There were five challenges. One was withdrawn and two were overruled by the hearing officer.

Reno Hilton Resorts d/b/a Reno Hilton (32-CA-15856; 326 NLRB No. 154) Reno, Nev. Sept. 30, 1998. Upholding the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act, the Board modified the judge's remedy and imposed a broad cease-and-desist order requiring, inter alia, Hilton to rescind its subcontract for security officers. The Board stated that a broad order is fully warranted because Hilton's unlawful discharge of its entire security guard force of some 64 employees "is not only an egregious violation of the Act, but also demonstrates, as explained by the judge, 'Hilton's proclivity to violate the Act and its animus toward unionization in general.'" The Board also observed that a broad order was imposed in an earlier decision, Reno Hilton, 319 NLRB 1154 (1995), and that Hilton's actions in the present case a little more than a year after the Board issued the 1995 decision further demonstrates Respondent's "proclivity to violate the Act." [HTML] [PDF]

Charge filed by United Plant Guard Workers of America; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Reno, March 10-12, 1998. Decision issued by Adm. Law Judge Gerald A. Wacknov, June 19, 1998.

Reno Sparks Citilift (32-CA-15922, 16082; 326 NLRB No. 155) Reno, Nev. Sept. 30, 1998. The administrative law judge concluded - and the Board approved - that the Respondent violated Section 8(a)(1) and (5) of the Act by failing without any meritorious defense, to furnish to the Union on a timely basis certain information that is relevant and necessary to the Union's role as the exclusive bargaining representative of unit employees. [HTML] [PDF]

Charges filed by Teamsters Local 533; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Reno, Aug. 26, 1997. Decision issued by Adm. Law Judge Michael D. Stevenson, Feb. 27, 1998.

TEG/LVI Environmental Services, Inc. (21-RC-19889; 326 NLRB No. 160) Los Angeles County, et al., Calif. Sept. 30, 1998. A Board majority of Members Fox and Liebman adopted the hearing officer's finding that the Union (Laborers Local 882, Laborers International, and Heat & Frost Insulators & Asbestos Workers Local 5) did not engage in objectionable conduct by mailing to employees a flyer containing the following statement: [HTML] [PDF]

"The National Labor Relations Board of the United States of America wants the workers of TEG/LVI environmental services to have a union." The majority cited Board case law for the rule that the Board will not set aside an election based on misrepresentation contained in campaign propaganda, and likened the case here to that in Riveredge Hospital, 264 NLRB 1094 (1982). The tally of ballots shows 97 for and 87 against the Petitioner, with 7 challenged ballots, an insufficient number to affect the results.

Dissenting, Member Hurtgen would set aside the election noting that most of the employees who received the flyer, which was in Spanish, are immigrants from Latin America. "I think it is highly inappropriate for a party to an election to falsely represent to employees that the NLRB favors one side or the other, particularly where, as here, "the misrepresentation was made to a group vulnerable to misrepresentations about our Nation's law," Members Hurtgen said.

Huckleberry Youth Programs (20-RC-17345; 326 NLRB No. 127) San Francisco, Calif. Sept. 30, 1998. A Board majority determined, contrary to the Regional Director, that the Peer Health Educators (PHEs) are employees within the meaning of Section 2(3) of the Act and share a sufficient community of interest with the program employees to be included in the unit seeking to be represented by the Petitioner, Service Employees Local 790. In so finding, the majority stated that the exclusion of the PHEs would create a residual unit, which the Board seeks to avoid, and that the Petitioner is requesting this presumptively appropriate unit. Dissenting, Member Brame stated that the key indicia favor a finding that the PHEs are not statutory employees and noted that the Board, like the courts, often misapplies the test established in Goodwill Industries of Denver, 304 NLRB 763, 765 (1991). [HTML] [PDF]

Ryder Truck Rental, Inc. (3-RC-10665; 326 NLRB No. 149) Rochester, N.Y. Sept. 30, 1998. The majority found merit in the Employer's exceptions to the hearing officer's finding that Jay Preston is a statutory supervisor and recommendation that the challenge to Preston's ballot be sustained. The tally of ballots shows 11 for and 9 against the Petitioner, Teamsters Local 118, with 2 challenged ballots. The Employer argued that Preston's involvement in discipline is limited and that, in assigning work or overtime, Preston is merely a conduit for management and does not exercise independent judgment. The majority directed the Regional Director to open and count Preston's and another employee's ballots since these ballots are sufficient in number to affect the results. Dissenting, Member Hurtgen noted, among other things, that the hearing officer discredited Preston's testimony that a supervisor directed him to issue a written warning to an employee, and that Preston is the highest-ranking person in the facility each night. [HTML] [PDF]

Sawyer Lumber Co., L.L.C. (30-RC-5981; 326 NLRB No. 137) Gwinn, Mich. Sept. 30, 1998. The Board adopted the hearing officer's recommendations to overrule the Employer's Objections 1-7 to an election, the final tally of which shows 37 votes for and 36 against the Petitioner, Paperworkers International. The Employer alleged that conduct by the Board agent in charge of the election compromised the integrity of the election and that the election should be set aside and a new election ordered. [HTML] [PDF]

California Nurses Assn. (32-CB-4545; 326 NLRB No. 142) Oakland, Calif. Sept. 30, 1998. Upholding the administrative law judge's conclusions, the Board held that the Respondent violated Section 8(b)(3) of the Act by refusing to provide the Employer, Alta Bates Medical Center, with the facts and documents relevant to each incident on which the Respondent is relying to support its grievance and the names of persons involved in each incident. The Board further agreed with the judge that as to those documents that the Employer already possesses, the Respondent need only identify them to the Employer, without physically providing them or disclosing the specific facts in them on which it relies or those theories it will pursue at arbitration. Contrary to the judge, however, the Board found no 8(b)(3) violation with respect to the Respondent's refusal to provide the Employer with the names of witnesses it intends to call and the evidence on which it intends to rely at the arbitration hearing. [HTML] [PDF]

Charge filed by Alta Bates Medical Center, complaint alleged violations of Section 8(b)(3). Hearing at Oakland, May 28, 1996. Decision issued by Adm. Law Judge Burton Litvack, Dec. 31, 1996.

Indiana Hospital, Inc. (6-RC-11488; 326 NLRB No. 152) Indiana, Pa. Sept. 30, 1998. The Board did not adopt the hearing officer's recommendation that an election be set aside. The tally shows 101 for and 102 against Indiana Hospital Professional Employees Assn./PSEA Health Care. Contrary to the hearing officer, the Board concluded that the evidence fails to show that the Employer engaged in objectionable conduct before the election by offering payment to, and paying, off-duty employees as a reward for coming to a Board election. [HTML] [PDF]

Endicott Forging & Manufacturing, Inc. (3-CA-21062; 326 NLRB No. 122) Endicott, N.Y. Sept. 30, 1998. The Board concluded that the Respondent's answer to the complaint, admitting all the material facts and claiming an inability to pay contractually required benefits, raised no issues warranting a hearing. 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 abide by Section 24 (Union Pension Fund) of its 1997-1998 collective-bargaining agreement with Boilermakers Local 1101 and failing to make contractually required contributions. [HTML] [PDF]

Charge filed by Boilermakers Local 1101; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment August 31, 1998.

Hartley Oil Co. (9-CA-33372-4; 326 NLRB No. 97) Ravenswood, W. Va. Sept. 25, 1998. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(3) of the Act by discriminatorily transferring Lee Simms from the warehouse to the rail building after he wore a union button, reducing his work hours and shortly thereafter laying him off. The judge also found with Board approval that the Respondent violated Section 8(a)(1) by maintaining an unlawfully broad no-solicitation policy during a union organizing drive. [HTML] [PDF]

Charge filed by Oil, Chemical and Atomic Workers; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Ripley, W. Va., Feb. 13, 1997. Decision issued by Adm. Law Judge Marion C. Ladwig, June 3, 1998.

Darphin Beute France d/b/a Darphin USA, Inc. (2-CA-30117; 326 NLRB No. 104) Rye, N.Y. Sept. 29, 1998. The administrative law judge found that the Respondent violated Section 8(a)(1) of the Act by discharging employees Diane Stevens and Laura Kagel because of their protected concerted activity, i.e. trying to get the Respondent to pay them overdue back wages. The judge noted that Kagel's case presented "an unusual situation" in that Kagel called her manager, Indorf, to tell her she was resigning and Indorf replied, "you can't quit, you're fired." On this point, the judge said, "I think the Company, having earlier made its decision to discharge Kagel, and having communicated that decision to her, [] cannot rely on her resignation announcement as a defense to the 8(a)(1) allegation." The Board majority of Members Hurtgen and Brame agreed with the judge that the Respondent violated the Act by discharging Stevens and Kagel, and with the judge's conclusion that Kagel resigned almost simultaneously with her termination. However, they disagreed with Member Fox, who dissented in part and who would find that Kagel did not resign, but rather expressed an intention to withhold her services, i.e. strike, over the Respondent's failure to pay her for past services. Members Hurtgen and Brame found that nothing Kagel said or did is "inconsistent with the judge's finding that Kagel intended resignation," nor was there anything to indicate that Kagel was striking. [HTML] [PDF]

Charge filed by Diane Stevens, an individual; complaint alleged violations of Section 8(a)(1). Hearing at New York, N.Y., Nov. 17-18, 1997 and Jan. 8, 1998. Decision issued by Adm. Law Judge Raymond P. Green, March 13, 1998.

Tocco, Inc. (10-CA-30754, et al.; 326 NLRB No. 128) Boaz, Ala. Sept. 30, 1998. Affirming the administrative law judge's bench decision, the Board found the Respondent had engaged in numerous violations of the Act, including unlawfully withdrawing recognition from the Union, making unilateral changes, and refusing to furnish information to the Union. The Board ordered the Employer to rescind its withdrawal of recognition and unilateral changes; to recognize and bargain with the Union; and restore to the status quo. [HTML] [PDF]

Charge filed by United Auto Workers; complaint alleged violations of Section 8(a)(1), (3), (4), (5). Hearing at Birmingham, June 1-2, 1998. Adm. Law Judge Lawrence W. Cullen issued a bench decision on July 1, 1998.

Gary's Electrical Service Co. (7-CA-39300; 326 NLRB No. 98) Waterford, Mich. Sept. 29, 1997. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to furnish the Union with relevant information. The judge found, and the Board agreed, that the Respondent's execution of a letter of assent created a 8(f) bargaining relationship between the Union and the National Electrical Contractor's Association, and that the Respondent became bound by a series of collective-bargaining agreements. Thus, the Union was entitled to information relevant to the enforcement and possible breach of a bargaining agreement that was the source of its Section 8(f) bargaining authority. Although the complaint alleged the existence of a 9(a) relationship, the General Counsel relied principally on the letter of assent and did not except to the judge's finding that it had not asserted the existence of a 9(a) relationship and that the relationship did not advance beyond the 8(f) stage. In the circumstances of this case, the Board found that the judge properly found that the bargaining obligation arose and continued under Section 8(f). [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 58; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit, Nov. 17, 1997. Decision issued by Adm. Law Judge Robert M. Schwarzbart, March 27, 1998.

Electrical Workers IBEW Local 125 (Loy Clark Pipeline) 36-CD-210, 211; 326 NLRB No. 111) Beverton, Ore. Sept. 29, 1998. In this Decision and Determination of Dispute, the Board found reasonable cause to believe that violations of Section 8(b)(4)(D) of the Act have occurred and that there exists no agreed-on method for the voluntary adjustment of this dispute within the meaning of Section 10(k). Accordingly, the Board denied the IBEW Local 125's Motion to Quash. The Employer filed a charge alleging that IBEW Local 125 and, in a separate charge, that Laborers Local 320 each violated Section 8(b)(4)(D) by engaging in proscribed activities with an object of forcing the Employer to assign certain work to employees represented by its union rather that other labor organizations. On the merits of the dispute, the Board concluded that the employer's employees who are represented by Laborers Local 320 are entitled to perform the disputed work. This decision was based on the employer's assignment, preference, and past practice, the collective-bargaining agreement, and economy and efficiency of operations. [HTML] [PDF]

Save Mart Supermarkets (31-CA-21899; 31-RC-7356; 326 No. 103) Tehachapi, Calif. Sept. 29, 1998. The administrative law judge found, with Board concurrence, that the Respondent violated Section 8(a)(1) of the Act by soliciting grievances from employees and implying that they would be granted, and by actually remedying a grievance, in order to induce employees to not support the Union. Other alleged violations of the Act were not found by the judge. The Board ordered that a second election be conducted based on the judge's finding that objectionable conduct by the Respondent affected the outcome of a representation election lost by the Union. [HTML] [PDF]

Charge filed by United Food & Commercial Workers Local 1036; complaint alleged violation of Section 8(a)(1), (2), and (5). Hearing at Bakersfield, Calif., July 29-21, 1996. Decision issued by Adm. Law Judge Frederick C. Herzog, Sept. 30, 1997.

Aelco Corp. (31-CA-21181, 21301; 326 NLRB No. 125) Van Nuys, Calif. Sept. 30, 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 reinstate eight strikers in the absence of legitimate and substantial business reasons; and violated Section 8(a)(1) by threatening employees with reprisals or loss of jobs for engaging in a lawful strike or other protected activities, promising better benefits to induce employees not to strike or engage in other union activities, and unlawfully soliciting employees to withdraw or resign from the Union. The Respondent was ordered to reinstate strikers and make them whole. [HTML] [PDF]

Charge filed by United Auto Workers Local 509; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Los Angeles, Calif., Feb. 12, 1998. Decision issued by Adm. Law Judge Jay R. Pollack, Sept. 30, 1998.

Beta Steel Corp. (25-CA-25139; 326 NLRB No. 126) Portage, Ind. Sept. 30, 1998. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Dennis Holland for engaging in union activity in attempting to enforce the safety and health provisions of the collective-bargaining agreement that Longshoremen's Local 2038 had with the Respondent. The Board denied the Respondent's exception to the judge's findings on the ground that it was prevented from presenting evidence at the hearing because it was denied prehearing discovery. As a result, counsel for the Respondent did not appear at the hearing. In so doing, the Board noted that the Board's Rules and Regulations do not provide for prehearing discovery and that the judge so informed counsel for the Respondent in two prehearing conference calls and warned counsel of the consequences of failing to produce subpoenaed witnesses. "The Respondent's subsequent failure to even appear at the hearing forecloses its opportunity to now present the evidence it had every opportunity to present before the judge," the Board stated. [HTML] [PDF]

Charge filed by Dennis Holland, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Valparaiso, Ind., Oct. 27-28, 1997. Decision issued by Adm. Law Judge Arthur J. Amchan, Dec. 11, 1997.

Dravo Lime Company, Maysville Division (9-CA-33609; 326 NLRB No. 118) Maysville, Ky. Sept. 30, 1998. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employee Jack Gilbert because of his union or other protected activities. Although the judge did not specifically find anti-union animus, the Board concluded that the record amply demonstrates such animus. In finding antiunion animus, Member Brame does not rely on the Respondent's statements of opposition to the Union's organizing, finding these statements protected by Section 8(c). Member Hurtgen emphasizes that his decision is "limited to the particular and peculiar facts of this case" given the "blatantly pretextual reasons for Gilbert's discharge." [HTML] [PDF]

Charge filed by United Mine Workers District 17; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cincinnati, Ohio, March 12 and May 12-14, 1997. Decision issued by Adm. Law Judge Richard H. Beddow Jr., Sept. 24, 1997.

Atwood Mobile Products, Division of Atwood Industries Inc. (26-CA-18006-2; 326 NLRB No. 115) Greenbrier, Tenn. Sept. 30, 1998. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by maintaining and communicating to employees a policy requiring employees to keep disciplinary matters confidential; and violated Section 8(a)(1) and (3) by discharging employee Marcia Williams for activities on behalf of the Union. Member Hurtgen notes that the facts of this case do not present the issue of whether an employee's secretly taping a discussion with management concerning discipline constitutes protected activity and that the Respondent did not claim that its further discipline of Williams was motivated by any such taping. [HTML] [PDF]

Charge filed by United Auto Workers International; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Nashville, Dec. 8, 1997. Decision issued by Adm. Law Judge Nancy M. Sherman, June 24, 1998

Bonita Nurseries, Inc. and Hansen Brothers, Inc., Joint Employers (28-CA-13906; 326 NLRB No. 105) Tuscon, Ariz. Sept. 30, 1998. The Board agreed with the administrative law judge that the Respondents are not joint employers, and it therefore dismissed the complaint alleging that Bonita Nurseries, Inc. made offers of employment to six individuals and subsequently withdrew the offers because of their union or other protected concerted activities in violation of Section 8(a)(1) and (3) of the Act. The Board rejected the Acting General Counsel's contention, in which Plumbers Local 741 joined, that a violation has been established even if the Respondents are not found to be joint employers. That contention is contrary to the complaint allegations and to the position taken by the Acting General Counsel at the hearing, the Board noted. [HTML] [PDF]

Charge filed by Plumbers Local 741; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tucson, June 24-26, 1997. Adm. Law Judge Michael D. Stevenson issued his decision Feb. 19, 1998.

Dynatron/Bondo Corp. (10-CA-29735; 326 NLRB No. 107) Atlanta, Ga. Sept. 30, 1998. The Board found that the administrative law judge's bench decision lacked sufficient rationale and remanded the proceeding to him for a written analysis of the facts and legal precedent relevant to all the issues presented. The complaint alleges that the Respondent unilaterally implemented the wage and group health insurance proposals that had been contained in its final bargaining proposal to Union of Needletrades, Industrial and Textile Employees, at a time when prior unfair labor practices committed by the Respondent remained unremedied. The judge, finding that the Respondent has not yet complied with the Board's prior orders, concluded that there could be no lawful impasse in the presence of unremedied unfair labor practices, and therefore that the Respondent violated Section 8(a)(5) and (1) of the Act, as alleged. [HTML] [PDF]

The Board explained in remanding the proceeding that "for the judge to conclude that unremedied unfair labor practices prevented the parties from reaching lawful impasse, he must first find that there was a causal connection between the previous unfair labor practices and the failure to reach an agreement." The judge failed to discuss the evidence of the parties' extensive bargaining, the Board noted, and his brief discussion contains no explanation for why he believed the bargaining was adversely affected by the Respondent's prior unfair labor practices.

Charge filed by Union of Needletrades, Industrial and Textile Employees; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Atlanta, Jan. 20, 1998. Adm. Law Judge Keltner W. Locke issued his decision Feb. 25, 1998.

Birmingham Chrysler Plymouth Jeep Eagle, Inc. (7-CA-39582; 326 NLRB No. 109) Troy, Mich. Sept. 30, 1998. The Board dismissed complaint allegations that the Respondent discharged used car salesman Thomas William Oberly for engaging in protected concerted activity in violation of Section 8(a)(3) and (1) of the Act. [HTML] [PDF]

Charge filed by Thomas William Oberly; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, March 11-12, 1998. Adm. Law Judge Robert T. Wallace issued his decision May 19, 1998.

Bowne of San Francisco (20-CA-18335; 326 NLRB No. 112) San Francisco, Calif. Sept. 30, 1998. On recommendation of the administrative law judge, the Board dismissed the complaint because "[b]y any reasonable standard, the Charging Party's request for review, filed 6 years after receiving notice of the right to make such request, was not 'timely' within the meaning of the judge's original Order." On March 21, 1984, the judge granted the Respondent's motion to defer the case to the grievance-arbitration procedure of its collective-bargaining agreement with Graphic Arts Local 3-B. The judge retained jurisdiction for limited purposes including a timely motion to review whether the arbitration procedures were fair and regular or reached a result which is repugnant to the Act. [HTML] [PDF]

The arbitrator issued an award in October 1985, finding that the Respondent did not have just cause for discharging Carlton and ordering reinstatement and not backpay. In June 1986, Carlton requested that the Regional Director reopen the case on the ground that the arbitrator's award was repugnant to the Act. On November 25, 1991, the Regional Director issued a dismissal letter advising Carlton of her right to appeal the decision to the General Counsel. On January 13, 1992, the General Counsel's Office of Appeals advised Carlton that she could seek review of the arbitration award by submitting her objections directly to the judge. On January 23, 1992, the Regional Director rescinded his dismissal letter and notified Carlton that she could seek review of the arbitrator's decision directly to the judge. On April 6, 1998, Carlton filed the instant motion with the judge seeking to reopen the case based on the argument that the arbitrator's decision was repugnant to the Act.

Coyne International Enterprises Corp., d/b/a Coyne Textile Services (9-CA-33978; 326 NLRB No. 113) Huntington, W. Va. Sept. 30, 1998. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by threatening employees that it might close its Charleston, West Virginia terminal because of the union activities of union steward Joseph Page and by informing employees that Page's union activities had caused the closure of the terminal. In affirming the judge's conclusion that the Respondent's decision to close the Charleston facility did not violate Section 8(a)(3), the Board found that the Respondent's animus toward grievances filed by the Charleston terminal steward, coupled with unlawful statements linking the terminal closure to the steward, met the General Counsel's threshold burden. The Board further agreed with the judge's alternative finding that the Respondent showed that it would have closed the Charleston terminal, even in the absence of the steward's grievance activities, because of a continuing and worsening loss of sales volume there and the potential savings to be gained from the closing. [HTML] [PDF]

Charge filed by Teamsters Local 175; complaint alleged violation of Section 8(a)(1) and (3). Hearing at St. Albans, Dec. 18-19, 1996. Adm. Law Judge Lawrence W. Cullen issued his decision March 10, 1998.

Cargo Logistics (22-CA-21933; 326 NLRB No. 114) Newark, N.J. Sept. 28, 1998. The complaint charged the Respondent with violating Section 8(a)(1) of the Act by, inter alia, threatening employees with shutting down its business and terminating employees if the union is voted in, interrogating employees about their union activities and sympathies, and initiating a petition to solicit unit employees to repudiate the union; discriminatorily discharging William Thompson because of his union activities; and by this conduct making a fair election impossible. Subsequently, the parties entered into a stipulated agreement whereby the Respondent admitted to most charges and voluntarily agreed to recognize the Union. However, the parties could not resolve the matter regarding the discharge of Thompson. This issue was reserved for hearing before the judge, who found -- with Board affirmance -- that the Respondent violated Section 8(a)(1) and (3) when it discharged Thompson. [HTML] [PDF]

Charge filed by Teamsters Local 560; complaint alleged violations of Section 8(s)(1), (3), and (5). Hearing at Newark, June 3, 1998. Decision issued by Adm. Law Judge Raymond P. Green, July 14, 1998.

Hotel and Restaurant Employees Local 274 (CHC Hotel & Resorts Inc. d/b/a Sheraton University City Hotel) (4-CE-106; 326 NLRB No. 95) Philadelphia, Pa. Sept. 21, 1998. The Board affirmed the administrative law judge's decision that the Respondent violated Section 8(e) of the Act by entering into and maintaining those portions of article III of its collective-bargaining agreement with Sheraton University City Hotel which require a lessee or concessionaire of the Hotel to be bound by the terms of the agreement. In affirming the judge's finding of a violation, Member Hurtgen notes that the issue of whether the sale or transfer of a business constituted "doing business" within the meaning of Section 8(e) is not presented in this case. [HTML] [PDF]

Charge filed by CHC Hotel & Resorts, Inc. d/b/a Sheraton University City Hotel; complaint alleged violation of Section 8(e). Hearing at Philadelphia on July 23, 1996. Adm. Law Judge James R. Rose issued his decision Sept. 17, 1997.

Sassaquin Nursing & Rehabilitation Center, Inc. d/b/a Mariner Health Care Center (1-CA-35821; 326 NLRB No. 92) New Bedford, Mass. Sept. 21, 1998. The Board denied the Respondent's motion for reconsideration of a prior decision and order granting the General Counsel's unopposed motion for partial summary judgment (326 NLRB No. 2 (July 31, 1998)). [HTML] [PDF]

Chicago Tribune (13-RD-2225; 326 NLRB No. 94) Chicago, Ill. Sept. 21, 1998. The Board agreed with the hearing officer that an Employer-held brunch for bargaining unit employees (costing approximately $8000) 3 days before a decertification election, is a benefit which would reasonably tend to interfere with employee free choice, and that a new election must be held. Accordingly, the Board affirmed the hearing officer's recommendation to set aside the election held on December 17, 1997 based on this portion of the Union's Objection 1, and directed that a second election be conducted. Chicago Local 458-3M, Graphic Communications lost the election by a l8-15 vote. [HTML] [PDF]

Painters District Council No. 8 (32-CB-4848; 326 NLRB No. 9) Oakland, Calif. Sept. 24, 1998. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(b)(3) of the Act by refusing to bargain in good faith with the Northern California Drywall Contractors Association (Association) by withdrawing from multiemployer/multiunion bargaining, refusing to honor and abide by the 1997-2000 collective-bargaining agreement between the Association and Painters District Council Nos. 8 and 16, and by entering into separate collective-bargaining agreements with employer-members of the Association. The Board ordered the Respondent to rescind the individual collective-bargaining agreements (the "Interim Agreements") it entered into with individual employer-members of the Association. It did not affirm paragraph 2(b) of the judge's recommended Order, providing for a make-whole remedy for bargaining unit employees. [HTML] [PDF]

Charge filed by the Northern California Drywall Contractors Association; complaint alleged violation of Section 8(b)(3). Hearing at Oakland, Oct. 27-29 and 31, 1997. Adm. Law Judge Jay R. Pollack issued his decision Jan. 9, 1998.

Korns Bakery, Inc., et al. (29-CA-16976, et al.; 326 NLRB No. 82) Brooklyn, N.Y. Sept. 24, 1998. The Board affirmed the administrative law judge's recommended Order, the terms of which remedy 8(a)(5) violations to which no exceptions were filed. The Board declined to adopt the judge's finding that the Respondent failed to recognize and bargain in good faith with Bakery, Confectionery and Tobacco Workers Local 3 at a time when it was the collective-bargaining representative of the Respondent's bakery employees. This violation was neither alleged in the complaint nor sought by the General Counsel and was specifically disavowed by him. Exceptions were filed only to the judge's finding that Charging Party's Attorney Orfan requested wage-related information regarding the Respondent's unit employees during a meeting on February 26, 1997, and to that portion of the judge's decision captioned "The Meetings on November 27, 1996 and February 26, 1997." No exception was filed to the judge's dismissal, in that portion, of the complaint allegation that the Respondent bargained in bad faith by declaring that the parties had reached impasse when no impasse in negotiations had occurred. [HTML] [PDF]

Charges filed by Bakery, Confectionery and Tobacco Workers Local 3; complaint alleged violation of Section 8(a)(1), (2), (3) & 5. Hearing at Brooklyn, July 1-2 and Sept. 8-10, 1997. Adm. Law Judge Howard Edelman issued his decision April 2, 1998.

The Hertz Corp. (7-CA-37553(2); 326 NLRB No. 96) Romulus, Mich. Sept. 24, 1998. Affirming the administrative law judge's decision, the Board dismissed complaint allegations that the Respondent violated Section 8(a)(3) of the Act by suspending and then discharging Odell Johnson, an alternate union steward for Teamsters Local 299, because of his protected concerted activities and because of his union sympathies. [HTML] [PDF]

Charge filed by Odell Johnson, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, Aug. 26-27, 1997. Adm. Law Judge Thomas R. Wilks issued his decision Jan. 23, 1998.

Forrest City Machine Works, Inc. (26-CA-17735; 326 NLRB No. 88) Forrest City, Ark. Sept. 24, 1998. The Board considered exceptions to the administrative law judge's bench decision finding that the Respondent violated Section 8(a)(1) of the Act by discharging and/or refusing to rehire employees Aaron Williams and Robert Fields because of their protected concerted activity, together with two other employees, in collectively demanding a wage increase. The Board remanded the case to the judge to make explicit credibility resolutions and findings concerning certain testimony and to reopen the record for the purpose of accepting into evidence and considering Respondent's Exhibits 5, 6, and 7, which consist of documents filed with and actions taken by the Arkansas Employment Security Division and the Arkansas Board of Review concerning unemployment compensation claims made by Williams and Fields. Member Brame would also remand the issues of whether the employees' actions were concerted and were for the "mutual aid and protection" of employees. [HTML] [PDF]

Charge filed by Aaron Williams, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Memphis, May 19-20, 1997. Adm. Law Judge Robert C. Batson issued his decision June 30, 1997.

Supervalu, Inc.-Pittsburgh Division, d/b/a Uniontown County Market (6-CA-28632; 326 NLRB No. 93) Uniontown, Pa. Sept. 23, 1998. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) of the Act by refusing to furnish Food and Commercial Workers Local 23 with a copy of the sales agreement between the Respondent and a purchaser. The Board relied only on the judge's conclusion that it was necessary to assess the Respondent's liability under the Worker Adjustment and Retraining and Notification. (WARN) Act. The Board stated: "We find the comment from the Respondent's attorney to the Union that the Respondent's WARN obligation 'has passed to the buyer of the sale' implies that there was an agreement between the Respondent and the buyer which the Union could reasonably construe as contained in the sales agreement." Member Fox also relied on the judge's conclusions regarding the Respondent's obligation to provide the sales agreement so that the Union could learn whether the Respondent had met its contractual obligation under the contract's successorship clause. [HTML] [PDF]

Charge filed by Food and Commercial Workers Local 23; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Pittsburgh on May 13, 1997. Adm. Law Judge Irwin H. Socoloff issued his decision Feb. 17, 1998.

Hoffman Plastic Compounds, Inc. (21-CA-26630; 326 NLRB No. 86) Paramount, Calif. Sept. 23, 1998. Citing A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995), affd. 134 F.3d 50 (2d Cir. 1997), Members Fox and Liebman found that undocumented worker Jose Castro is entitled to limited backpay in the amount of $66,951. The Respondent argued that the Supreme Court's decision in Sure-Tan Inc. v. NLRB, 467 U.S. 883 (1984), and the later enactment of the Immigration Reform and Control Act of 1986 (IRCA) preclude reinstatement and backpay to Castro because he disclosed at the compliance proceeding that at no time has he been lawfully authorized to work in the United States. Members Fox and Liebman found that the Respondent's arguments are "virtually identical" to those that the Board rejected in A.P.R.A. Fuel, and they adhered to that precedent. Members Fox and Liebman found merit in the Respondent's defense based on the after-acquired knowledge rule referred to in A.P.R.A. Fuel and determined that Castro is not entitled to reinstatement and that his backpay should terminate on June 14, 1993, the date that the Respondent learned that Castro used fraudulent identification to gain employment. [HTML] [PDF]

Member Hurtgen , dissenting, would not award backpay to Castro for the reasons set forth in the dissent in A.P.R.A. Fuel and because Castro is not lawfully entitled to work in the U.S. and it would be unlawful for the Respondent to employ him.

Hearing at Los Angeles, March 4-5, 1993. Adm. Law Judge Jay R. Pollack issued his supplemental decision Nov. 12, 1993.

McCorvey Sheet Metal Works, Inc. (16-CA-18734; 326 NLRB No. 89) Houston, Texas Sept. 23, 1998. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) of the Act by threatening employees with discharge or other forms of reprisal because of their support for Sheet Metal Workers Local 54, and interrogating employees as to whether they had distributed union literature or were union members. [HTML] [PDF]

Charge filed by Sheet Metal Workers Local 54; complaint alleged violation of Section 8(a)(1). Hearing at Houston on Feb. 23, 1998. Adm. Law Judge Keltner W. Locke issued his decision April 17, 1998.

North American Plastics Corporation (13-RC-19824; 326 NLRB No. 70) Aurora, Ill. August 27, 1998. In an order denying review and appeal, the Board permitted the Regional Director to proceed with a mail ballot election. The majority of Members Fox and Liebman, with Chairman Gould concurring, disagreed with the contention by the Employer and dissenting Members Hurtgen and Brame that the Director abused her discretion by rejecting the Employer's proposed alternative of a mixed manual-mail ballot election. The dissent pointed out that the NLRB Manual expressly sanctions mixed elections. The majority, however, held: [HTML] [PDF]

"A mixed manual-mail election would result in additional complexity to the election process, and would require substantially more Board resources than either a manual election or a mail ballot election."

The Director initially had approved a stipulated agreement for a manual election. The Employer, however, subsequently laid off 40 unit employees, prompting the Union to file unfair labor practice charges and resulting in the Director withdrawing her approval of a manual election and instead directing a mail ballot election.

Alaska Pulp Corporation (19-CA-19242, et al.; 326 NLRB No. 59) Sitka, Alaska. August 27, 1998. In a supplemental decision and order, the Board rejected the Respondent's exception to the seniority-based method adopted the administrative law judge to reconstruct the order in which economic strikers would have been reinstated pursuant to a lawful reinstatement plan. The Respondent had contended that the judge's method is contrary to the Board's ruling in the underlying unfair labor practice proceedings that the Respondent's reinstatement of strikers in order of merit ranking was lawful. The majority stated: [HTML] [PDF]

"The Respondent's merit rankings were predicated on the assumption that strikers would be returning to entry level positions. Accordingly, the Respondent's merit rankings may not approximate those it would have developed if it were planning to reinstate strikers to their prestrike or substantially equivalent jobs according to merit. This uncertainty renders the use of the merit rankings unreliable. The Respondent having failed to resolve the uncertainty, we find that the General Counsel appropriately turned to departmental seniority to determine the order in which strikers would have been reinstated pursuant to a lawful plan."

While agreeing with the majority that the Respondent violated the Act by failing to reinstate strikers to available positions (i.e. by promoting other employees to those positions and then offering the strikers only the positions thereby vacated), Member Hurtgen said in a dissenting opinion that the Respondent had the right to choose its own lawful system--noting that both the seniority system and merit system were lawful. He also disagreed with the majority's adoption of the judge's blanket determination that strikers who resigned in order to obtain their pension funds did not effectively terminate their employment with the Respondent.

Hearing at Sitka, Alaska and Seattle, Washington, on 18 hearing days in 1993 and 1994. Administrative Law Judge James M. Kennedy his issued supplemental decision on September 27, 1995.

Cowboy Scaffolding, Inc. (17-CA-19433; 326 NLRB No. 87) Burleson, Texas September 18, 1998. Upholding the administrative law judge's bench decision, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by repudiating its 8(f) collective-bargaining agreement with the Union and by failing to make contractually required payments to pension and other employee benefit funds. In its exceptions, the Respondent admitted that it entered into a contract with the Union in January 1993, but contended that the contract was only for one job, a brief project at Lacygne, Kansas. The Board however, found no merit in that contention. [HTML] [PDF]

Charge filed by Carpenters District Council of Kansas City and Vicinity; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Overland Park, Kansas on March 20, 1998. Adminstrative Law Judge Steven M. Charno issued his bench decision on April 17, 1998.

The Bronx Health Plan (2-CA-26995; 326 NLRB No. 68) Bronx, N.Y. Aug. 27, 1998. Chairman Gould and Member Liebman held that the Respondent is a successor employer to Montefiore Hospital (Montefiore) and that it violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with 1199, National Health and Human Service Employees Union and by unilaterally setting different terms and conditions of employment for its employees. In so concluding, the majority wrote: "The facts herein show the Respondent, prior to July 1, 1993, operated as a health care services insurance plan. After July 1, 1993, the Respondent continued the same operations. The Respondent remained in the same location, using the same name and offering the same services, and hired the same employees and supervisors to perform the same duties, with no hiatus in its operations. When the Respondent began operations on July 1, 1993, the clerical employees it hired had all been bargaining unit employees at Montefiore." Member Hurtgen dissented. [HTML] [PDF]

The administrative law judge, relying on Nova Services Co., 213 NLRB 95 (1974) and Atlantic Technical Services Corp., 202 NLRB 169 (1973), found that the Respondent was not a successor because the group of union-represented employees hired by the Respondent is only a small fraction of all the bargaining unit employees covered by the collective-bargaining agreement between the Union and Montefiore. Citing Mondovi Foods Corp., 235 NLRB 1080, 1082 (1978), Chairman Gould and Member Liebman held that "there was nothing in the transitional changes that reasonably 'would undermine a finding that the employees' desires concerning union representation have remained unchanged.' Assuming the validity of the cases relied on by the administrative law judge and our dissenting colleague, they are distinguishable in any event." Chairman Gould and Member Liebman agreed with the judge that the Respondent and Montefiore are not joint employers of the unit employees for the reasons set forth in his decision.

Contrary to the majority, Member Hurtgen agreed with the judge that the Respondent is not a Burns successor to Montefiore and, thus, is not required to recognize and bargain with the Union. Because Member Hurtgen agrees that the Respondent also is not a joint employer with Montefiore and that the Respondent is not bound to the terms of the union contract covering the hospital, he would dismiss the complaint.

Charge filed by 1199, National Health and Human Service Employees Union; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, Oct. 31 and Nov. 1-2, 1994. Adm. Law Judge Raymond P. Green issued his decision March 2, 1995.

Laidlaw Medical Transportation, Inc. d/b/a Medtrans and/or American Medical Reserve/AMR (31-RC-7473; 326 NLRB No. 79) Torrance, Calif. Aug. 27, 1998. Chairman Gould and Member Fox sustained the Intervenor's Objection l finding that the Employer did not substantially comply with the Excelsior rule, set aside the election held July 28 and 29, 1997, and directed that a second election be conducted. Member Hurtgen dissented. [HTML] [PDF]

The tally of ballots shows 53 for the Petitioner (Professional EMTs and Paramedics, Boilermakers), 141 for the Intervenor (EMTs and Paramedics, a division of NAGE, SEIU), and 277 for neither labor organization, with 27 challenged ballots, an insufficient number to affect the results. The hearing officer found that the Intervenor's mailings to 94 employees during the election campaign were returned to it due to incorrect addresses on the Excelsior list. By letter dated July 1, 1997, the Intervenor informed the Employer of its concern that the Excelsior list contained numerous incorrect addresses and requested an "updated mailing list." The Intervenor reiterated its concern and request in a July 8 telephone conversation with the Employer's counsel. The Employer did nothing further to correct the list.

Chairman Gould and Member Fox stated in finding that the Employer's disregard for the Intervenor's request is incompatible with the Excelsior requirements: "When presented with the Intervenor's report that numerous employees had failed to receive its mailings, the Employer was obligated to use its best efforts to furnish corrected addresses, especially in light of its policy that employees were required to report address changes. The fact that the Postal Service could have forwarded some of the Intervenor's mailings to the employees' correct addresses in no way minimizes this obligation, and the hearing officer's reliance on this fact to find that the Employer substantially complied with its Excelsior duty is erroneous." Chairman Gould believes that whether the Employer acted in good faith is not relevant to resolving an objection to an Excelsior list. Member Fox does not disagree that the Employer may well have been acting in good faith at the time it submitted the original list. She found the objectionable conduct was the Employer's response to the message that a substantial number of the addresses were inaccurate. The majority found it unnecessary to pass on the hearing officer's recommendation to overrule Intervenor's Objection 5.

Dissenting Member Hurtgen noted that there was no evidence that the inaccuracies in the Excelsior list were caused by gross negligence or bad faith on the Employer's part. He noted further that the inaccuracies were limited to employee addresses, not names; and that the return rate was only 4 percent. Member Hurtgen stated: "The Employer had furnished its last best list. Further, as a fail-safe measure, it used the 'please forward' legend on its envelopes; the Intervenor could have done the same. Finally, the Postal Service took care of the problem (except for 4 percent) by giving the Intervenor the new addresses. Intervenor then successfully used these new addresses." Member Hurtgen would adopt the hearing officer's finding regarding Objection 5, that the Employer's display of "Vote Neither" banners at the Southgate, Los Angeles/Jefferson, and Palmdale facilities did not constitute objectionable conduct.

Health Management, Inc. (26-CA-17505; 326 NLRB No. 67) Memphis, Tenn. Aug. 27, 1998. Chairman Gould and Member Liebman found, contrary to the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act through District Manager Sherrill Stevens when she solicited grievances during a meeting with four working supervisors. There were no exceptions to the judge's finding that these individuals were statutory employees, not supervisors within the meaning of Section 2(11) of the Act. The judge found that Stevens, in her meeting with the shift supervisors 2 months after she begun work as the Respondent's senior executive, voiced a permissible inquiry "as to the problems leading to the Union campaign and employee dissatisfaction with management" as a new manager. The majority disagreed, finding that "Steven's relatively recent arrival at the Respondent's facility does not rebut the inference of a promise to remedy those grievances as an alternative to union representation." [HTML] [PDF]

Member Hurtgen, dissenting in part, agreed with the judge that Stevens' comments did not constitute an unlawful solicitation of employee grievances. He stated: "In sum, this was an effort of a new district manager to find out what was going on at the plant and what had led to the Union's campaign. It was neither intended nor reasonably seen as an effort to purchase antiunion allegiance by promising benefits in return for a rejection of the Union."

Charge filed by General Drivers, Salesmen & Warehousemen's Local 984; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Memphis, May 7-8, 1997. Adm. Law Judge Lawrence W. Cullen issued his decision Aug. 22, 1997.

New Brunswick General Sheet Metal Works (22-CA-19959, 20215; 326 NLRB No. 77) Highland Park, N.Y. Aug. 27, 1998. A majority of the panel (Chairman Gould and Member Fox) found that the Respondent recognized Sheet Metal Workers Local 27 as the exclusive representative of unit employees under Section 9(a) of the Act, that the Respondent unlawfully withdrew recognition of the Union's 9(a) status in violation of Section 8(a)(5), that an employee strike which began on June 20, 1994 was an unfair practice strike, and that the Respondent unlawfully refused to reinstate the strikers immediately upon their unconditional offer to return to work. [HTML] [PDF]

In separate opinions, a majority of the panel (Chairman Gould and Member Hurtgen) agreed with the judge that the Respondent did not violate Section 8(a)(5) by unilateral changes or by direct dealing with unit employees. Member Hurtgen would dismiss the complaint in its entirety.

Member Fox, dissenting in part, found that the Respondent breached its bargaining obligation by meeting directly with unit employees and by unilaterally implementing changes in unit employees' wages and benefits in violation of Section 8(a)(5) and that these actions also render invalid the Respondent's offers of reinstatement to former strikers.

Charges filed by Sheet Metal Workers Local 27; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Newark, June 7-8, 1995. Adm. Law Judge D. Barry Morris issued his decision Sept. 28, 1995.

Mountaineer Steel, Inc. (9-CA-34103-1, 34103-2; 326 NLRB No. 66) Accoville, W. Va. Aug. 27, 1998. Chairman Gould and Member Liebman agreed with the administrative law judge that the Respondent created the impression of surveillance when Foreman Grover Chambers accused employee Ronnie Williams of being a "union radical." Citing United Charter Service, 306 NLRB 150 (1992), Chairman Gould and Member Liebman agreed with the judge that Chamber's direct, personal reference to Williams' union sympathies would reasonably lead Williams to believe that his protected activities were under surveillance. They found, as did the judge, that the impression-of-surveillance issue "was sufficiently raised by the pleadings and fully litigated at the hearing," and the Respondent does not contend otherwise. [HTML] [PDF]

Member Brame, dissenting, noted that the General Counsel did not allege that the comment constituted an impression of surveillance, but only that the statement was an "accusation." Further, he does not find that the facts would lead employees reasonably to infer that the Respondent was covertly observing their protected activities.

Charges filed by Mine Workers Local 1582; complaint alleged violation of Section 8(a)(1). Hearing at Charleston, May 19-21, 1997. Adm. Law Judge Margaret M. Kern issued her decision Nov. 12, 1997.

Wire Products Manufacturing Corp. and R.T. Blankenship & Associates and Rayford T. Blankenship (30-CA-12645, et al.; 326 NLRB No. 62) Merrill, Wis. Aug. 27, 1998. Chairman Gould and Member Fox found that the unfair labor practices committed by Wire Products Manufacturing Corporation (the Employer) tainted the decertification petition on which the Respondents relied in withdrawing recognition from Machinists District 200, and that a broad cease-and-desist order is warranted against Respondents R.T. Blankenship & Associates and Rayford T. Blankenship (Blankenship) "given the seriousness of the violations and Blankenship's demonstrated proclivity to violate the Act." Member Hurtgen concurred and dissented in part. [HTML] [PDF]

The Employer's misconduct included sending unit employees a letter encouraging them to decertify the Union; promulgating, maintaining, and enforcing overly broad rules restricting the posting and distribution of union literature and the conduct of union business on its premises; failing to recall one employee, disciplining two others, and discriminatorily excluding employees on the Union's bargaining committee from an employee meeting; and unilaterally changing wages and other terms and conditions of employment. The Employer and Blankenship unlawfully informed employees that a wage increase would be delayed because the Union had filed charges against the Respondents, falsely informed employees that the Union had lost its majority status and would no longer represent them, coercively interrogating employees, withdrawing recognition from the Union, and refusing to meet and negotiate.

Member Hurtgen, concurring and dissenting in part, agreed that the Employer's July 18, 1994 letter to its employees was unlawful in one particular. He found that the Employer lawfully informed the employees of the existence of the petition, expressed its antiunion views, and imparted information on how the employees could rid themselves of the Union. "At this same time, the Employer was maintaining and enforcing a rule (found unlawful in this case) which prohibited, among other things, distribution of 'union literature,' and 'conducting union business during working hours and/or on Company premises,'" Member Hurtgen wrote, in finding this portion of the letter to be unlawful. He agreed that there is a causal nexus between several of the Employer's unfair labor practices and the employees' disaffection from the Union, and that the decertification petition was tainted. Member Hurtgen would not find a causal nexus between the discriminatory refusal to recall Edwards from layoff and the petition.

Charges filed by Machinists District 200; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Merrill, July 17-21, 1995. Adm. Law Judge Richard A. Scully issued his decision Feb. 2, 1996.

Alwin Manufacuring Co., Inc. (30-CA-12556, et al.; 326 NLRB No. 63) Green Bay, Wis. Aug. 27, 1998. Chairman Gould and Member Liebman, finding that the administrative law judge's remedies are "well tailored to fit the nature and the extent of the violations committed by the Respondent," ordered the Respondent to reimburse the Steelworkers for the costs and expenses it incurred in the preparation and conduct of the collective-bargaining negotiations and in connection with an unfair labor practice strike; and to reimburse the Union and the General Counsel for all litigation costs, including attorneys' fees. Member Brame, dissenting in part, disagreed with the "extraordinary" remedies granted by his colleagues. [HTML] [PDF]

In Alwin Mfg. Co., 314 NLRB 564 (1994), enfd. 78 F.3d 1159 (7th Cir. 1996) (Alwin I), the Board and the court of appeals found that the Respondent violated Section 8(a)(5) and (1) of the Act by making unilateral changes in minimum production requirements and vacation policy. Chairman Gould and Member Liebman wrote in affirming the judge's remedies here:

Member Brame, dissenting in part, would not find that the Respondent violated Section 8(a)(3) by its conduct toward Anderson and Tilly. Contrary to his colleagues, he would not require the Respondent to reimburse the union for costs incurred in the strike and the reimbursement of litigation costs. Member Brame does not believe that the Respondent's conduct in bargaining prior to the issuance of the Board's decision in Alwin I constituted "unusually aggravated misconduct." Frontier Hotel, 318 NLRB 857, 859 (1995), enfd. In part and enf. denied in part sub nom . Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997). Member Brame would however award negotiation costs to the Union for the August 26, 1994 negotiation session because at that point the Board's Alwin I decision had issued and the Respondent failed to materially modify its bargaining position.

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Green Bay for 14 days between May 1 and July 12, 1995. Adm. Law Judge Robert M. Schwarzbart issued his decision Sept. 25, 1996.

Range Systems Engineering Support (12-RC-8172; 326 NLRB No. 85) West Palm Beach, Fla. Sept. 16, 1998. The Board denied the Union's request for review of the Regional Director's decision and order dismissing the petition as it raised no substantial issues warranting review. The Employer is engaged in operating a military weapons testing facility in Andros Island, the Bahamas, pursuant to a contract with the U.S. Navy. Laborers Local 767, the petitioning union, sought to represent a group of the Employer's employees who are assigned to work on Andros Island. The issues on review were whether the Regional Director erred in finding that the Board does not have jurisdiction over the Employer's military weapons testing operations in the Bahamas; and whether the Regional Director erred in granting the Employer's motion to strike the Union's posthearing submission of documents. [HTML] [PDF]

Central Illinois Public Service Company (33-CA-10238, et al.; 326 NLRB No. 80) Springfield, Ill. August 27, 1998. The Board, reversing the administrative law judge, held that the Respondent did not violate Section 8(a)(3) and (1) by locking out its union-represented employees in response to "inside game" tactics implemented by the Unions to pressure the Respondent to reach agreement on terms for successor collective-bargaining contracts. Chairman Gould and Member Hurtgen signed the majority opinion. Member Liebman dissented with respect to that holding. [HTML] [PDF]

"In sum, we find that under the test set forth in Great Dane, that the lockout here was not 'inherently destructive' of employee rights and there were 'legitimate and substantial' business interests justifying whatever comparatively slight impact the lockout may have had on employee rights. Because we have further found no specific evidence that the Respondent acted on the basis of an antiunion motive, we conclude that the lockout did not violate Section 8(a)(1) and (3) of the Act. Accordingly, we shall dismiss this aspect of the complaint.

We agree with the judge that the Respondent violated Section 8(a)(3) and (1) by terminating unit employees' health insurance coverage on May 21-22, and by failing to pay disabled employees supplemental workers' compensation benefits during the lockout. We do not, however, adopt the judge's rationale for finding these violations."

"[T]he Unions' inside game was inextricably intertwined with the Unions' bargaining position. Thus, the lockout was not because of 'hostility' toward the inside game or toward union membership or activities. Rather, the lockout was related to the inside game which was resorted to by the Unions in support of their bargaining position and in opposition to the Respondent's bargaining position."

Member Liebman would agree with the judge that, under the Great Dane analysis, the lockout was motivated by antiunion considerations in violation of Section 8(a)(3) of the Act, and was not justified by legitimate and substantial business objectives.

Charges filed by Electrical Workers IBEW Local 702 and Operating Engineers Local 148; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Peoria and Springfield on various days from October 24, 1994- April 25, 1995. Adm. Law Judge Marvin Roth issued his decision May 20, 1996.

The Tiberti Fence Company (28-RC-5628; 326 NLRB No. 56) Las Vegas, Nev. August 28, 1998. Denying the Employer's request for view of the Regional Director's decision and direction of election, the Board found that the role played by the foremen in recommending wage increases for their helpers is not carried out "in the interest of the employer." The majority opinion by Members Fox and Liebman stated: [HTML] [PDF]

"What is critical is that the requests for wage increases are independently reviewed and based on higher management's own assessment of whether the recommended wage increase is appropriate, and that recommended wage increases can be and have been denied."

In dissent, Member Hurtgen would grant review because he thought "the foremen may well be supervisors," noting that they can and do make recommendations on helper wage increases and that the Employer plays a decisive role in granting such increases.

CBS Corporation f/k/a Westinghouse, et al. (6-CA-27184, 6-CA-27261; 326 NLRB No. 73) Pittsburgh, Pa. August 27, 1998. Agreeing with administrative law judge, the Board found that the Respondents' subcontracting actions violated Section 8(a)(5) of the Act because the two relevant collective-bargaining agreements preclude subcontracting during their terms without union approval. In support of that position, the judge relied on a zipper clause in each of these contracts which, he found, privileged the Union's refusal to discuss subcontracting during the terms of the agreements. [HTML] [PDF]

The Respondents had contended that the zipper clauses do not privilege the Union's refusals to negotiate. The majority stated:

"Although the zipper-clause language here at issue may be standard for the Respondents' contracts, it is not the kind of zipper clause that was at issue in the cases relied on by the Respondents. In this regard, we note particularly that the clauses in this case operate with respect to matters that were 'discussed' during the negotiation of the contracts, and in none of these other cases did a contract clause serve to 'zip up' bargaining over 'discussed' matters."

In a concurring opinion Chairman Gould said he found fault "with the Board's application of the clear and unmistakable waiver standard in recent years," citing Michigan Bell Telephone and Mead Corp.

Charges filed by Plant Guard Workers Local 502; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Pittsburgh, April 23-24, 1996. Adm. Law Judge Wallace H. Nations issued his decision Aug. 12, 1996.

Jo-Del, Inc. (9-CA-34992, 9-RC-16862; 326 NLRB No. 27) Huntington, W.Va. Aug. 24, 1998. Agreeing with the administrative law judge, the Board set aside a first mail ballot election and directed that a second one be held given the Respondent's objectionable conduct at a mandatory meeting held days before the election. At that meeting, the Respondent's owner showed employees a blank sheet of paper and announced "this is what your union contract will be." Member Hurtgen concurred in directing a new election but dissented on the judge's finding that statements by the Respondent owner to one employee were coercive and interfered with the election. [HTML] [PDF]

Charge filed by Tri-State Building and Construction Trades Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing held May 6-7, 1997. Adm. Law Judge Margaret Kern issued her decision Nov. 14, 1997.

Dial-A-Mattress Operating Corporation (29-RC-8442; 326 NLRB No. 75) Long Island, N.Y. Aug. 27, 1998. The Board, reversing the Regional Director, found that the Employer's owner-operators--who provide customer delivery services--are independent contractors under the common-law agency test. Among the factors cited by the Board weighing in favor of independent contractor status for Dial's owner-operators are the following: [HTML] [PDF]

The Board also pointed out that the owner operators have a separate identity from Dial that suggests independent contractor status. It stated:

In dissent, Chairman Gould would agree with the Regional Director that the owner-operators have employee status. He maintained "[t]here are a number of areas where Dial has exerted significant control over the manner and means used by the owner-operators in timely delivering mattresses. Such control traditionally points toward an employer-employee relationship."

Roadway Package System, Inc., a wholly owned subsidiary of Roadway Services, Inc. (31-RC-7267, 31-RC-7277; 326 NLRB No. 72) Ontario, Calif. Aug. 27, 1998. In affirming the Regional Director's Decision and Direction of Election, the Board concludes the petitioned-for pick up and delivery drivers are employees under the Act and not independent contractors. In so finding, it applied the common-law agency test and considered "all the incidents of the individual's relationship to the employing entity." [HTML] [PDF]

The Board adopted the multifactor analysis of the Restatement (Second) of Agency, Section 220, which lists 10 factors "among others" that should be considered. Finding similarities between the employee-employer relationship presented in United Insurance and in this case, the Board noted these factors as weighing heavily in favor of employee status for Roadway's drivers:

"As in United Insurance, the drivers here do not operate independent businesses, but perform functions that are an essential part of one company's normal operations; they need not have any prior training or experience, but receive training from the company; they do business in the company's name with assistance and guidance from it; they do not ordinarily engage in outside business; they constitute an integral part of the company's business under its substantial control; they have no substantial proprietary interest beyond their investment in their trucks; and they have no significant entrepreneurial opportunity for gain or loss."

The Board rejected Roadway's contention that the "right of control" factor should predominate, and instead agreed with the Union's position that "all the factors should be weighed in the equation."

Chairman Gould concurred in the majority's application of the common-law agency test to find the drivers are employees under Section 2(3). However, he disagreed with the majority's finding that the drivers here differ from the owner-operators in Dial-A-Mattress, 326 NLRB No. 75 (August 27, 1998).

"For the reasons stated in my dissenting opinion in that case, I would find that the owner-operators in Dial-A-Mattress, like the drivers here, are not independent contractors," Chairman Gould stated.

AmeriHealth Inc./AmeriHealth HMO (4-RC-19260; 326 NLRB No. 55) Atlantic and Cape May County, N.J. Aug. 27, 1998. The Board directed the Regional Director to hold a hearing in this election case for the purpose of receiving evidence to resolve the question whether the petitioned-for-physicians are or are not employees under the Act. The Board's order reversed the Regional Director's January 8, 1998 dismissal of the petition. On the basis of the parties' submissions pursuant to the Notice to Show Cause procedure and an investigation, the Regional Director determined that the physicians sought are independent contractors and accordingly are not employees of the Employer within the meaning of the Act. [HTML] [PDF]

The Board found merit to the Petitioner's argument that a hearing is necessary to develop the full fact context for determining the extent to which AmeriHealth monitors and controls the provision of medical care to its patients. It stressed that its decision makes no determination on the status of the petitioned-for physicians.

In dissent, Member Brame would have affirmed the Regional Director's dismissal of the petition which he said is consistent with established precedent. He stated that "it would appear that the only purpose of the remand is to provide the Petitioner with another opportunity to present evidence favorable to its position."

Farm Fresh, Inc. t/a Nicks', et al. (5-CA-21155, et al.; 326 NLRB No. 81) Virginia Beach, Hampton, Portsmouth, and Williamsburg, Va. Aug. 27, 1998. Affirming an administrative law judge but for different reasons, a majority of Chairman Gould and Members Brame and Hurtgen dismissed the complaint allegation that the Respondent unlawfully ejected two nonemployee union organizers from its grocery store snack bar in light of Lechmere. Chairman Gould set forth his view on this issue in a concurring opinion; Members Fox and Liebman joined in a dissenting opinion. [HTML] [PDF]

The majority opinion found no showing that the store employees were beyond the reach of the Union's organizational message. It noted that both before and after the organizers were ejected from the snack bar, the Union was free to and did solicit employees in the store's parking lot beyond the 50-foot boundaries of the Employer's no-solicitation rule. The majority found no evidence that the Respondent enforced this rule in disparate fashion, or that the employees were physically inaccessible from union efforts to communicate with them. It stated:

Dissenting Members Fox and Liebman, although agreeing that the Respondent lawfully ejected the organizers from the snack bar, contend that in reaching this conclusion the majority had unnecessarily "reach[ed] out" to overrule Montgomery Ward, a decision they maintained has no bearing on this issue. They stated: "In sum, we consider the rationale for the Montgomery Ward line of cases to be as valid today as it has ever been, and because it is grounded in the Babcock & Wilcox rule that an employer may not discriminate in its access rules against union solicitation, it is not undermined by any statement or holding of the Court in Lechmere. We therefore dissent from the majority's finding that this line of cases has been effectively overruled by Lechmere."

In his concurring opinion, Chairman Gould expressed his view that "the Court's opinion in Lechmere is bad law and contrary to the basic policies of the National Labor Relations Act."

On another issue, the Board found the Respondent possessed a sufficient property interest in sidewalks outside some, but not all of its stores and that the Respondent violated Section 8(a)(1) only at the stores where it removed nonemployee organizers from the sidewalks in which it retained an insufficient property interest. Chairman Gould and Member Hurtgen set forth their views on this issue in a separate concurrence.

Charges filed by Food and Commercial Workers Local 400; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Portsmouth and Norfolk on various dates between Nov. 14 and Dec. 18, 1991. Adm. Law Judge Joel A. Harmatz issued his decision Jan. 19, 1993.

Automotive, Petroleum and Allied Industries Employees Local 618 (Chevron Chemical Company) (14-CB-7390; 326 NLRB No. 34) St. Louis, Mo. Aug. 24, 1998. The Board affirmed that administrative law judge's ruling that under Beck a union need not account for its representational expenses on a unit-by-unit basis. It found the Respondent Union was privileged to calculate its Beck fee allocation on other than a unit-by-unit basis and therefore dismissed this complaint allegation. [TEXT] [PDF]

The Board also upheld the judge's recommended dismissal of an allegation that the Union violated the Act by failing adequately to disclose the basis for its allocation of chargeable and nonchargeable items in the accounting it provided charging party Delbert Reed, a Beck objector. It stated:

"California Saw requires that the union inform the objector of 'the major categories of expenditures' so as to enable objectors 'to determine whether to challenge' a union's claim that designated expenditures are chargeable. Id. A union need not, at the prechallenge stage, establish full justification for its fee calculation. That burden is created only if and after the employee files a challenge to that figure." Connecticut Limousine Service, 324 NLRB No. 105, slip op. at 2 (Oct. 2, 1997).

On a third allegation, the Board reversed the judge, finding the Respondent violated Section 8(b)(1)(A) by offsetting interest and dividend income it received during the relevant period against nonchargeable expenditures prior to determining the respective percentages of chargeable and nonchargeable expenditures.

Charge filed by Teamsters Local 618; complaint alleged violation of Section 8(b)(1)(A). Hearing at St. Louis on Jan. 29, 1992. Adm. Law Judge Michael O. Miller issued his decision May 21, 1992.

North Carolina Shipping Association and its Member, Southeast Crescent Shipping Co. and Alter Ego Southeast Crescent Terminal Co. (11-CA-16155, 11-CB-2483; 326 NLRB No. 18) Wilmington, N.C. Aug. 24, 1998. The Board agreed with the judge's findings that Respondent Southeast Crescent Shipping Co. and its alter ego (Respondent Employer), through the actions of its agent, James Grady, violated Section 8(a)(3) and (1) of the Act by discriminatorily denying charging party Emmett Denkins, a permanent assignment on a warehouse crew; and that the Respondent Union, also through the actions of agent Grady, violated Section 8(b)(1)(A) and (2) by causing the Employer to discriminate against Denkins. [HTML] [PDF]

The Board, however, did not agree with the judge's finding that Respondent North Carolina Shipping Association is liable for the unfair labor practices engaged in by its member, the Respondent Employer.

Charge filed by Emmett L. Denkins, an Individual; complaint alleged violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2). Hearing at Wilmington, April 29-30, 1996. Adm. Law Judge Philip P. McLeod issued his decision Sept. 12, 1996.

Nouveau Elevator Industries, Inc. (29-RC-8701, 8732; 326 NLRB No. 49) New York, N.Y. Aug. 27, 1998. A Board majority denied the Petitioner's appeal from a Regional Director's decision refusing to conduct mail ballot elections. Members Fox and Liebman found that the Regional Director acted within his discretion in determining that manual ballot elections would maximize turnout and afford all eligible voters an adequate opportunity to cast ballots. They wrote that the factors would have supported a decision to hold a mail ballot or a mixed mail-manual ballot election. "Indeed, had the decision been ours as an initial matter, we would have determined to conduct some or all of the elections by mail. * * * Nevertheless, [ ], given the broad discretion the Board has invested in the Regional Director, we find the Regional Director did not abuse his discretion by ordering a manual election." [HTML] [PDF]

Concurring, Members Hurtgen and Brame agreed that a manual ballot was correctly ordered, but disagreed that a mail ballot or mixed mail-manual ballot would also have been proper. Dissenting, Chairman Gould would direct a mail ballot election for employees for whom the logistics of traveling to the polls might impede them from voting. He believes that the use of mail ballots is appropriate in all situations where the prevailing conditions are such that they are necessary to preserve agency resources and/or enfranchise employees.

Masiongale Electrical-Mechanical, Inc. (25-RC-9761; 326 NLRB No. 51) Indianapolis, Ind. Aug. 27, 1998. The Board majority of Members Fox and Liebman denied review of a Regional Director's direction of a mail ballot election based on its agreement that the widely scattered work sites and the need to conserve agency resources "fits squarely "within the parameters of the Casehandling Manual and the guidelines set forth in San Diego Gas & Electric, 325 NLRB No. 218 (June 21, 1998). Chairman Gould concurred but would also find that the Regional Director's reliance on the conservation of agency resources is alone sufficient basis for directing a mail ballot election. Dissenting, Members Hurtgen and Brame concluded there was no basis for holding a mail ballot election and would order a manual election because a singe Board agent could conduct a "traveling" election in a single day, especially if the Marion employees report to the Muncie office each day as contended by the Employer. [HTML] [PDF]

Lafayette Park Hotel (32-CA-15314; 326 NLRB No. 69) Lafayette, Calif. Aug. 27, 1998. On a stipulated record, the Board ruled that the Respondent-Hotel violated Section 8(a)(1) of the Act by maintaining certain "unacceptable conduct" rules in its employee handbook. A majority, of Chairman Gould and Members Hurtgen and Brame with Members Fox and Liebman dissenting, found that the standards of conduct 6 (conduct that does not support the Employer's goals and objectives), 17 (divulging hotel private information to unauthorized individuals), and 31 (unlawful or improper conduct off the Employer's premises or during nonworking hours) and hotel rules 6 (use of the restaurant or cocktail lounge for entertaining guests without prior approval) and 7 (fraternizing with hotel guests on hotel property) would reasonably tend to chill the exercise of Section 7 rights. A different majority, of Chairman Gould and Members Fox and Liebman with Members Hurtgen and Brame dissenting, found that standard of conduct 18 (making false statements concerning the hotel or its employees) would reasonably tend to chill employees in the exercise of their Section 7 rights. The Board unanimously held that scheduling and attendance rule, paragraph 4 (requiring employees to leave the premises immediately after completion of their shift) violated Section 8(a)(1). (Chairman Gould wrote a separate concurring opinion. Members Fox and Liebman wrote a separate opinion dissenting in part. Member Hurtgen wrote a separate opinion concurring in part and dissenting in part.) [HTML] [PDF]

Charge filed by Hotel Employees and Restaurant Employees Local 2850; complaint alleged violation of Section 8(a)(1). Parties filed a stipulation of facts Nov. 12, 1996.

North American Plastics Corp. (13-RC-19824; 326 NLRB No. 70) Aurora, Ill. Aug. 27, 1998. A Board majority of Members Fox and Liebman with Chairman Gould concurring, denied review and appeal of a Regional Director's decision to direct a mail ballot election. In so doing, Members Fox and Liebman stressed that "this is not the usual or 'normal' mail ballot case; rather it is a case in which the Employer has interfered with normal (and agreed-on) Board processes, and then comes to us objecting to the resolution reached to the problem it created." They agreed with the Regional Director's refusal to conduct a manual election on the Employer's premises in light of the Employer's reneging on its agreement to allow all potentially eligible voters onto its premises to vote. Members Fox and Liebman also noted that the Regional Director's decision was grounded on consideration of the parties' desires and the conservation of agency resources. In addition, they supported the Regional Director's decision not to conduct a mixed manual-mail election. Thus, they found the Regional Director did not abuse her discretion. [HTML] [PDF]

Concurring in a separate opinion, Chairman Gould would find that the Regional Director's reliance on the conservation of scarce agency resources is a sufficient basis for directing a mail ballot election. Dissenting, Members Hurtgen and Brame support the use of a mixed manual-mail ballot election, noting that there is no basis for an all-mail election and that the Casehandling Manual provides a reasonable alternative.

Show Industries, Inc. and B.M. Merger Sub. B Inc., d/b/a Show Industries, Inc. (21-CA-29544; 326 NLRB No. 76) Los Angeles, Calif. Aug. 27, 1998. A Board majority of Members Hurtgen and Brame, with Chairman Gould concurring in a separate opinion, held that the Respondent did not violate Section 8(a)(5) and (1) of the Act because it did not fail and refuse to bargain unconditionally with the Union, Teamsters Local 598, regarding the effects on the bargaining unit of the closure of the Respondent's Los Angeles warehouse. The majority rejected the General Counsel's argument that the Respondent engaged in piecemeal, conditional bargaining in violation of the Act by offering to engage in effects bargaining without curing its previous unlawful refusal to recognize and bargain with the Union. (See Show Industries, 305 NLRB No. 72 (Nov. 8, 1991) (unpublished)). They noted that the Respondent did not violate the Act by bargaining about "effects" while continuing to challenge the Union's certification. [HTML] [PDF]

Chairman Gould concurring wrote separately "to state [his] views that Specialized Living should be overruled." Instead he proposes that "whatever the outcome of a test of certification proceeding, an employer's bargaining conduct during the pendency of that proceeding should be considered in isolation," he stated.

Dissenting, Members Fox and Liebman stated that the Respondent's conduct "falls squarely into the category of bad-faith bargaining" and that the General Counsel established that by offering to discuss only the warehouse shutdown the Respondent engaged in unlawful piecemeal bargaining. Here, they stated, "the Respondent unconditionally refused to recognize and bargain with the Union in order to obtain court review of the certification pursuant to the statutory scheme."

Charge filed by Teamsters Local 598; complaint alleged violation of Section 8(a)(1) and (3). Parties filed motion to transfer proceedings to the Board and stipulation of facts Sept. 23, 1994.

Union Square Theatre Management, Inc. (2-CA-28430 and 2-RC-21540; 326 NLRB No. 17) New York, N.Y. Aug. 17, 1998. Members Fox and Hurtgen found, in dismissing the complaint, that the technical directors (TDs) working for the Respondent at four off-Broadway theatres are statutory supervisors and that the Respondent did not violate Section 8(a)(1) of the Act by making allegedly coercive statements to two TDs and did not violate Section 8(a)(3) by discharging one of them. The majority also dismissed the representation petition in Case 2-RC-21549 filed by Theatrical Employees Local One because the unit petitioned for consists of only the technical directors and no statutory employees. Chairman Gould, dissenting, would find that the TDs are statutory employees and, in agreement with the administrative law judge, he would impose a Gissel bargaining order based on the Respondent's multiple Section 8(a)(1) violations directed at TDs and the discharge of one of them in violation of Section 8(a)(3). [HTML] [PDF]

Charge filed by Theatrical Employees Local One; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, May 22-23, 1996. Adm. Law Judge Steven Davis issued his decision Sept. 3, 1996.

Community Affairs, Inc. (22-RC-11485; 326 NLRB No. 24) Trenton, N.J. Aug. 25, 1998. The Board denied the Employer's request for review of the Regional Director's letter rejecting the Employer's request to conduct a check of Communication Workers Local 1040's showing of interest against the Employer's late-filed list of employee names. An unpublished order denying review originally issued on May 8, 1998. The Regional Director would not conduct a check of the Union's showing of interest because the Employer failed to timely submit the necessary employee and payroll documentation when initially requested by the Regional Office. [HTML] [PDF]

General Security Services Corp. (21-CA-31218, 31262; 326 NLRB No. 42) Los Angeles, Calif. Aug. 25, 1998. Members Fox and Liebman found, contrary to the administrative law judge, that Alfred Cracolici, whom the Respondent employed as an assistant lead court security officer, is not a supervisor and that the Respondent transferred, demoted, suspended, and terminated Cracolici in violation of Section 8(a)(3) and (1) of the Act because of his activities for Government Security Officers Local 74. Chairman Gould, concurring, wrote separately because he would find violations of Section 8(a)(1) even if Cracolici were a statutory supervisor. Members Hurtgen and Brame, dissenting, agreed with the judge that Cracolici was a statutory supervisor and would dismiss the complaint. The Respondent, which provides security services to the federal courthouse in Santa Ana, California under a contract with the U.S. Marshall Service, contended that it would have discharged Cracolici even in the absence of his union activities because he violated its telephone-abuse work rule. [HTML] [PDF]

Charge filed by Alfred Cracolici, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, April 7-8, 1997. Adm. Law Judge Albert A. Metz issued his decision June 30, 1997.

Beverly Enterprises-Hawaii, Inc. d/b/a Hale Nani (37-RD-302; 326 NLRB No. 37) Honolulu, Hawaii Aug. 26, 1998. A Board majority, Members Fox, Liebman, Hurtgen, and Brame, held in separate opinions, that the Employer did not engage in objectionable conduct warranting setting aside a decertification election held on December 5, 1996 by maintaining an overly broad no-distribution rule prohibiting employees from distributing literature in working areas while allowing its supervisors to distribute antiunion literature in such areas. The election results (71 for and 84 against AFSCME Local 646) were certified. Chairman Gould dissented, finding that the Employer's conduct constituted disparate enforcement of its no-distribution rule. In the absence of exceptions, the Board adopted pro forma the hearing officer's recommendations that Objections 3 through 13 and the remaining portions of Objections 1 and 2 be overruled. [HTML] [PDF]

Sprint/United Management Company (28-CA-13599; 326 NLRB No. 32) Phoenix, Ariz. Aug. 27, 1998. The Board found that the Respondent promulgated a rule prohibiting employees from using their lockers for any purpose other then their use in connection with work and removing and confiscating union flyers that had been distributed in employees' lockers in violation of Section 8(a)(1) of the Act. The parties filed a stipulation of facts and a joint motion to transfer proceedings directly to the Board. [HTML] [PDF]

Charge filed by Communications Workers Local 7019; complaint alleged violation of Section 8(a)(1). Parties waived their right to a hearing before an administrative law judge.

Gimrock Construction, Inc. (12-CA-17385; 326 NLRB No. 33) Miami, Fla. Aug. 27, 1998. The Board affirmed the administrative law judge's decision, as corrected, that the Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to reinstate economic strikers upon their unconditional offer to return to work. [HTML] [PDF]

Charge filed by Operating Engineers Local 487; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami, March 20-21, 1996. Adm. Law Judge Raymond P. Green issued his decision May 31, 1996.

Electrical Workers IBEW Local 666 (Stokes Electrical Service, Inc.) (5-CB-7925; 326 NLRB No. 44) Richmond, Va. Aug. 27, 1998. On a stipulated record, Chairman Gould and Members Fox and Liebman found that the Respondent did not violate Section 8(b)(1)(B) or (A) of the Act by unilaterally invoking the interest arbitration clause contained in multiemployer collective-bargaining agreements after Stokes Electrical Service, Inc. had withdrawn from the multiemployer unit, and unlawfully attempting to enforce the resulting arbitration awards. The majority found that the collective-bargaining agreements arguably bound Stokes as a single employer to the contractual provisions for interest arbitration over any unresolved issues in bargaining for a successor contract. Citing Electrical Workers IBEW Local 113 (Collier Electric), 296 NLRB 1095 (1989) and Sheet Metal Workers Local 20 (Baylor Heating), 301 NLRB 258 (1991), the majority found that the General Counsel failed to establish that the Respondent had no reasonable basis for pursuing the unresolved bargaining issues through interest arbitration or for instituting legal action in court to enforce the resulting arbitration awards. [HTML] [PDF]

Member Hurtgen, dissenting, disagrees with the majority positions in Collier and Baylor, and agrees with the dissents in those cases. A fortiari, he would not extend those precedents to cover the instant case.

Charge filed by Stokes Electrical Service, Inc., complaint alleged violation of Section 8(b)(1)(A) and(B). Parties waived their right to a hearing before an administrative law judge.

R.G. Burns Electric, Inc. (3-CA-18261; 326 NLRB No. 41) Phelps, N.Y. Aug. 27, 1998. The Board agreed with the administrative law judge's conclusions that the Respondent failed to carry its burden of showing that the Union's charge was untimely under Section 10(b) of the Act, and that the Respondent violated Section 8(a)(3) and (1) by refusing to employ eight job applicants because of their union affiliation and activities on behalf of Electrical Workers IBEW Local 840. Members Fox and Liebman, in modifying the judge's decision by deleting references to the Respondent's refusal to consider the applicants for hire, noted: the complaint alleged solely refusal to hire violations, the case was litigated on this theory, the judge throughout his discussion of the alleged unfair labor practices refers to the violations as refusals to hire, and his recommended remedy reflects a finding of refusal to hire violations. Chairman Gould would find that both theories of violations were fully litigated before the judge. Based on the evidence presented, he would adopt the judge's findings that the Respondent both refused to consider and to hire seven of the eight applicants. [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 840; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Rochester, Nov. 2-3, 1994. Adm. Law Judge Jesse Kleiman issued his decision Nov. 29, 1995.

Alcohol and Drug Dependency Services, Inc. (3-RD-1251; 326 NLRB No. 58) Buffalo, N.Y. Aug. 27, 1998. Chairman Gould and Member Fox agreed with the Regional Director that an election held on November 19, 1997 should be set aside because the Union (Civil Service Employees Association, AFSCME Local 1000) did not timely receive the Excelsior list of eligible voters. Accordingly, the majority set aside the election (the Union lost 50-48) and directed that a second election be held. Member Hurtgen, dissenting, would overrule the objection and remand the Union's remaining objections to the Region for appropriate action. The Employer failed to provide the Excelsior list to the Region within 7 days of the Regional Director's approval of the election agreement. On the 8th day after approval of the agreement, the Region wrote the Employer about the overdue list. The Region failed to mail the list to the Employer until 3 days after receipt. The Employer received the list 5 days before the election. [HTML] [PDF]

Hausner Hard-Chrome of KY, Inc. (25-CA-23312, et al.; 326 NLRB No. 36) Owensboro, Ky. Aug. 27, 1998. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act through certain questioning of its employees and by various coercive statements of Marketing Director Jeff Hausner, Plant Manager Tony Clark, and the Respondent's agent, Ron Menzie. In affirming the judge's findings of similar 8(a)(1) violations on the basis of statements made by three of the Respondent's department heads (Randy Roby, Mark Gish, and Larry Schwartz), the Board reversed the judge's finding that the three are statutory supervisors and relied instead on evidence that they were cloaked with apparent authority to speak for the Respondent on the subjects in question and were therefore agents within the meaning of Section 2(2) and 2(13). The Board reversed the judge's dismissal of the allegation that the Respondent imposed more stringent restrictions on employees' on-the-job conversations in response to the organizing campaign, finding that the Respondent's imposed measures "were specifically aimed at preventing employees from talking about the Union while they worked" and "clearly amounted to disparate treatment." [HTML] [PDF]

Charges filed by the Mine Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing held Feb. 14-17, 1995. Adm. Law Judge Peter E. Donnelly issued his decision April 28, 1995.

Youville Health Care Center, Inc. (1-CA-34663(1-2), 34699; 326 NLRB No. 52) Cambridge, Mass. Aug. 27, 1998. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by promulgating at an October 17, 1996 meeting an oral rule restricting employee discussions of working conditions, but it relied on a different rationale, i.e., that the presumptive validity of the employer's rule was rebutted by a showing that the rule was adopted for a discriminatory purpose. Specifically, the record showed that Director of Nursing Terri Poster precipitously adopted a new rule restricting employee discussions of working conditions in response to the employees' protected concerted activity. Chairman Gould and Member Liebman also agreed with the judge that the record is insufficient to establish that Marie Waters, Barry Adams, and Meredith Scannel, who served in a rotating basis as charge nurses, are statutory supervisors and that the Respondent violated Section 8(a)(1) by disciplining them. Member Brame, dissenting on this issue, would find that the Respondent's charge nurse position is a supervisory one under Section 2(11) and that the Respondent did not violate the Act by disciplining Waters, Adams, and Scannel. [HTML] [PDF]

Charges filed by Barry Adams, Meredith Scannel, and Marie Waters, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Boston, May 21-22, 1997. Adm. Law Judge Arthur J. Amchan issued his decision Nov. 10, 1997.

Greenhorne & O'Mara, Inc. (6-RC-11314; 326 NLRB No. 57) Greenbelt, Md. Aug. 27, 1998. Chairman Gould and Member Fox found appropriate the petitioned-for unit of all archaeological technicians, including field technicians, lab technicians, field lab technicians, and crew chiefs employed by the Employer in its Cultural Resources Division at any project or jobsite within the United States or any of its territories. The majority also concluded that the Employer failed to establish that the crew chiefs are statutory supervisors or that the petitioned-for unit impermissibly combines professional and nonprofessional employees. The majority reinstated the representation petition filed by Archaeological Field Technicians, Operating Engineers Local 141, and remanded the proceeding to the Regional Director for further appropriate action including determination of the eligibility formula to be used and the direction of an election. Member Hurtgen, dissenting in part, would not, at this point, instruct the Regional Director to direct an election. He stated: "The precise eligibility formula to be used is presently uncertain, and it may turn out that a given formula results in few or no eligible employees. In addition, the Regional Director made no determination concerning the supervisory status of crew chiefs." [HTML] [PDF]

The Employer, an environmental consulting company, performs studies for private and public sector clients in three primary areas-land development, transportation engineering and planning, and environmental services. The Employer's cultural resources division has performed work in 15 to 20 states, as well as Puerto Rico. During the year preceding the hearing, the Employer's cultural resources division worked on approximately 20 projects, including several for the Federal government and a few for small developers in Virginia and Maryland. The projects lasted anywhere from 2 to 5 days to 5 weeks. An average of three to seven field technicians and one to two crew chiefs were employed on each project. The Regional Director dismissed the petition after finding that there is insufficient evidence to establish that there is a "key" or core group of employees on a recurring, employer-wide basis. The Regional Director found it unnecessary to determine the alleged supervisory and/or professional status of the Employer's crew chiefs and field technicians.

J.O. Mory, Inc. (25-CA-23625, et al.; 326 NLRB No. 61) South Medford, Ind. Aug. 27, 1998. The Board found, contrary to the administrative law judge, that the Respondent did not violate Section 8(a)(3) and (1) of the Act by refusing to consider for employment or to hire seven applicants because of their apparent intention to organize the Respondent's employees on behalf of Electrical Workers IBEW Local 305. Specifically, the Board found that the General Counsel failed to prove that the Respondent refused to consider or hire job applicants for antiunion reasons. In this regard, the Board disagreed with the judge's finding that the General Counsel proved unlawful discrimination based on a single unexplained variance from facially valid hiring practices. No exceptions were filed to the judge's finding that the Respondent did not discriminate against two applicants who were IBEW members (Langmeyer and Lepper) or against seven applicants who were members of the Sheet Metal Workers Union. The Board dismissed the complaint in its entirety. [HTML] [PDF]

Charges filed by Electrical Workers IBEW Local 305 and Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Kendallville, Feb. 3-4, 1997. Adm. Law Judge Earl E. Shamwell Jr. issued his decision July 17, 1997.

Rite Aid Corp. (19-RC-13486, 326 NLRB No. 78) Bremerton, Wash. Aug. 27, 1998. Chairman Gould and Member Fox affirmed the hearing officer's recommendation to sustain the Union's objections, to set aside the election (Food and Commercial Workers Local 381 lost 3-to-2), and to direct a second election. Contrary to the Employer's contention, the majority found this case is distinguishable from the Board's finding in Good Shepherd Home, 321 NLRB 426 (1996), that the union made a good-faith attempt to reimburse an employee for his actual transportation expenses. Here, the majority found the conduct objectionable under Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995). The majority wrote: [HTML] [PDF]

Member Hurtgen, dissenting, would find that the Employer's "reasonable reimbursement for an employee's time and expense did not amount to a benefit that could reasonably affect the outcome of the election." He disagrees with Sunrise. In his view, it is not objectionable if an employer offers transportation costs and reasonable compensation for loss of free time. Member Hurtgen would not require the employer to be precise as to what an individual's actual expenses are. And, he would not "condemn the offer here simply because it was made during the course of a [lawful] campaign speech."

Teamsters Local 688 (Jefferson Smurfit Corporation) (14-CB-8241; 326 NLRB No. 74) St. Louis, Mo. Aug. 27, 1998. The Board found that the Respondent Union violated Section 8(b)(1)(A) of the Act by failing to give 12 newly hired nonmember unit employees notice of their Beck rights before it first sought to obligate these employees to pay dues under the union-security clause. The Respondent did not arrange for the Employer to include a Beck notice in the packet of materials given to new hires when they were asked to join the Union and pay membership dues and fees. The respondent also did not use any other lawful method under California Saw that ensures that newly hired nonmembers are informed of their Beck rights before or at the time that they are obligated to pay dues under the union-security-clause. [HTML] [PDF]

The Board was split as to the class of employees to whom the remedy--sending notices and providing the opportunity for the exercise of Beck rights retroactively--should be extended. Chairman Gould (dissenting in part) would provide the remedy to all unit employees, whether they are members or nonmembers of the union; Member Hurtgen would require that the remedy be provided to all nonmember unit employees; and Member Fox (dissenting in part) would limit the class of employees to whom the remedy would be provided to nonmember employees whom the Respondent first sought to obligate to pay dues or fees under the union-security clause on or after July 1, 1994.

Charge filed by Charles Epley, an Individual; complaint alleged violation of Section 8(b)(1)(A). Parties waived their right to a hearing before an administrative law judge.

McKenzie Engineering Co. (33-CA-11408; 326 NLRB No. 50) Fort Madison, Iowa Aug. 27, 1998. The Board upheld the administrative law judge's finding that the Respondent repudiated its collective-bargaining agreement with the Union, in violation of Section 8(a)(5) and (1) of the Act. However, it declined to adopt his finding of an additional violation based on withdrawing recognition from the Union, noting that the complaint in this proceeding contained no such allegation. [HTML] [PDF]

Charge filed by Carpenters Local 410; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Fort Madison, Dec. 3-6, 1996. Adm. Law Judge William J. Pannier III issued his decision July 7, 1997.

GPS Terminal Services (4-RC-18840; 326 NLRB No. 71) Harrisburg, Pa. Aug. 27, 1998. In a decision signed by Members Fox and Liebman, with Chairman Gould concurring, the Board denied the Employer's appeal from the Regional Director's direction of an election by mail ballot. The Regional Director's rationale is consistent with the Casehandling Manual and San Diego Gas & Electric, the majority stated. Among the factors cited by the Regional Director were the scattering of employees and husbanding the Board's resources. [HTML] [PDF]

The Employer has 30 regularly scheduled employees who work day or night shifts in a 24-hour, 7-days-a-week operation. The Regional Director declined to accept the Employer's offer to call all employees to work on a single shift or a single day (two shifts) so a manual election could be held.

In his concurring opinion, Chairman Gould would find the Regional Director's reliance on the agency's budgetary constraints is a sufficient basis for directing a mail ballot election, citing his separate opinion in San Diego Gas & Electric.

Members Hurtgen and Brame dissented, pointing out that a manual election would be feasible if all employees were called to work on a single shift or a single day-as the Employer had offered to arrange. Accordingly, they would reverse the Regional Director's direction of a mail ballot election.

Standard Sheet Metal, Inc. (32-CA-15675, et al.; 326 NLRB No. 35) Fresno, Calif. August 27, 1998. The Board held that the Respondent, a nonunion contractor, unlawfully refused to hire discriminatee Fred Venglarcik as an air-conditioning installer due to his membership in a union for 10 years. It also found unlawful the respondent's one-week suspension of employee Charles Whitehead because of his support for the union. [HTML] [PDF]

Charges filed by Sheet Metal Workers Local 162; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Clovis on February 25 and 26, 1997. Adm. Law Judge Burton Litvack issued his decision September 25, 1997.

Bardon Enterprises, Inc. (21-RC-19803; 326 NLRB No. 48) Los Angeles, Calif. August 27, 1998. In a decision directing a second election, the Board adopted the hearing officer's recommendation to set aside the first election by sustaining the union's objection that the employer had threatened employees with plant closure or job loss if the union won the election and negotiations were not "beneficial" to the company. In a concurring opinion, Chairman Gould said he would adopt another recommendation by the hearing officer that the number of inaccurate addresses on the Excelsior list was sufficiently high (29 of 131 addresses or 22%) and determinative (the election was decided by a margin of seven votes) to warrant setting aside the election. [HTML] [PDF]

Triple H Fire Protection, Inc. (5-CA-26578, et al.; 326 NLRB No. 46) Baltimore, Md. August 27, 1998. The Board found that the Respondent had engaged in a number of unfair labor practices, including discharging three employees, giving the impression the employees' union activity was under surveillance, and implying that union representation attempts would be futile. It ordered the Respondent to cease and desist from discharging or otherwise discriminating against its employees and to reinstate the discharged employees with backpay. The Board remanded the case to an administrative law judge on the issue of whether a bargaining order is an appropriate remedy. [HTML] [PDF]

In ruling against the Respondent, the Board found that the Respondent's letter to the General Counsel denying "any and all accusations" does not constitute a proper answer under Section 102.20 of the Board's Rules and Regulations. In dissent, Member Hurtgen would deny the General Counsel's motion for summary judgment noting that the Respondent was not represented by counsel. He said under the circumstances he "would not wish to be overly technical in determining whether an answer was sufficient" and "would resolve reasonable doubts in favor of the pro se Respondent."

Restaurant Depot (22-RC-11507; 326 NLRB No. 47) South Hackensack, N.J. Aug. 27, 1998. In this request for review, the Board upheld the Regional Director's dismissal of a petition by Teamsters Local 418 seeking certification as the exclusive representative of all drivers employed by the Employer at its South Hackensack, New Jersey facility. The Board noted that on May 12, 1998 the Regional Director approved an informal settlement in Case 22-CA-22588 between the Employer and United Food and Commercial Workers Local 348-S, in which the employer agreed to bargain and apply the existing collective-bargaining agreement to the drivers. [HTML] [PDF]

In dissent, Members Hurtgen and Brame stated: "We recognize that the informal settlement agreement requires the Employer to cover the disputed employees under the contract with Local 348-S. However, the settlement agreement is not an adjudication or an admission that these employees are in fact under that contract. Further, the Petitioner was not a party to that settlement. And, the petition was filed before the settlement."

Carpenters District Council of New York City and Vicinity (Manufacturing Woodworkers Association of Greater New York) (2-CB-15010, 2-CE-172; 326 NLRB No. 31) New York, N.Y. Aug. 26, 1998. The issues presented are (1) whether the Respondent (Carpenters) violated Section 8(e) of the Act by entering into and maintaining the "Other Operations" and "Joint Venture" clauses (OOC and JVC) of the collective-bargaining agreement between the Carpenters and Charging Party Manufacturing Woodworkers Association (MWA), and (2) whether Carpenters also violated Section 8(b)(3) by continually rejecting the MWA's bargaining proposal to eliminate the OOC from the contract, and by instead insisting, as a condition of reaching agreement on the contract, that the MWA agree to include the OOC in it. The administrative law judge found that Carpenters violated Section 8(e) by entering into and maintaining the OOC, and violated Section 8(b)(3) by rejecting the MWA's bargaining proposal to eliminate the OOC and by instead insisting that the MWA agree to retain it. [HTML] [PDF]

First, the Board agreed with the judge's denial of Carpenters' request for deferral to arbitration the issues of whether the OOC and JVC violated Section 8(e), but for different reasons. The Board declined to defer because the 8(e) issues address the fundamental lawfulness of the clauses themselves, rather than questions about the validity of their interpretation or attempted application in particular factual circumstances.

The majority of Chairman Gould and Members Fox and Liebman disagreed with the judge's OOC findings and instead ruled that Carpenters did not violate the Act in regard to the OOC. Applying International Longshoremen's Assn. (ILA I), 447 U.S. 490 (1980), and Manganaro, 321 NLRB 158 (1996), the majority concluded that the OOC work preservation agreement was not clearly unlawful on its face under the "right of control" test, and interpreted it as requiring signatory employers to the contract to do no more than what the law allows such a clause to require them to do. Because the majority found that the OOC was not unlawful, they consequently found that Carpenters had not violated Section 8(b)(3). With regard to the JVC, the Board agreed with the judge that it violated Section 8(e) because it "had as its main purpose the satisfaction of union objectives elsewhere, not the preservation or protection of unit work, and thus was secondary in nature, attempting to influence the labor relations of nonsignatory employers in units removed from the contractual unit."

Member Hurtgen, dissenting in part, agreed with the judge that the OOC is facially invalid under 8(e), and that Carpenters violated Section 8(b)(3) by insisting, in negotiations, on agreement to this clause as a condition of reaching the agreement.

Charges filed by Manufacturing Woodworkers Association of Greater New York, Inc.; complaint alleged violation of Section 8(e) and 8(b)(3). Hearing at New York, N.Y., Feb. 2,3 and 6 and March 3, 1995. Decision issued by Adm. Law Judge Steven Davis, June 12, 1995.

Telescope Casual Furniture, Inc. (3-CA-18903, 19180; 326 NLRB No. 60) Granville, N.Y. Aug. 27, 1998. The majority of Chairman Gould and Member Hurtgen upheld the administrative law judge's finding that the Respondent did not violate Section 8(a)(5) and (1) of the Act by implementing an alternative proposal, although harsher in its terms than the Respondent's final proposal, because the alternative proposal had been proposed and discussed earlier during negotiations and were, in the words of the judge, "reasonably comprehensible," as provided in Taft Broadcasting, by Respondent's earlier proposals. Member Hurtgen writing for the majority opinion noted that "regressive bargaining is not per se unlawful. In our view, regressive bargaining is unlawful if it is for the purpose of frustrating the possibility of agreement. In the instant case, however, the Respondent used its alternative proposal to press the Union to come to an agreement. ... [T]here [was] no allegation of bad-faith bargaining on the part of the Respondent." He also noted that the Respondent offered to bargain over the alternative proposal, but the Union declined, and offered to modify its terms to make it more acceptable to the Union. "In these circumstances, we conclude that it was not unlawful for the Respondent to implement the alternative proposal after the Union rejected the prior, 'final' proposal," Member Hurtgen stated. [HTML] [PDF]

Concurring, Chairman Gould reiterated the arguments he made in White Cap, 325 NLRB No. 220 (July 24, 1998), and stated: "I do not like the employer's tactics in this case and, like Member Liebman, I do not find them to be conducive to good industrial relations. Indeed, my personal view is that impasse ... and unilateral implementation weight the scales against the labor movement improperly in a democratic pluralistic society such as ours. But, we are obliged to subordinate our personal views to the rule of law."

Dissenting, Member Liebman stated that the Respondent had "crossed the line from simply hard, tough bargaining to unlawful or bad-faith conduct by threatening to impose and then implementing its alternative position." She added that such tactics go beyond merely pressuring the Union, and "might irreparably undermine its ability to bargain. Thus, it is no response to state, as does the majority, that by attempting to club the Union into accepting its final offer, Respondent actually wished to promote agreement."

Charges filed by Electronic Workers IUE Local 36FW; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Albany, N.Y., May 1-3, 1995. Decision issued by Adm. Law Judge Joel P. Biblowitz, Aug. 11, 1995.

Detroit Newspapers Agency d/b/a Detroit Newspapers, The Detroit News, Inc., and The Detroit Free Press, Inc. (Detroit I) (7-CA-37361, et al.; 326 NLRB No. 64) Detroit, Mich. Aug. 27, 1998. A unanimous Board, substantially upholding the administrative law judge, found that the Detroit News and the Detroit Free Press engaged in unfair labor practices that caused a strike and that the strike was an unfair labor practice strike from its inception in June 1995. The Board found that the Detroit News violated Section 8(a)(5) of the Act by unilaterally implementing proposals affecting editorial employees. Specifically, Chairman Gould and Members Fox and Liebman found that the Detroit News violated the Act by refusing to provide the Newspaper Guild of Detroit Local 22 with requested information about merit pay and overtime exemption proposals. Members Hurtgen and Brame disagreed on this point but agreed that other unfair labor practices were a cause of the strike. [HTML] [PDF]

In disagreement with the judge, the Board with Member Liebman dissenting on this issue held that the Detroit Newspapers Agency (DNA) did not violate Section 8(a)(5) by departing from a tentative agreement to bargain jointly with all unions on economic issues common to all units. The Board also agreed that DNA did not violate Section 8(a)(5) by unilaterally implementing, after reaching a valid impasse, its proposal to permit the assignment of non-unit employees for work assignments traditionally performed by the Detroit Typographical Union No. 18. Over Chairman Gould's dissent, the Board granted the Unions' request to sever and reserve for future consideration the issue of whether the newspapers unlawfully failed to bargain about the terms and conditions of employment for striker replacements.

The Board ordered the Detroit News, the Detroit Free Press, and DNA to cease and desist from failing to bargain in good faith, informing strikers that they have been permanently replaced, and otherwise interfering with the employees' Section 7 rights. The Employers must reinstate all strikers who make an unconditional offer to return to work displacing replacements if necessary; provide make-whole relief; comply with unions' information requests; and post a notice to that effect.

Charges filed by Metropolitan Council of Newspaper Unions; complaints alleged violations of Section 8(a)(5) and (1). Hearing at Detroit, Mich., April 15-17, 29-30; May 1-3; June 17-19, 25, 29; July 9-11, 29-31, Aug. 1-2; Sept. 30; and Oct. 1-2, 1996. Decision issued by Adm. Law Judge Thomas R. Wilks, June 19, 1997.

Detroit Newspaper Agency d/b/a Detroit Newspapers, The Detroit News, Inc. and The Detroit Free Press, Inc. (Detroit Newspaper II) (7-CA-39522, 39595; 326 NLRB No. 65) Detroit, Mich. Aug. 27, 1998. The Board upheld the administrative law judge's finding that Respondents violated Section 8(a)(3) and (1) of the Act by failing to offer immediate reinstatement to employees who joined in the strike that commenced on July 13, 1995, and who thereafter made an unconditional offer to return to work. The judge based his finding on an earlier decision by Adm. Law Judge Thomas R. Wilks who held that the strike here was an unfair labor practice strike. For the reasons set out in the Board's opinion in Detroit Newspapers, 326 NLRB No. 64 (Aug. 27, 1998), the Board affirmed that the strike in question was an unfair labor practice strike. Consequently, the Board reviewed the judge's decision here in light of that action. The Board upheld the judge's finding that a broad cease-and-desist order was not appropriate because the violations stem from a single course of conduct by the Respondents and do not show a proclivity to violate the Act or a widespread and general disregard for Section 7 rights. Accordingly, a narrow cease-and-desist order was imposed. [HTML] [PDF]

Charges filed by Metropolitan Council of Newspaper Unions; complaints alleged violations of Section 8(a)(1) and (3). Hearing at Detroit, Sept. 8, 1997. Decision issued by Adm. Law Judge William G. Kocol, Nov. 7, 1997.

M & N Mail Service, Inc. (26-RD-1003; 326 NLRB No. 43) West Memphis, Ark. Aug. 27, 1998. By a 3-2 vote, the Board denied the Union's request for review of the Regional Director's decision to conduct an election by mail ballot, finding that the Regional Director did not abuse his discretion. Members Fox and Liebman concluded that the Regional Director's rationale for ordering a mail ballot election is consistent with the NLRB's Casehandling Manual and San Diego Gas & Electric, 325 NLRB No. 218 (July 18, 1998). Chairman Gould, concurring, agreed that a mail ballot is appropriate under San Diego Gas. He would, however, also find the Regional Director's reliance on the agency's budgetary constraints is a sufficient basis for directing a mail ballot election. Member Hurtgen and Brame, dissenting, would hold a manual election, finding the Regional Director's decision to hold a mail ballot election "rests primarily on budgetary grounds." See the dissent in San Diego Gas. [HTML] [PDF]

The Regional Director found that the employer's employees have a scattered work schedule so that if the election were confined to any given 2-workday period, five of the 34 employees (15 percent of the unit) would not be scheduled to work or be available at the Employer's premises for a manually conducted election. With respect to the parties' desires, the Regional Director noted that the Employer and the decertification Petitioner stipulated to a mail ballot election. The union (Highway and Local Motor Freight Employees Local 667) opposed a mail ballot election. The Regional Director then found that the utilization of a Board agent for manual voting, which would have to be scheduled from 4 to 8:30 a.m. and from 3 to 8 p.m. on a minimum of 2 days, would not be an efficient use of limited available Board resources.

Andel Jewelry Corp. (29-RC-8674; 326 NLRB No. 53) Long Island City, N.Y. Aug. 27, 1998. Chairman Gould and Member Liebman certified the results of an election held November 8, 1996 which showed 90 for and 142 against Service Employees Local 74, with 31 challenged ballots, an insufficient number to affect the results. In so doing, Chairman Gould and Member Liebman affirmed the hearing officer's recommendation to overrule the Union's election objections, including Objections 5, 9, and 19 insofar as they allege that the Employer made a "speech" to a "massed assembly of employees" in violation of the rule set forth in Peerless Plywood Co., 107 NLRB 427 (1953). The hearing officer found that the Employer's conduct essentially was limited to distributing a campaign leaflet and answering any employee questions that arose. With respect to the incident in the polishing department on which the dissent relies, Chairman Gould and Member Liebman agreed with the hearing officer that the Employer's answering of questions individually did not amount to a speech made to all employees collectively. [HTML] [PDF]

Member Liebman noted her agreement with the dissent in Electro-Wire Products, 242 NLRB 960 (1979), that the Board erroneously held in that case and in Associated Milk Producers, 237 NLRB 879 (1978), that the Peerless Plywood rule is not violated when an employer, on a systematic basis, meets individually with a substantial number of employees at their work stations on working time within 24 hours of the election and urges them to vote against the union. In the absence of a current Board majority to overrule Electro-Wire and Associated Milk, however, she agrees that the hearing officer correctly applied that precedent here. Chairman Gould agrees that the portion of Objections 5, 9, and 19 related to Sewell Mfg. Co., 138 NLRB 66 (1962), should be overruled for the reasons set forth in his concurring opinion in Shepherd Tissue, Inc., 326 NLRB No. 38 (Aug. 27, 1998).

Member Fox, dissenting in part, would sustain that portion of the Union's Objections 5, 9, and 19 alleging that the Employer violated Peerless Plywood and direct a second election. She would find that the Employer made an "election speech" to a "massed assembly of employees" at least in the polishing department within 24 hours of the election.

Pacific Micronesia Corp. d/b/a Dai-Ichi Hotel Saipan Beach (37-RC-3739; 326 NLRB No. 45) Saipan, Northern Mariana Islands Aug. 27, 1998. The Board denied the Employer's request for review of the Regional Director's Supplemental Decision on Challenged Ballots and Objections to Conduct of Second Election, and Certification of Representative as it raised no substantial issues warranting review. The tally of ballots for the election held on February 5, 1998 shows 131 for and 121 against the Commonwealth Labor Federation and Hotel Employees & Restaurant Employees Local 5, with 9 challenged ballots, an insufficient number to affect the results. Review was requested solely with respect to Objection 1 alleging the invalidity of the second election, Objection 2 alleging supervisory taint, Objection 3 alleging prejudicial appeals, and Objection 4 alleging that a supervisor intimidated the Employer's election observer into withdrawing and forcing the Employer to choose a substitute. Chairman Gould agrees that Objection 3, alleging that the comments attributed to Local 5's business agent in a newspaper article contained inflammatory appeals to racial prejudice under Sewell Mfg. Co., 138 NLRB 66 (1962), should be overruled for the reasons set forth in his concurring opinion in Shepherd Tissue, Inc., 326 NLRB No. 38 (Aug. 27, 1998). [HTML] [PDF]

The Dow Chemical Company (7-CA-39233; 326 NLRB No. 23) Midland, Mich. Aug. 24, 1998. The Board found, as did the administrative law judge, that DowBrands and the Respondent are not a single employer; that DowBrands, not the Respondent, made the outsourcing decision in question; and that the Respondent did not not act unlawfully by failing to follow the outsourcing provisions of article X, section 3, of its contract with Steelworkers Local 12075. The Board did not decide whether the outsourcing decision was, as the judge found, not covered by article X, section 3. The complaint alleging that the Respondent violated Section 8(a)(5) and (1) of the Act was dismissed. [HTML] [PDF]

Charge filed by Steelworkers Local 12075; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Midland on July 9, 1997. Adm. Law Judge Bruce D. Rosenstein issued his decision Oct. 1, 1997.

JAE Consulting & Development and Mudrats Underground Development Construction Co. (13-CA-34698; 326 NLRB No. 40) Bloomingdale and Glen Ellyn, Ill. Aug. 27, 1998. The Board found that the Respondents violated Section 8(a)(3) and (1) of the Act by threatening to fire employees if they continued to raise questions about their paychecks and the number of work hours that the Respondents were reporting to Operating Engineers Local 150 and if they did not falsify information to the union; and violated Section 8(a)(3) by discharging and failing to reinstate employees because of their union or other protected concerted activities. The Board found that the Respondents' answer to the complaint had been withdrawn by the terms of an April 6, 1998 settlement agreement which provided for the withdrawal of the answer in the event of noncompliance. The Board granted the Acting General Counsel's motions for summary judgment and deemed that all the allegations in the complaint are true. [HTML] [PDF]

Charges filed by Operating Engineers Local 150; complaint alleged violation of Section 8(a)(1) and (3). Acting General Counsel filed motions for summary judgment July 31, 1998.

Beverly California Corp. f/k/a Beverly Enterprises, its Operating Divisions, Regions, Wholly-Owned Subsidiaries and Individual Facilities, et al. (6-CA-20188-46, et al.; 326 NLRB No. 29 and 326 NLRB No. 30) Fort Smith, Ark. Aug. 21, 1998. In these two related cases, the Board was presented with the issue of the appropriateness of a broad nationwide cease-and-desist order and nationwide posting of the order at all of a respondent employer's facilities. In Beverly California Corp., 326 NLRB No. 29, ("Beverly II"), the Board, Chairman Gould and Members Fox and Liebman, found that the Respondent committed approximately 78 unfair labor practices at 17 facilities in nine states. In Beverly California Corp., 326 NLRB No. 30, ("Beverly III"), the Board, Chairman Gould and Members Fox and Liebman, found that the Respondent committed another approximately 28 unfair labor practices at nine facilities in six states. [326 NLRB No. 29] [TEXT] [PDF] [326 NLRB No. 30] [TEXT] [PDF]

In each case, the administrative law judge recommended that the Board issue a broad corporate-wide order. In reaching this conclusion in Beverly II, the judge considered the Respondent's extensive history of unfair labor cases including the Board's decision in Beverly California Corp., 310 NLRB 222 (1993) ("Beverly I"), in which the Board found that the Respondent had committed some 135 violations at 32 facilities, the record before him, and noted that, while Beverly I was being litigated, the unfair labor practice charges and complaint that formed the basis of both Beverly II and Beverly III were being filed and issued against the Respondent. The Beverly II judge concluded that the violations disclosed a continued corporate effort by the Respondent to become or remain union free at the expense of its employees' Section 7 rights and that the broad corporate-wide Order was appropriate. In Beverly III, the judge based his recommendation on his review of Beverly I, the record and the judge's decision in Beverly II and the record before him in Beverly III. He essentially found that the Respondent had demonstrated a proclivity to violate the Act and that the violations could not reasonably be viewed as isolated occurrences with no connection to central management.

In Beverly III, the Board adopted the judge's recommendation that a nationwide cease-and-desist order be posted at all of the Respondent's facilities. Citing J. P. Stevens & Co., the Board noted that it has the authority to issue employer-wide orders against a recidivist with a record of unfair labor practices in more than one facility and that a corporate-wide order is warranted on the basis of the respondent's record of violations committed during the total period covered by Beverly I, Beverly II, and Beverly III. [J.P. Stevens, 244 NLRB 407 (1970), enfd. 668 F.2d 767 (4th Cir. 1979), petition for cert. granted and remanded for reconsideration on other grounds, 456 U.S. 924 (1982)]. The Board noted that the violations in the three cases total approximately 240; they were committed at 54 different facilities in 18 states and include a number of differing types of coercive conduct within the meaning of Section 8(a)(1), as well as violations of Section 8(a)(3) and 8(a)(5). The Board also noted the continuing involvement of divisional or regional personnel in the commission of the unfair labor practices and the evidence of actual corporate control of labor relations in those facilities. The Board concluded that the record supports the findings that, in attempting to achieve its goal of opposing unionization, the respondent regularly engaged in brinksmanship at the expense of its employees' Section 7 rights and frequently stepped over the line into the commission of unfair labor practices, and, accordingly, a broad order with corporate-wide application is warranted.

In Beverly II, however, the Board majority, Members Fox and Liebman, reversed the judge's recommendation that a broad cease-and-desist order be posted at all of the Respondent's facilities nationwide. The majority found that inasmuch as it had granted such a broad corporate-wide order in Beverly III it was unnecessary to grant one in Beverly II. In dissent, Chairman Gould stated that he would give the same broad nationwide order in both Beverly II and Beverly III. He noted that two cases were decided the same day and that the conduct in Beverly III was simply a continuation of the same conduct present in Beverly I and Beverly III. In these circumstances, Chairman Gould saw no reason why the Board should not consider the conduct in Beverly III in deciding the appropriate remedy in Beverly II. In Beverly II, Chairman Gould also dissented with regard to the majority's finding that the Respondent violated Section 8(a)(1) when it solicited employees at its Pioneer Place facility to form and join an employee council.

Charges filed by Service Employees Local 666, Hospital and Health Care Employees District 1199P, et al.; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing in Beverly II on various dates from Nov. 12, 1991 through March 26, 1993. Adm. Law Judge Peter E. Donnelly issued his decision June 29, 1994. Hearing in Beverly III on various dates between Nov. 30, 1993 and April 27, 1994. Adm. Law Judge Lawrence W. Cullen issued his decision June 12, 1995.

Shepherd Tissue, Inc. (26-RC-7710; 326 NLRB No. 38) Memphis, Tenn. Aug. 26, 1998. The Board certified the Paperworkers International, winner of a second election held September 25 and 26, 1997 by a 222-149 vote, as the exclusive collective-bargaining representative of the Employer's production and maintenance employees. The Board affirmed the hearing officer's recommendation to overrule the Employer's objections to the election, including Objection 2, alleging that the Union promulgated "campaign propaganda deliberately calculated to overemphasize and exacerbate racial/religious tensions among employees by inflammatory appeals." The hearing officer found that the Union's campaign handbill which included a statement by a discharged unit employee concerning a sexual harasssment investigation that "black folk have been wrongly touched by whites for over 300 years" was not objectionable under Sewell Mfg. Co., 138 NLRB 66 (1962). Chairman Gould wrote a separate concurring opinion because while he agrees with the basic principles of Sewell, he does not agree with the holding in Sewell and its progeny that places the burden on the party making the racial appeal, requires that the appeal be truthful, and creates an inappropriate symmetry between unions and employers. [HTML] [PDF]

Iron Workers Local 377 (Alamillo Steel Corporation ) (20-CB-8663, et al.; 326 NLRB No. 54) San Francisco, Calif. Aug. 26, 1998. The Board agreed with the administrative law judge 's conclusion that the Respondent violated Section 8(b)(1)(A) of the Act by failing to pursue a grievance on behalf of employee Ronald W. Bryant against Alamillo Steel Corporation for allegedly refusing to accept Bryant as a referral for employment through the Union's hiring hall. The Board applied revised rules as set forth in the instant decision in fashioning a remedy. The Respondent excepted to the judge's application of Rubber Workers Local 250 (Mack-Wayne Closures), 290 NLRB 817 (1988) (Mack-Wayne II) in formulating a remedy. The Board decided that the Mack-Wayne formula "does not allocate evidentiary burdens appropriately among the parties and therefore runs the risk of imposing essentially punitive liability on the union and granting a windfall to the grievant discriminatee." [TEXT] [PDF]

Accordingly, the Board decided to bring its remedies into "greater Harmony" with the standards followed by courts adjudicating hybrid duty of fair representation/Section 301 breach of contract actions by requiring the General Counsel to establish the meritoriousness of the grievance before it will assess backpay liability against the union; and to follow the Supreme Court in limiting the union's liability in such circumstances to the portion of the employee's damages caused by the union's mishandling of the grievances. The board also modified the procedure by which it is determined whether the merits of the grievance should be litigated in the initial stage of the unfair labor practice proceedings or at the compliance stage. Thus, the presumption will be that the merits of the grievance will not be litigated and decided, if at all until the compliance stage of the proceedings, after the union has had an opportunity to attempt to resolve the grievance through the contractual procedure.

Chairman Gould, concurring in part and dissenting in part, wrote separately to express additional reasons for abandoning the Mack-Wayne formula and to set forth his view on the appropriate method of limiting the union's liability in such cases. The Chairman dissented on the procedural issue of requiring the agreement of all parties and the approval of the judge on the question of whether to litigate the merits of the grievance in the unfair labor practice hearing or at the compliance stage of the proceedings. He would leave that choice solely to the judge's discretion.

Members Hurtgen and Brame, dissenting in part, disagreed with their colleagues' decision that a full make-whole remedy for the aggrieved employee shall no longer be available to rectify the type of 8(b)(1)(A) violation which was committed by the Respondent. "Because we would adhere to the well-established Board policy of seeking full relief for the victims of unfair labor practices, we dissent from the majority's awarding 'half-a-loaf' relief to one class of unfair labor practice victims."

Charges filed by Ronald W. Bryant, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at San Francisco on June 7, 1993. Adm. Law Judge Timothy D. Nelson issued his decision Dec. 21, 1993.

Myth, Inc. d/b/a Pikes Peak Pain Program (27-CA-14384; 326 NLRB No. 28) Colorado Springs, Colo. Aug. 20, 1998. The administrative law judge dismissed complaint allegations that the Respondent violated Section 8(a)(1) of the Act because it discharged employee Kim McKeon for engaging in protected concerted activity when she filed a wage claim with the Colorado State Department of Labor. The General Counsel urged a return to Alleluia Cushion, Co., which held that the individual assertion of a work-related statutory right was presumed concerted unless proven otherwise. The judge found that under Meyers, current Board precedent, the individual filing of a wage claim was not concerted activity. The majority of Members Fox, Liebman, and Brame adopted the judge's decision without comment. [TEXT] [PDF]

Chairman Gould dissented and asserted that the Board should return to the Alleluia approach. He stated: "To read Section 7 so narrowly as to exclude individual employees who assert such important collective rights when such a reading is a matter of our policy, does a great disservice to vast numbers of employees who do not have collective bargaining representatives and who must otherwise depend on the happenstance of whether a retaliatory provision is included in the statute they assert."

Member Hurtgen, concurring, would find that an employee's filing of a state wage claim was not concerted activity, noting that Myers represents a permissible reading of the Act. He stated further: "... Myers has been on the books for 14 years, and no court has overturned it. In the interests of stability and predictability, I see no warrant for upsetting precedent, absent a compelling need to do so. There is no such need here."

Charge filed by Kim McKeon, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Denver, Feb. 6-8. 1997. Decision issued by Adm. Law Judge Clifford H. Anderson, June 16, 1997.

Silver State Disposal Service (28-CA-12361, et al.; 326 NLRB No. 25) Las Vegas, Nev. Aug. 19, 1998. The question presented here is whether the Union, Teamsters Local 631, by a contractual no-strike clause, waived the Section 7 right of the Respondent's employees to engage in a spontaneous work stoppage. The administrative law judge found, inter alia, that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating 71 employees for engaging in a work stoppage in support of employee Albert Crockett's firing and grievance. Although the judge found that the work stoppage was an unprotected activity because of a contractual no-strike clause, he found that the strike was condoned when the Respondent solicited the employees to return to work. The Board majority of Members Fox, Liebman, and Brame adopted the judge's finding that the terminations violated the Act but disagreed with the judge's rationale. Like the judge had, the majority found that the action was a strike, but decided there was no need to reach the judge's finding of employer condonation. Rather, they held that the no-strike clause only pertained to conduct involving the Union. Since the strike was spontaneous and not authorized by the Union, it was not prohibited by the no-strike clause and thus the Respondent violated the Act when it fired the strikers. [TEXT] [PDF]

In his concurrence, Chairman Gould agreed with the judge that the Respondent condoned the strike and wrote separately to address deficiencies in the criteria for protected status. He took particular issue with the Court's conclusions in Emporium Capwell, 420 U.S. 50 (1975).

In his dissent, Member Hurtgen stated that he does not believe that the issue of whether the parties intended for the no-strike clause to cover only Union-sponsored strikes was litigated, and he would not resolve that issue without giving the Respondent an opportunity to present evidence. Also, he disagreed with the judge's finding that the

Respondent's invitation to the strikers to return to work was necessarily an act of "forgiveness." He stated: "The view of the judge is contrary to reasonable industrial practice. It would require an employer to finally decide all disciplinary issues in the heat of the moment, in a parking lot, while the strike is ongoing. I do not endorse such a requirement."

Charges filed by Howard Clemons, Caesar Adamson, Bernard Peter Williams, and Albert Crockett, individuals; complaints alleged violations of Section 8(a)(3) and (1). Hearing at Las Vegas, March 14-29, 1995. Decision issued by Adm. Law Judge Clifford H. Anderson, Aug. 9, 1995.

Fitel/Lucent Technologies, Inc. (10-CA-29626; 326 NLRB No. 11) Carrollton, Ga. Aug. 13, 1998. The administrative law judge found, with Board affirmance, that the Respondent violated Section 8(a)(1) of the Act by threatening to discipline employee Keith Horsley because of his union activities and by creating an impression of surveillance by telling Horsley that management would "have to keep an eye on him," and violated Section 8(a)(3) and (1) by discharging Horsley for his union activities. The judge also found, with Board approval, that the Respondent violated Section 8(a)(4) and (1) by threatening to write up and discipline employee Joel Snyder for seeking time off to attend a Board hearing pursuant to a subpoena. Member Hurtgen did not pass on whether the Respondent's conduct toward Snyder also violated Section 8(a)(4). The Board denied the Respondent's motion to Supplement the Record with a disciplinary report it did not introduce at the hearing. [HTML] [PDF]

Charge filed by Communications Workers Local 3218; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Atlanta, June 16, 1997. Decision issued by Adm. Law Judge Robert C. Batson, Feb. 9, 1998.

Diamond Walnut Growers, Inc. (32-CA-13479, 32-RC-3553; 326 NLRB No. 4) Stockton, Calif. Aug. 7, 1998. On remand from the U.S. Circuit Court of Appeals for the District of Columbia, a Board majority consisting of Chairman Gould and Member Fox, set aside a 1993 second election which Teamsters Local 601 lost. The majority set aside the election because Diamond Walnut committed a "serious" unfair labor practice by assigning returning striker Alfonsina Munoz to a lower-paying job during the "critical period" two weeks before the election. Member Fox noted that Munoz's job reassignment from forklift operator to walnut cracker and inspector was "notorious, manifest to all employees in one of [Diamond Walnut's] most populous departments." She found no basis for applying the exception in the Dal-Tex rule, 137 NLRB 1782 (1962), stating that "this is not a case where it is `virtually impossible' to conclude that the discriminatory preelection job assignment ... could have adversely affected the election results." Member Hurtgen agreed with Member Fox that the fact that the election was manual and not by mail ballot was not a reason for nullifying the election, stating that here "there is no basis for saying that a mail ballot is essential for striker participation in the election." A third election was ordered. [HTML] [PDF]

Chairman Gould, concurred with the result but dissented in part. He wrote separately "to emphasize my view that another, even more substantial basis exists for holding a third election." He finds that the Regional Director's refusal to conduct the second election by mail ballot amounted to "an abuse of administrative discretion" and precluded the possibility of a fair election for eligible unit voters who were engaged in a protected strike against Diamond Walnut. "I would honor the statutory policies which, consistent with the values of our democratic system of government in the United States, promote enfranchisement for all employees," the Chairman said.

Member Hurtgen, dissenting in part, does not agree that the single unfair labor practice warrants setting aside the election. "My colleagues apply an essentially per se rule that unfair labor practices committed during the critical period will result in the overturning of the election," he said.

Midwest Canvas Corp. (13-RC-19352; 326 NLRB No. 12) Chicago, Ill. Aug. 14, 1998. Chairman Gould and Member Liebman remanded the case to the Regional Director for a hearing concerning the eligibility of the 19 employees the Petitioner alleges were terminated or quit, and to determine whether the number of eligible voters possibly excluded from voting as a result of the opening of the polls 20 minutes late proved determinative of the results of the election. See Jobbers Meat Packing Co., 252 NLRB 41 (1980), as reaffirmed in Celotex Corp., 266 NLRB 802, 803 (1983), and more recently in Wolverine Dispatch, Inc., 321 NLRB 796 (1996). Member Brame dissenting, would sustain the Intervenor's Objection 1 and set aside the election based on the late opening of the polls and the possible disenfranchisement of voters. Member Brame, in finding that his colleagues have misapplied precedent, said that "Wolverine Dispatch and the precedent it cites do not contemplate a hearing of the kind directed." *** "In short, the Board has previously rejected the mathematical and mechanical approach taken by the majority here." [HTML] [PDF]

The tally of ballots for the election held on October 3, 1997 shows 76 for the Petitioner (Manufacturing, Production & Service Workers Local #24), and 36 for the Intervenor (Production Workers Local 707) with 11 challenged ballots, an insufficient number to affect the results. The Regional Director recommended sustaining Objection 1 on the grounds that the late opening of the polls deviated from the election procedure and created doubt and uncertainty which warranted setting aside the election. She found that it was impossible to determine whether the late start affected the results of the election.

In its exceptions, the Petitioner contended that the late opening of the polls did not warrant setting aside the election because the number of eligible employees who did not vote was insufficient to change the results. The Petitioner claimed that it sought to introduce evidence to the Regional Director which showed that the number of eligible voters was less than what was reported on the Excelsior list, and that when the ineligible employees are removed from the list, the number of possibly disenfranchised employees is not determinative of the election results. At a minimum, the Petitioner argued that the Regional Director should have ordered a hearing to determine whether any of the 19 employees were eligible voters. Chairman Gould and Member Liebman found merit in the Petitioner's exceptions. They wrote: "In order to determine whether the number of possibly disenfranchised employees is sufficient to be determinative, we must know how many eligible voters there were in the unit. Thus, evidence is required concerning the eligibility status of the 19 employees alleged by the Petitioner to be ineligible voters."

Machinists District 15 (Hudson General Corp.) (29-CD-460; 326 NLRB No. 15) Great Neck, N.Y. Aug. 14, 1998. Relying on the Employer's past general practice of assigning mail handling work to employees represented by District 15, achievement of efficiency and economy in the Employer's operation, and the Employer's preference that the work in dispute be assigned to employees represented by Machinists District 15, Chairman Gould and Member Hurtgen awarded the sorting and transportation of mail performed by Hudson General Corp. for Delta Airlines at LaGuardia Airport, to Hudson's employees represented by District 15. Member Liebman, dissenting, would find that the Employer's preference, to assign the disputed work to employees represented by District 15 is not supported by the factors of past practice or efficiency of operations. She would award the work to employees represented by Teamsters Local 851 based on the Employer's assignment of the work to those employees and the superior skills and training of the Local 851-represented employees. [HTML] [PDF]

G & T Terminal Packaging Co., Inc., et al. (2-CA-26738, et al.; 326 NLRB No. 19) New York, N.Y. Aug. 20, 1998. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5), (3), and (1) of the Act in several respects, including refusing to sign a contract it reached with Teamsters Local 813 on June 10, 1994; discriminatorily discharging almost all of its employees on April 17, 1995 and refusing to reemploy them; and unilaterally subcontracting or transferring its potato packaging operations on April 17, 1995. Finding merit to the General Counsel's exception, the Board held that the Respondent's termination and transfer of its potato packaging operations violated Section 8(a)(3) and (1) as well as Section 8(a)(5) and (1). In light of the conclusion that the discontinuance of the potato packaging operations violated Section 8(a)(3), Member Hurtgen found it unnecessary to pass on whether that conduct violated Section 8(a)(5). [HTML] [PDF]

The Board agreed with the judge that the Respondent must comply with the backpay specification pursuant to its unpublished Order in Case 2-CA-26738 and make whole the Union's Welfare and Pension Funds for the amounts that it unlawfully withheld; that a broad order is warranted to remedy the Respondent's widespread violations of Section 8(a)(5) and (3) thereby demonstrating a general disregard for the employees' fundamental statutory rights; and that a restoration remedy is appropriate.

The judge recommended that the Union be allowed to set the commencement date of the 3-year term of the agreed-upon June 10, 1994 contract at any time from June 10, 1994, until the time of the Respondent's compliance. Members Fox and Hurtgen disagreed, noting that the parties agreed to a fixed term retroactive from October 1, 1992, and running until September 30, 1995, with automatic renewal from year-to-year thereafter in the absence of reopening. In contrast to Ben Franklin National Bank, 278 NLRB 986 fn. 3 (1986), Members Fox and Hurtgen gave "full play" to the entire contract, including the rollover provision. Accordingly, they ordered the Respondent to execute the contract through September 30, 1995, and that the Union have the rollover option (as set forth in the contract) from year-to-year thereafter. Chairman Gould, dissenting in part, would order the Respondent, as the Board did in Ben Franklin, to sign the June 10, 1994 agreement at the request of the Union or, absent such request, bargain in good faith with the Union, on request, with respect to the terms and conditions of a contract and, if an agreement is reached, embody it in a signed agreement. See also Worrell Newspapers, Inc., 232 NLRB 402 (1977).

Charges filed by Teamsters Local 813 and Denny Lopez, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at New York on various days from Dec.4, 1995 to March 15, 1996. Adm. Law Judge Raymond P. Green issued his decision Sept. 9, 1996.

CalMat Company (21-CA-31793; 326 NLRB No. 21) San Diego, Calif. Aug. 20, 1998. The Board affirmed the administrative law judge's decision that the Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging Rodney Andrews and taking other disciplinary action against William Pace because they participated in a strike, picketing, or engaged in other protected concerted activity. The complaint was dismissed. The judge concluded that the Respondent acted in good faith in evaluating the employees' alleged strike misconduct and in imposing its discipline. The evidence showed that Pace carried a collapsible baton on the picket line and uttered threats of physical harm to security guards. Andrews deliberately placed himself in front of a truck exiting the Respondent's premises as he was picketing and twice attempted to assault the truck driver and damage the truck. The judge found that the vehicle did not strike Andrews as he claimed. [HTML] [PDF]

Charge filed by Teamsters Local 36; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Diego, Dec.15-16, 1997. Adm. Law Judge Gerald A. Wacknov issued his decision Feb. 11, 1998.

Charles Zanetis and Shayne L. Zanetis d/b/a Quality Hotel (9-CA-30145; 326 NLRB No. 22) Louisville, Ky. Aug. 19, 1998. Affirming the administrative law judge's supplemental decision, the Board ordered the Respondent to make whole ten individuals by paying them amounts totaling $37,485. Although served notice of the hearing to determine interim earnings of the discriminatees and the net backpay liability, the Respondent did not appear. The judge granted the General Counsel's motion for a bench decision and issued an Order that the Respondent make whole the discriminatees by paying them the amounts set forth in the specification. The Board found without merit the Respondent's contention that a new hearing should be held. The Regional Director issued the compliance specification and notice of hearing after a controversy arose over the amount of backpay due under the terms of the Board's decision and order (313 NLRB 1119), as enforced by the U.S. Court of Appeals for the Sixth Circuiit (No. 94-6425 (unpublished)). On May 30, 1997, the Board issued a supplemental decision and order (323 NLRB 154) denying the General Counsel's initial motion for summary judgment and granting the General Counsel's motion for partial summary judgment, except with regard to the allegations concerning the amounts of interim earnings and the motion to strike portions of the Respondent's answer. [HTML] [PDF]

G. M. Mechanical, Incorporated (8-CA-28494, 28689 (formerly 9-CA-34163); 326 NLRB No. 13) Covington, Ohio Aug. 11, 1998. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging David Mains, Terry Matthews, and Randy Gombos; and violated Section 8(a)(1) by coercively informing Mains that he had been discharged for engaging in protected union activity. Member Hurtgen did not pass on whether Matthews' discharge violated Section 8(a)(3). The judge credited Matthews' testimony that he was told that he was discharged for refusing to sign an independent contractor agreement. He also found that Matthews and Mains picketed the Respondent's main entrance carrying signs bearing the legend "Sheet Metal Workers Local 33 Protests Against Substandard Wages," and that Supervisor Neuman asked why they were picketing and Mains told him they were protesting the independent contractor requirement and low wages. [HTML] [PDF]

In agreeing with the judge that Matthews' discharge violated Section 8(a)(3) and (1), Members Fox and Brame pointed out that "Matthews and Mains linked the resistance to the independent contractor requirement with the concerted union activity of picketing the Respondent's main entrance and the Respondent was aware of the linkage." Member Hurtgen noted the lack of evidence that Matthews' refusal to sign the independent contractor agreement was sponsored or encouraged by the Union. However, Member Hurtgen would find the discharge violated Section 8(a)(1) because he agrees that the refusal to sign the independent contractor agreement was linked to concerted activity of other employees, and that such refusal was protected by Section 7.

Charges filed by Sheet Metal Workers Local 33; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Stubenville on May 13, 1997. Adm. Law Judge Robert T. Wallace issued his decision Feb. 5, 1998.

Odebrecht Contractors of Florida, Inc. (12-RC-8164; 326 NLRB No. 8) Coral Gables, Fla. Aug. 10, 1998. The majority, Members Fox and Liebman with Chairman Gould concurring, denied the Employer's request for special permission to appeal the Regional Director's decision to conduct a mail ballot election. (The Petitioner here is Operating Engineers Local 487.) Contrary to the Employer's contention, the majority found that there was nothing improper in the Regional Director's notification of the parties by letter because there is no requirement that the Regional Director's decision to conduct a mail ballot election be contained in the Decision and Direction of Election. Members Fox and Liebman however stated that, like dissenting Member Hurtgen, they are "troubled" by the Regional Director's "failure to articulate her rationale for conducting the election by mail ballot, and we cannot in these circumstances defer to [her] decision. Nevertheless, we disagree with our dissenting colleague's proposition that the Board cannot decide this issue unless it knows the bases for the Regional Director's decision." They said that although the Board has the option of remanding the decision to the Regional Director, "under the circumstances of this case, we find that the record before us is sufficient for us to decide this issue, and we find that a mail ballot is appropriate," citing San Diego Gas & Electric, 325 NLRB No. 218 (July 21, 1998). [HTML] [PDF]

Concurring, Chairman Gould stated that he is "not troubled by the Regional Director's failure to articulate the basis for her decision" because it is within the Regional Director's discretion to determine election procedure. "In my view, once the election procedure has been set, the party seeking to alter the procedure has the burden of demonstrating that the Regional Director abused his or her discretion," the Chairman, stated. Here, he said, the Employer failed to meet this burden.

Member Hurtgen, dissenting, would grant the Employer's request for review because the Regional Director failed to set forth her rationale for holding a mail ballot election. At minimum, he stated, the Regional Director should set forth the facts and rationale for conducting a mail ballot election so that the parties "can intelligently argue, before the Board, that the Regional Director was correct/incorrect." He stated further that "the Board cannot intelligently decide this issue unless it knows the bases for the Regional Director's decision," particularly where, as here, "the decisionmakers in Washington are not sure of the relevant facts."

Casa Italiana Language School (5-RC-14348; 326 NLRB No. 14) Washington, D.C. Aug. 11, 1998. Contrary to the Regional Director, the Board concluded that the NLRB has jurisdiction over the Employer because "[t]he purpose of the school is not the promulgation of the Roman Catholic faith but the provision of Italian language instruction on a nondenominational and commercial basis." The Regional Director found that under Catholic Bishop, 440 U.S. 490 (1979), asserting jurisdiction over the Employer (or the school) would inextricably intertwine the Board in church matters that do not impact commerce within the meaning of the Act. The issue here, the Board determined, falls most appropriately under the line of cases where the Board has historically and routinely asserted jurisdiction over retail operations operated by religious institutions. Thus, the petition filed by Washington Italian Teachers Association was reinstated and remanded to the Regional Director for appropriate action. [HTML] [PDF]

Renco Electronics, Inc. (29-RC-8705; 325 NLRB No. 222) Deer Park, N.Y. July 28, 1998. The Board considered the Employer's objections to a second election held June 27, 1997 where the tally of ballots shows 108 for and 100 against the Petitioner, United Food and Commercial Workers Local 888, with 6 challenged ballots, an insufficient number to affect the results. In pertinent part, the majority overruled the part of Objection 2 that alleges that the Board's interpreter interfered with the election by threatening employees with fines and imprisonment if they interfered with him. They disagreed with the Regional Director's refusal to consider the testimony of three other witnesses proffered by the Employer in a July 18 letter. Specifically, the majority found that this additional evidence was sufficiently related to the issue of the Board election interpreter's conduct which was timely raised by the Employer in its original objections. The majority remanded the case to the Regional Director to conduct a hearing to resolve issues relating to Objection 2. [TEXT] [PDF]

Dissenting, Chairman Gould would affirm the Regional Director's decision that the additional evidence proffered by the Employer on July 18 was untimely and should not be considered in determining the merits of allegations of misconduct by the Board's agent.

Transportation Workers International and its Local 525 (Johnson Controls World Services, Inc.) (12-CB-3801; 326 NLRB No. 3) New York, N.Y. and Cocoa Beach, Fla. July 31, 1998. The Board held that where, as here, a union terminates, even lawfully, a unit employee's membership for a reason other than failure to tender dues and fees, the union thereafter is precluded from insisting, under the terms of a union-security clause, that the employee remit dues and fees to it as a condition of continued employment. The Board found that its conclusion "is required" by proviso (B) to Section 8(a)(3) of the Act which prohibits an employer from discriminating against employees for nonmemberhip if it has reasonable grounds for believing that membership was "denied or terminated for reasons other than the failure of the employee to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership." Member Hurtgen views this position as a reasonable interpretation of the Act. He does not reach the issue of whether it is required by the Act. [HTML] [PDF]

The Board clarified Boilermakers (Kaiser Cement Corp.), 312 NLRB 218 (1993), to the extent that it can be read to protect union efforts to invoke union-security provisions against individuals whom it has denied or expelled from membership, noting that in upholding the Board's decision, the court of appeals specifically distinguished cases that involved denial of membership or expulsion. Enfd. sub nom. Gilbert v. NLRB, 56 F.3d 1438 (D.C. Cir. 1995), cert. denied 116 S.Ct. 1261 (1996). Chairman Gould agrees with the finding in Steelworkers Local 4186 (McGraw Edison Co.), 181 NLRB 992 (1970), that the Union violated Section 8(b)(1)(A) by threatening to invoke a union-security clause to enforce the payment of dues from an employee whose union membership was "significantly impaired" rather than completely terminated as punishment for engaging in protected Section 7 activity. He would overrule Kaiser to the extent that it can read as overruling McGraw Edison.

Turning the to the instant case, the Board found that Transportation Workers Local 525 violated Section 8(b)(1)(A) by threatening Douglas Nelson with discharge unless he continued to pay membership dues or agency fees in circumstances where the Union previously had permanently expelled him from membership for protected decertification activities; and that the International Union is liable with Local 525 for the violation found. The Board wrote:

Charge filed by Douglas J. Nelson, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing held November 7, 1994. Decision issued by Adm. Law Judge William N. Cates, May 12, 1995.

Operating Engineers Local 68 (Ogden Allied Eastern States Maintenance Corp.) (22-CB-5957; 326 NLRB No. 1) West Caldwell, N.J. July 31, 1998. The Board upheld the administrative law judge's findings that discriminatee Allen Saitta did not incur a willful loss of earnings by rejecting certain offers of interim employment during the backpay period, and ordered the Respondent to pay Saitta net backpay in the amount of $161,918.49 and to pay $15,200 to the Union's pension and annuity funds on his behalf. In so doing, the Board found no inconsistency between its analysis of Saitta's rejection of the offers at issue here and Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), on which the Respondent relied in exceptions. The Board's decision in the underlying unfair labor practice proceeding is reported at 306 NLRB 545 (1992). In that decision, the Board affirmed the judge's finding that the Respondent unlawfully caused the discharge of Saitta from his job with Ogden Allied Maintenance Corporation on September 14, 1988. The Board found that Ogden, named in the complaint as a corespondent, had no knowledge of or liability for the Union's unlawful conduct. [HTML] [PDF]

Hearing at Newark, Nov. 6-7, 1995 and March 4, 1996. Adm. Law Judge James F. Morton issued his supplemental decision May 13, 1996.

Bedding Discount Centers, Inc. (29-CA-20194; 326 NLRB No. 5) Bethpage, N.Y. July 31, 1998. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) of the Act by discharging Lon Jarrell Jr. because of his activities for Retail Wholesale Employees Local 305. The Board modified the judge's recommended Order to require that the Respondent mail a copy of the Board's remedial notice to all employees working in its stores on and after the date of Jarrell's discharge, noting that only one sales employee works at each of the Respondent's stores and the complaint for which the Respondent discharged Jarrell was mailed to all stores. [HTML] [PDF]

Charge filed by Lon Jarrell Jr., an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn on Feb. 24, 1997. Adm. Law Judge Steven Davis issued his decision Sept. 26, 1997.

H & N Fish Company (20-CA-27483; 326 NLRB No. 6) San Francisco, Calif. Aug. 6, 1998. The Board, agreeing with the administrative law judge's finding that employee Alyse Ceirante would have been discharged even absent her union and other protected activity, dismissed the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act. The judge credited the testimony of Operations Manager Kurt Jacobsen that he based his decision to terminate Ceirante on what he viewed as her cumulative poor performance during her introductory period, as well as complaints from colleagues and a supplier. [HTML] [PDF]

Charge filed by Food & Commercial Workers Local 101; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Francisco, Oct. 16, 17, 23, and 24, 1997. Adm. Law Judge Jay R. Pollack issued his decision Feb. 3, 1998.

Bear Truss, Inc. (7-RC-21097; 325 NLRB No. 216) Alma, Mich. July 23, 1998. The Board considered an objection regarding an election where the revised tally showed 67 for, and 69 against, the Petitioner (Interiors Systems Local 1045, Carpenters). The majority agreed with the hearing officer's finding that the election should not be set aside because the Excelsior list provided by the Employer contained 10 inaccurate addresses out of approximately 142 eligible voters. Contrary to their dissenting colleague, the majority concluded that the Employer substantially complied with the Excelsior requirements. They emphasized that "it is important to the holding of fair elections that employers supply the unions with timely, complete and accurate information on Excelsior lists." Here, the majority noted there was no evidence that the illegible names and incorrect addresses were due to intentional misconduct or bad faith on the part of the Employer. [TEXT] [PDF]

Dissenting, Chairman Gould finds that "the illegible and inaccurate eligibility list faxed by the Employer was objectionable where, as here, the election was decided by a close margin and the inaccuracies may have compromised the Petitioner's ability to communicate with a determinative number of voters, thus "depriv[ing] those employees of the ability to cast a free and reasoned vote."

Simon DeBartelo Group a/w M.S. Management Associates, Inc. (29-CA-19758; 325 NLRB No. 217) Lake Grove, N.Y. July 22, 1998. The majority reversed the administrative law judge's finding that the Respondent was not a successor employer to General Growth and was, therefore, not obligated to bargain with the Union as the representative of its air-conditioning and heating service and maintenance (HVAC) employees. Contrary to the judge, they concluded that there exists the requisite substantial continuity in the employing enterprise and that successorship has not been defeated by the fact that the Respondent took over only the HVAC portion of General Growth's operations. In addition, the majority found continuity in the work force because General Growth formerly employed all of the employees in the Respondent's HVAC unit. Accordingly, they concluded that the Respondent is a successor employer with the attendant obligation to recognize and bargain with the Union on request. The majority also found that the Union's Dec. 27, 1995 demand, although not repeated after that date, operated as a continuing demand to represent and bargain collectively with the Respondent for the unit employees. Also, they noted that when the Respondent hired the four HVAC employees on Dec. 28, it acquired a substantial and representative complement of employees. Thus, the majority found that the Respondent's refusal to recognize and bargain with the Union on or after Dec. 28 violated Section 8(a)(5) and (1) of the Act. [TEXT] [PDF]

Dissenting, Member Hurtgen agrees with the judge that the Respondent is not a Burns successor to General Growth and thus, did not violate Section 8(a)(5) and (1) by refusing to recognize the Union as the representative of the HVAC unit. He agreed with the judge that, based on the substantial diminution of the General-Union unit, successorship had not been established. Member Hurtgen also relied on the fact that there had been a significant structural change from the General unit and that "the only portion that remains under the Respondent's employ is the small, functionally discrete group of HVAC employees who had never interacted with the other General unit employees."

Charge filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Brooklyn, N.Y., Aug. 19, 1996. Decision issued by Adm. Law Judge Howard Edelman, Feb. 11, 1997.

White Cap, Inc. (13-CA-33033; 325 NLRB No. 220) Chicago, Ill. July 24, 1998. Chairman Gould and Member Liebman agreed with Member Hurtgen that the administrative law judge erred in finding that the Respondent violated Section 8(a)(5) and (1) of the Act by imposing an unreasonable time limit for union ratification of the Respondent's proposed collective-bargaining agreement, and by threatening to withdraw certain contract proposals unless the Union met the ratification deadline. Addressing this issue, Member Hurtgen stated that in assessing the Respondent's "overall conduct," there can be "no doubt that the Respondent engaged in good-faith bargaining," and that the Respondent "did indeed have 'good cause' for threatening to withdraw" certain contract proposals unless the Union met the Respondent's ratification deadline. Member Hurtgen also disagreed with the judge's findings that the Respondent violated Section 8(a)(5) and (1) by engaging in regressive bargaining, and by withdrawing contract proposals when the parties resumed negotiations, by unilaterally implementing its final proposal in the absence of an impasse, and by thereafter locking out unit employees. [TEXT] [PDF]

Chairman Gould agreed with Member Hurtgen's conclusion but wrote separately "to stress the tough and sometimes distasteful tactics" that are lawful under the Act. He disagreed with Member Hurtgen's discussion of the issue of "regressive bargaining." Chairman Gould stated: "... [T]his case clearly indicates the compatibility of the Respondent's simultaneous possession of a clear intention to reach an agreement with the Union and the wielding of harsh regressive tactics against the Union. *** The applicable standard here must be only whether the Respondent's tactics provided full scope for good-faith bargaining" and since that test was met, "we must find that the Employer was bargaining in good-faith. *** I would further hold that regressive bargaining in the absence of an intent to evade bargaining, is a fully lawful bargaining tactic under Section 8(d) of the Act, and would overrule any prior cases holding otherwise," he stated.

Member Liebman, concurring in part and dissenting in part, agreed with Member Hurtgen's finding that the Respondent did not bargain in bad faith. However, contrary to her colleagues, she finds that the Respondent unlawfully refused to negotiate with the Union about two mandatory subjects of bargaining. Citing NLRB v. Katz, 369 U.S. 736 (1962), Member Liebman also found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union about the elimination of COLAs and voluntary overtime, and again violated Section 8(a)(1) and (5) when it unilaterally implemented a contract proposal in the absence of a valid impasse.

Charges filed by Graphic Communications Local 459-3M; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Chicago, July 31, Aug. 1-2, and Oct. 7-10, 1996. Decision issued by Adm. Law Judge Leonard M. Wagman, April 15, 1997.

Best Western City View Motor Inn (29-RC-8643; 325 NLRB No. 215) Long Island, N.Y. July 27, 1998. In reviewing objections to an election and the hearing officer's recommendations, a Board majority consisting of Chairman Gould and Members Fox, Liebman, and Brame outlined the circumstances in which contempt proceedings should be instituted in the event of noncompliance with an enforced ex rel subpoena. (The tally of ballots shows 16 for and 4 against the Petitioner, New York Hotel and Motel Trades Council, with 7 challenged ballots, an insufficient number to affect the results.) In discussing Section 102.31(d) of the Board's Rules and Regulations, the majority stated: [TEXT] [PDF]

"Although these regulations do not expressly set out the procedure for initiating subpoena enforcement contempt proceedings, we find that it will effectuate the policies of the Act to follow the same rule applicable to the Board's institution of subpoena enforcement proceedings. Accordingly, upon the request of the party on behalf a subpoena was issued and enforcement proceedings were instituted, the Regional Director must initiate contempt proceedings in U.S. district court upon noncompliance with an enforced subpoena, unless contempt proceedings would be inconsistent with law and the policies of the Act. *** However, contempt, like subpoena enforcement, proceedings need not be instituted by the Regional Director absent a request by the party on whose behalf the subpoena was issued; the Regional Director is under no obligation to institute contempt proceedings sua sponte. In any event, a party itself is not obligated to institute contempt proceedings in court. Its only procedural obligation is to request the Regional Director to initiate such proceedings. We therefore do not adopt the hearing officer's finding that the Employer had the burden of instituting contempt proceedings in court against [subpoenaed employee-witness] Shah [who failed to appear at the hearing], and we do not adopt the hearing officer's drawing of an adverse inference against the Employer for its failure to institute such proceedings."

The majority remanded the proceeding to the Regional Director for preparation of a supplemental decision concerning the proof of service of the subpoena allegedly served on employee-witness Satrap Khan and for further proceedings deemed appropriate.

Dissenting, in part, Member Hurtgen concluded that the Board has the responsibility of seeking compliance with a court order enforcing a subpoena, and that it need not wait for a request from a private party on whose behalf the Board sought the court order.

Peppermill Hotel Casino, Inc. d/b/a Peppermill Hotel Casino and Rainbow Casino (32-CA-16144, 16214 and 32-RC-4285; 325 NLRB No. 223) Wendover, Nev. July 29, 1998. The Board affirmed the administrative law judge's conclusions that the Respondent violated Section 8(a)(3) of the Act by issuing a negative evaluation to Reggie Martin because of his organizing activities for Operating Engineers Local 3; and violated Section 8(a)(1) by interrogating and threatening employees, creating the impression of surveillance of employees' union activities; and offering better jobs or increased pay to employees if they voted against union representation. The judge found, with Board approval, that certain misconduct interfered with the election held May 30, 1997, i.e., interrogating two employees regarding how they intended to vote and impliedly promising improved benefits if they voted against union representation. Unlike the judge, the Board said that it did not presume that evidence of this type of objectionable conduct was disseminated. It noted, as did the judge, that the outcome of the election, a 12-12 tie, could have been influenced by a change in either employee's vote alone. The Board set aside the election and remanded Case 32-RC-4285 to the Regional Director to conduct a second election. [TEXT] [PDF]

Charges filed by Operating Engineers Local 3; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Reno on Oct. 23, 1997. Adm. Law Judge James M. Kennedy issued his decision May 5, 1998.

Linda Lewis and Roger Weekly, Individually and as a Partnership, d/b/a Iron Griddle Restaurant (6-CA-28767; 325 NLRB No. 221) Waynesburg, Pa. July 29, 1998. The administrative law judge found that the Respondent violated Section 8(a)(1) of the Act by discharging Lynette Ferrari for engaging in protected concerted activity. The judge specifically discredited Employer Lewis' testimony that she discharged Ferrari for insubordination, and noted that Ferrari's alleged insubordination was not advanced by Lewis at Ferrari's unemployment compensation hearing "because it [the alleged act of insubordination] did not happen." The majority noted that the insubordination defense was indeed raised at the unemployment compensation hearing and remanded the case to the judge to reconsider his credibility determinations and to prepare a supplemental decision in light of the erroneous basis he asserted for discrediting Lewis' testimony. [TEXT] [PDF]

Dissenting, Chairman Gould, found it unnecessary and a waste of agency resources to remand the case to the judge because "[e]ven assuming that one of the reasons for the judge's discrediting of Linda Lewis was erroneous, I find the judge had sufficient, correct, and independent reasons for his credibility resolution."

Charge filed by Lynette Ferrari, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Waynesburg, Aug. 5, 1997. Decision issued by Adm. Law Judge James L. Rose, Oct. 16, 1997.

FlorStar Sales, Inc. (7-CA-38599, 7-CA-39070; 325 NLRB No. 224) Livonia, Mich. July 30, 1998. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) of the Act by, inter alia, soliciting grievances from employees during a union campaign, coercively interrogating employees about union activities, threatening employees with job loss if the Union were successful, coercively soliciting written statements from employees about other employees, and removing and replacing Timothy Linstrom as warehouse manager because he failed to prevent unionization. Allegations that the Respondent violated Section 8(a)(1) and (3) by discharging union organizer Darryl Lindquist were dismissed by the judge and upheld by the Board. [TEXT] [PDF]

Charges filed by Darryl Lindquist and Timothy Linstrom, (individuals), and Teamsters Local 337; complaints alleged violations of Section 8(a)(1) and (3). Hearing at Detroit, Dec. 16-18, 1997. Decision issued by Adm. Law Judge Karl H. Buschmann, Nov. 28, 1997.

San Diego Gas and Electric (21-RC-19862; 325 NLRB No. 218) San Diego, Calif. July 21, 1998. By a 3-2 vote, a Board majority, consisting of Members Fox and Liebman with Chairman Gould concurring, approved an Acting Regional Director's decision to conduct an election by mail ballot where the 20 unit employees worked at eight different locations spread across more than 80 miles. (The election in which unit members voted on whether to be represented by the Electrical Workers IBEW was conducted by mail and the ballots impounded pending resolution of this proceeding.) In so holding, the majority abandoned the standard set forth in the Board's Casehandling Manual that "the use of mail balloting, at least in situations where any party is not agreeable to the use of mail ballots, should be limited to those circumstances that clearly indicate the infeasibility of a manual election." Noting that the Manual has not been revised since 1989 and does not reflect Board decisions issued since that date, the majority stated that "this has resulted in some confusion as to when it is appropriate to use mail ballots." Members Fox and Liebman set forth the following guidelines clarifying the circumstances under which it is within the Regional Director's discretion to direct the use of mail ballots: (1) where eligible voters are "scattered" because of their job duties over a wide geographic area; (2) where eligible voters are "scattered" because of their work schedules; and (3) where there is a strike, a lockout, or picketing in progress. [TEXT] [PDF]

Chairman Gould, concurring, agreed with his colleagues' affirmation of the Acting Regional Director's decision to hold a mail ballot election, and joined in the abandonment of the "infeasibility" standard and the guidelines in keeping with the Board's decisions. However, he would not limit mail ballot elections to the circumstances set forth by Members Fox and Liebman. He stated: " I would find the use of mail ballots appropriate in all situations where the prevailing conditions are such that they are necessary to conserve Agency resources and/or enfranchise employees. My colleagues in the majority state that Regional Directors should not direct mail ballot elections based solely on budgetary concerns. *** I also reject the dissent's contention that an increased use of mail ballots will diminish the integrity of Board elections, decrease employee participation or effectively silence the employer's voice in the election campaign."

Dissenting, Members Hurtgen and Brame characterized the majority's decision as a "misdirection" and would order that a manual election be held. They stated: "We believe that this direction is contrary to the finest traditions of the Board, and is fraught with peril. *** Although the Manual provisions do not have the binding force of law, they nonetheless reflect the Board's historical wisdom in favor of manual elections. That wisdom has its roots in the fundamental purpose of the Act--to provide for workplace democracy in which employees can select or reject a union as bargaining representative. At bottom, our difference with our colleagues is that we believe that manual elections, as compared to mail ballot elections, are far more likely to achieve that goal. We would therefore generally restrict mail ballot elections to those limited situations mentioned in the Manual."

The Mount Sinai Hospital (2-RC-21684; 325 NLRB No. 214) New York, N.Y. July 20, 1998. Chairman Gould and Member Liebman found, contrary to the hearing officer, that senior cardiac catherization specialist, Ana Gonzalez' evaluation of probationary employee Wilfredo Gaerlan is insufficient to establish that Gonzalez is a statutory supervisor. The majority, agreeing with the hearing officer that Gonzalez' assignment of work to employees in emergency situations and her other duties are not sufficient to establish supervisory status, overruled the challenge to Gonzalez' ballot and remanded the case to the Regional Director to open and count the ballot and for further appropriate action. Member Hurtgen, dissenting, found that Gonzalez is a supervisor based on her authority to undertake competency evaluations and her use of independent judgment in assigning work to employees. Accordingly, Member Hurtgen would sustain the challenge to Gonzalez' ballot and certify the results of the May 23, 1996 election which showed 5 for and 5 against 1199 National Health and Human Services Employees Union. [TEXT] [PDF]

Space Mark, Inc. (19-RC-13442; 325 NLRB No. 213) Colorado Springs, Colo. July 21, 1998. The Board directed the Regional Director to open and count the ballots of Charles Jones Jr. and Dewayne Claar and to issue a revised tally of ballots and the appropriate certification. The Employer provides maintenance services at the former U.S. Navy base on Adak Island in the Aleutian Islands. The Board affirmed the hearing officer's finding that high voltage electrician (or lineman) Charles Jones Jr. shares a sufficient community of interest with the production power plant employees to warrant his inclusion in the appropriate unit. The tally of ballots for the election held in September 1997 shows 6 for Electrical Workers IBEW Local 1547, 6 against the union, 2 challenged ballots, a sufficient number to affect the results of the election, and one void ballot. No election objections were filed. The Employer challenged Claar's mail ballot on the grounds that he had submitted two ballots. The hearing officer determined that the first ballot, completed by Claar's wife, was properly voided and that the second ballot was the only ballot actually completed by Claar, and it should be opened and counted. [TEXT] [PDF]

Visiting Nurse Services of Western Massachusetts, Inc. (1-CA-34580; 325 NLRB No. 212) Holyoke, Mass. July 20, 1998. On a stipulated record, Chairman Gould and Member Liebman found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing changes in terms and conditions of employment during negotiations with Service Employees Local 285 for a collective-bargaining agreement and in the absence of overall impasse over the entire collective-bargaining agreement. The majority granted in part and denied in part the requests of the General Counsel and the Union for certain additional remedies. Specifically, the majority denied the request for an extension of the certification year and for reimbursement of the Union's negotiating costs by the Respondent. However, the majority found that a broad order is warranted inasmuch as the Respondent has continued to violate the Act in this case, notwithstanding the broad remedial order issued against it in a previous case. [TEXT] [PDF]

Member Brame, dissenting, would remand the proceeding for a full evidentiary hearing before an administrative law judge, finding that the stipulated record provided an insufficient basis for deciding the issues presented and therefore the motion to transfer this proceeding to the Board was improvidently granted. He stated: "In my view, the adjudication of these matters requires a more complete understanding of the bargaining that took place between the parties than can be gleaned from the stipulated facts. Specifically, I find that the often cryptic and sometimes conflicting bargaining notes, provided as exhibits to the stipulation of facts, are an unsatisfactory substitute for testimonial evidence by participants in the negotiations, particularly where, as here, the parties have not stipulated that all or any of the notes accurately reflect the parties' discussions in bargaining."

Charge filed by Service Employees Local 285; complaint alleged violation of Section 8(a)(1) and (5). Parties waived their right to a hearing before an administrative law judge.

Thiele Industries, Inc. (6-RC-11428; 325 NLRB No. 211) Windber, Pa. July 20, 1998. The Board considered determinative challenges to an election where the tally of ballots shows 32 for and 30 against the Petitioner, United Mine Workers, with four challenged ballots, a sufficient number to affect the results. The Board, consisting of Members Fox and Liebman, with Chairman Gould concurring and Member Brame concurring in the result, overruled a challenge to an irregularly marked ballot. The Board also overruled the Employer's exception that the election was flawed because probationary employees were improperly excluded from the voting list. In so doing, Members Fox and Liebman stated that "where, as here, the Union has won the election ... the Employer is foreclosed from filing an objection based solely on its failure, even if inadvertent, to comply fully with its obligation under the Excelsior rule to include all eligible voters on the Excelsior list." [TEXT] [PDF]

Chairman Gould, concurring, agreed that the Employer cannot object to its own conduct, noting that the NLRB rules and regulations provide that "a party shall be estopped, from objecting to nonposting of notices if it is responsible for the nonposting." He stated in part: "The same estopple principle is applicable under the Excelsior rule. A party should not be able to assert its own failure to meet its obligations as a basis for setting aside the election."

Member Brame, concurring in the result, stated in part: ... "I disagree with the broad rule which my colleagues announce today to the effect that an employer is uniformly and automatically 'foreclosed' or estopped from filing any objection to an election based on its own inadvertent failure to include the names of all eligible voters on the Excelsior list."

Goski Trucking Corp. and its Alter Ego, Go Transportation, Inc. (22-CA-19950; 325 NLRB No. 192) Harrison, N.J. June 30, 1998. The administrative law judge, with Board approval, dismissed complaint allegations that Respondents, Goski Trucking, Corp. (GTC) and Go Transport (Go), violated Section 8(a)(5) and (1) of the Act for unlawfully failing to recognize the Union by failing to apply certain terms of the existing contract between GTC and the Union to Go employees, and by failing to furnish the Union with requested information. Although the judge indicated that the complaint was barred by Section 10(b), he found single-employer status, as the parties had stipulated, and dismissed the 8(a)(5) allegations for lack of proof that the parties had formed a 9(a) relationship. The Board, for the reasons given by the judge, adopted the dismissal of the complaint on the merits, and thus found it unnecessary to pass on his alter ego and 10(b) findings. [TEXT] [PDF]

Charge filed by Teamsters Local 478; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Newark, N.J., March 5-6, 1996. Decision issued by Adm. Law Judge D. Barry Morris, August 7, 1996.

Patterson-Stevens, Inc. (3-CA-17899; 325 NLRB No. 200) Tonawanda, N.Y. July 9, 1998. The Board overruled the administrative law judge's finding that the conduct of Respondent Counsel Thomas Gill in this compliance proceeding warranted a Board reprimand. The judge found that Gill's conduct throughout the investigation and trial was "worthy of a reprimand" and that his conduct was "a blatant, premeditated attempt to obstruct and delay the Board's process" and "somewhat sleazy." Contrary to the judge, the Board found that Gill did not lie about or misrepresent certain evidence. "We do not condone Gill's conduct in this proceeding. He was without doubt uncooperative and not forthcoming or straightforward. However, we do not find his behavior sufficiently egregious to warrant a Board reprimand. . .," the Board stated. In so finding, the Board specifically disavowed and did not adopt certain passages of the judge's opinion. [TEXT] [PDF]

Charge filed by Laborers' Local No. 210; complaint alleged violations of Section 8(a)(1) and (3). Decision with regard to compliance specification hearing issued Sept. 5, 1997 by Adm. Law Judge Howard Edelman.

Alianza Dominicana (2-CA-27709, et al.; 325 NLRB No. 186) New York, N.Y. June 30, 1998. The Board upheld the administrative law judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1), (3), and (4) of the Act by suspending and discharging G. Rodriguez and then refusing to reinstate her, lowering the evaluation of and then discharging I. Almanzar, discharging C. Salcedo, and interrogating employees about their union support. [TEXT] [PDF]

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]

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.

James Julian Inc. of Delaware (4-CA-24973; 325 NLRB No. 206) Wilmington, Del. July 15, 1998. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to retain Charging Party L. Davis in April 1996 for his union activity when it began operating as a nonunion company. [TEXT] [PDF]

Charge filed by Larry W. Davis; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, Pa., Nov. 17, 1997. Decision issued by Adm. Law Judge James L. Rose, Jan. 22, 1998.

Glen Falls Building and Construction Trades Council (Indeck Energy) (3-CE-55; 325 NLRB No. 204) Corinth, New York July 16, 1998. The issue in this case is whether Indeck is an employer in the construction industry within the meaning of the proviso to Section 8(e) of the Act. The judge found that Indeck is an employer in the construction industry, relying on "various documents subpoenaed by the Respondents from Indeck." The General Counsel and Indeck excepted to this finding on the ground that the judge had not permitted Indeck and the General Counsel to present testimony explaining the context and meaning of those documents. The Board reversed, finding that the judge erred and prejudiced substantive rights by denying the General Counsel and Indeck from presenting such testimony. The case was remanded to the judge for admission and consideration of the omitted testimony. [TEXT] [PDF]

Concurring, Chairman Gould agreed with the majority's decision to remand the case to reopen the record and receive further evidence on the issue of whether Indeck is an employer in the construction industry. He stated that it was necessary in the interest of judicial economy to examine the requirements set forth in Connell Construction Co. v. Plumbers Local 100, 421 U. S. 616 (1975). In so doing, he concluded that if Indeck is an employer within the construction industry, the letter agreement of February 20, 1992 would meet one of the prongs of the Connell test and therefore would not be a violation of Section 8(e).

Charge filed by IndeckEnergy Services of Corinth, Inc. et al.; complaint alleged violation of Section 8(e). Hearing at Albany, N.Y., Sept. 11-14, Nov. 13-14, 1995, and Feb. 27-29, 1996. Decision issued by Adm. Law Judge James F. Morton, Aug. 7, 1996.

M. J. Mechanical Services, Inc. (3-CA-19751, 19753; 325 NLRB No. 205) Tonawanda, N.Y. July 15, 1998. The administrative law judge found, and the Board agreed, that the Respondent failed to rebut the General Counsel's showing that union animus was a motivating factor in its failure to consider for hire 23 job applicants and therefore the Respondent's failure and refusal to consider the applicants violated Section 8(a)(3) and (1) of the Act. The Board also agreed that the Respondent violated Section 8(a)(1) by establishing policies by which it would no longer distribute employment applications from its Rochester office and by which it would no longer provide applicants with copies of their applications. The Board amended the judge's decision in certain respects and included in its Order language traditionally used in refusal-to-consider-cases. [TEXT] [PDF]

Charges filed by Sheet Metal Workers Local 46; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Buffalo, Nov. 18-22, 1996. Adm. Law Judge Arthur J. Amchan issued his decision April 2, 1997.

Trabajadores de Muelles Local ILA 1740 (24-CD-20, 21; 325 NLRB No. 207) San Juan and Ponce, P.R. July 15, 1998. The Board decided that employees of Luis A. Ayala Colon, Sucrs., Inc., represented by Trabajadores de Muelles Local ILA 1740 rather than those represented by Empleados de Muelles de Puerto Rico Local 1901, ILA, are entitled to operate mechanical equipment, including top loaders, shifters, fingerlifts, side picks, and reach stackers, when that equipment is used in the yard and when it is used to receive and deliver containers on land at the Employer's operations in San Juan and Ponce, Puerto Rico. The Board limited its award to the controversy that gave rise to this proceeding, finding inappropriate the request of the Employer and The Puerto Rico Shipping Association for a broad award including all employer-members of the Shipping Association. The Employer, through its membership in the Shipping Association, is signatory to collective-bargaining agreements with Local 1740 and Local 1901. [TEXT] [PDF]