NLRB Decisions - 1999 January-June

Energy Systems & Service (14-RC-11568; 328 NLRB No. 125) Chesterfield, MO June 30, 1999. The Board affirmed the Regional Director's Decision and Order in which he found that the Employer's installation crew leaders are statutory supervisors and dismissed the representation petition because the involvement of an installation crew leader in the organizing effort was so extensive and pervasive as to taint the validity of the Petitioner's showing of interest. Electrical Workers IBEW Local 1 sought to represent all helpers, installers and maintenance employees, including crew leaders, working at the Employer's warehouse and office in Chesterfield, Missouri. The Board, in agreeing with the Regional Director that the Employer's installation crew leaders are statutory supervisors, relied on the limited ground that any one of the crew leaders can effectively block an employee's promotion. The Regional Director had relied on the fact that the crew leaders are regularly the only members of management who are present at job locations and in a position to evaluate and direct the work of crew members, and that the crew leaders are responsible for running jobs, assigning and directing work, requiring unsatisfactory work to be redone, and evaluating employees. [HTML] [PDF]

Wal-Mart Stores, Inc. (14-RC-11759; 328 NLRB No. 126) Jerseyville, IL June 30, 1999. The Board reversed the Regional Director's Decision and Order dismissing the petition filed by Food and Commercial Workers Local 534, reinstated the petition, and directed an election in a unit of the Employer's meat department employees at its Jerseyville, Illinois store. Although the Board agreed with the Regional Director that the petitioned-for unit limited to meatcutters is inappropriate, it found that the Petitioner's alternative request for a unit of meat department employees is appropriate. See Solari's Warehouse Markets, Inc., 319 NLRB 153 (1995). [HTML] [PDF]

Lexington Health Care Group, LLC d/b/a Lexington House (34-RC-1383; 328 NLRB No. 124) New Britain, CN June 30, 1999. Members Liebman and Hurtgen reversed the Acting Regional Director's Decision and Direction of Election and found that the petition is barred by the Petitioner's (New England Health Care Employees District 1199) express agreement not to organize the employees encompassed by the petition. In so doing, the majority applied Briggs Indiana, 63 NLRB 1270 (1945), clarified Cessna Aircraft, 123 NLRB 855 (1959), and dismissed the petition, concluding that "while an agreement to refrain from organizing certain employees must be express, it does not necessarily have to be included in a collective-bargaining agreement." Dissenting, Chairman Truesdale did not join the majority "in their modification of well-settled precedent and their finding that a waiver of the right to represent will bar an election even if that waiver is outside the collective-bargaining agreement." [HTML] [PDF]

Beverly Health and Rehabilitation Services, Inc., et al., d/b/a Beverly Health Care-Centreville, a Single Employer (15-CA-14297; 328 NLRB No. 122) Centreville, MS June 30, 1999. The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (5) of the Act by delaying in providing the Union with requested relevant information regarding, among other things, staffing and workload. The Board affirmed the judge's imposition of traditional remedies and denial of the General Counsel's request for several extraordinary remedies, including an employer-wide cease and desist order and access to Beverly facilities for organizational purposes. [HTML] [PDF]

Charge filed by Food and Commercial Workers Local 1657; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New Orleans, LA, Nov. 19, 1998. Decision issued by Adm. Law Judge George Carson II, Feb. 19, 1999.

Wyandanch Engine Rebuilders, Inc., et al. (29-CA-18139, et al.; 328 NLRB No. 119) Wyandanch, NY June 30, 1999. The Board affirmed the administrative law judge's findings and adopted his recommended Order, with modifications. In brief, the Board concluded that certain specified Respondents violated the Act by failing and refusing to remit certain payments to the Welfare and Pension Funds, failing to meet with the Union and indicating that they would not recognize or bargain with the Union without an illegal loan, dealing directly with employees represented by the Union, refusing to execute a collective-bargaining agreement, withdrawing recognition from the Union, threatening employees with plant closure and loss of sales, and discharging two union activist-employees. [HTML] [PDF]

Charges filed by Teamsters Local 239; complaint alleged violations of Section 8(a)(1), (3), (4), and (5). Hearing at Brooklyn and New York, NY, July 8 and Oct. 6-7, 1997. Decision issued by Adm. Law Judge Howard Edelman, July 6, 1998.

Robert Wood Johnson University Hospital (22-UC-215; 328 NLRB No. 131) New Brunswick, NJ July 8, 1999. Contrary to the Regional Director, the Board dismissed the petition and concluded that the Employer's per diem nurses have been historically excluded from the bargaining unit represented by the Petitioner, and thus cannot be added to that unit by means of unit clarification. [HTML] [PDF]

Westside Painting, Inc. (36-CA-8067; 328 NLRB No. 110) Portland, OR June 24, 1999. The Board held that under Section 102.30 of the Board's Rules and Regulations, witnesses in its unfair labor practices may not testify by telephone and, therefore, the administrative law judge erred in granting the General Counsel's Motion for Approval to Take Telephonic Testimony and permitting discriminatee Shawn Cotto to testify by telephone. The Board struck Cotto's telephone testimony from the record and remanded the proceeding to the judge to either reopen the record to allow the General Counsel to bring in Cotto to testify in person at a hearing, or to proceed on the record without consideration of Cotto's telephone testimony; and to issue a supplemental decision setting forth, if necessary, revised credibility resolutions, findings of fact, conclusions of law, and a recommended Order. [HTML] [PDF]

Charge filed by Painters District Council 55; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Portland on June 11, 1998. Adm. Law Judge William L. Schmidt issued his decision June 29, 1998.

Meritor Automotive, Inc. (11-CA-17710; 328 NLRB No. 117) Fletcher, NC June 25, 1999. The Board dismissed the complaint, agreeing with the administrative law judge that the Respondent's discipline of Paul Kica and its discharge of Eddie Underwood were not motivated by animus toward their union activities. The Board disavowed the judge's suggestion that because there is no evidence establishing an independent violation of Section 8(a)(1), there can be no direct evidence of antiunion animus. In agreeing with the judge that the General Counsel failed to demonstrate that animus against the employees' union activities was a motivating factor in the Respondent's actions against them, the Board found no direct evidence of antiunion animus on the Respondent's part and it found that the judge properly declined to infer animus from the circumstances surrounding the Respondent's treatment of either employee. In view of the result, Member Hurtgen found it unnecessary to pass on whether, or in what circumstances non-8(a)(1) conduct can be used to establish the "animus" element of an 8(a)(3) violation. [HTML] [PDF]

Charge filed by Teamsters Local 61; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Asheville, Aug. 3-4, 1998. Adm. Law Judge George Carson II issued his decision Oct. 8, 1998.

Krist Oil Co. (30-CA-12137, et al.; 328 NLRB No. 108) Iron River, MI June 28, 1999. The Board affirmed the administrative law judge's findings that the Respondent unlawfully discharged Yvonne Mains and Jodi Creten in May 1993, and Richard Johnson and Brian Koski in July 1993, all in violation of Section 8(a)(1) of the Act; and violated Section 8(a)(1) and (4) by ultimately reinstating Mains on May 4 as a trainee, assigning her to perform onerous and excessive work, subjecting her to surveillance by permitting her to work only in accordance with her supervisor's schedule, and refusing to permit her to work at all on May 6, because of her supervisor's absence from work on that day, thus causing her to lose a day's pay. Further, the judge found, with Board approval, that the Respondent's unlawful mistreatment of Mains following her reinstatement on May 4 clearly established that its offers of reinstatement to Mains in April and on May 3 were not made in good faith, and that they did not toll the Respondent's reinstatement obligation and backpay liability stemming from her May 1993 unlawful discharge. In one reversal, Members Hurtgen and Brame, with Member Fox dissenting, disagreed with the judge's finding that the Respondent's offers of reinstatement to Creten, Johnson, and Koski in April and May were not made in good faith and did not toll the Respondent's reinstatement obligation and backpay liability to them. [HTML] [PDF]

Charges filed by Yvonne Mains, Jodi Creten, Richard Johnson, and Donald Maglio, individuals; complaint alleged violation of Section 8(a)(1) and (4). Hearing at Iron City, April 19-20 and May 17, 1994, and in Escanaba, May 18 and 19, 1994. Adm. Law Judge Leonard M. Wagman issued his decision Nov. 16, 1994.

Multicraft International Limited Partnership (10-CA-31101; 328 NLRB No. 114) Cottondale, AL June 28, 1999. The Respondent threatened employees with job loss if they selected a union to represent them and that it would be futile for them to select the Auto Workers (UAW) as their collective-bargaining representative in violation of Section 8(a)(1) of the Act, the Board held in agreement with the administrative law judge. [HTML] [PDF]

Charge filed by Celia Price, an individual; complaint alleged violation of Section 8(a)(1). Hearing held on Feb. 16, 1999. Adm. Law Judge Keltner W. Locke issued his decision April 20, 1999.

Wire Products Mfg. Corp. (30-CA-13999, 14069; 328 NLRB No. 115) Merrill, WI June 28, 1999. The Board upheld the administrative law judge's decision that the Respondent violated Section 8(a)(5) and (1) of the Act by these acts: unilaterally promoting unit employees to supervisory or foreman positions, removing unit work from the bargaining unit, and changing unit employees' compensation or rates of pay, all without prior notice to or affording Machinists District W3 an opportunity to bargain; and failing to provide the Union with requested necessary and relevant information. [HTML] [PDF]

Charges filed by Machinists District W3; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Wausau on Nov. 5, 1998. Adm. Law Judge Karl H. Buschmann issued his decision March 31, 1999.

Novato Disposal Services, Inc. (20-RC-17513; 328 NLRB No. 118) Petaluma, CA June 25, 1999. The Board concluded, contrary to the Regional Director, that the Employer presented sufficient evidence to rebut the single facility presumption and that the petitioned-for unit of drivers and helpers working at the Employer's Petaluma, California facility is not an appropriate unit for bargaining. The Board reversed the Regional Director's Direction of Election and remanded the case to him to determine the appropriate unit for bargaining. [HTML] [PDF]

The Employer contended that the only appropriate unit includes approximately 110 employees employed by eight separate corporations that are part of an overall family owned and operated business called the Ratto Group Corporation (the Ratto Group) engaged in the collection of refuse and recycling of materials in Marin and Sonoma Counties, California. The Regional Director found that: the Employer is a separate administrative segment of the Ratto Group with a separate payroll, some of the drivers have regular route assignments originating at the Petaluma facility, there is some geographic distance between the Petaluma yard and the Ratto Group's other facilities, and the Union currently represents drivers at two of the other Ratto Group companies in separate units.

The Board, in finding that the Employer successfully rebutted the single-facility presumption, noted the undisputed facts that employees of all of the Ratto Group's companies share common supervision by the Ratto Group's owner and operations manager, and that there is a high degree of centralized control over labor relations. There is also a significant degree of contact and interchange, including both permanent transfers and frequent temporary interchange, between the petitioned-for drivers and drivers from other Ratto Group employees. And, all of the unrepresented employees share common pay and benefits, have common seniority, and receive similar training; and employees in similar classifications perform similar work regardless of location.

Direct Press Modern Litho, Inc. (29-RC-8574; 328 NLRB No. 107) Huntington Station, NY June 29, 1999. Reversing the Regional Director, Board Members Fox and Liebman ruled that a bankruptcy court's 6 1/2 month extension of the collective-bargaining agreement between the Employer and Teamsters Local 918 acted as a contract bar to Intervenor United Industry Workers Local 424's representation election petition. In so doing, the majority noted that "where the salutary goal of collective-bargaining stability has been enhanced by the Employer's dire financial condition, we do not think that such a short-term postponement is inappropriate, and in fact it is justifiable. In a context requiring that we acknowledge the Bankruptcy Code's competing, legitimate statutory interest, this delay does not, in our view, cause substantial harm to the employees' exercise of their right to choose a bargaining representative." Further, the majority found that the "`premature extension' rule does not alter our view of the appropriate accommodation of policies here." Dissenting, Member Brame would affirm the Decision and Direction of Election, stating, in part, that the Regional Director applied "well-established contract-bar principles" and that the majority "grafts yet another exception onto the Board's contract-bar doctrine and unjustifiably prevents the unit employees from expressing their wishes concerning their union representation." [HTML] [PDF]

Enercon Testing & Balancing Corp. (2-CA-31303; 328 NLRB No. 106) New York, NY June 23, 1999. The Board affirmed the administrative law judge's finding that employee Steven Skolnik was selected unlawfully for an economic layoff as a result of his union activity, not lack of work, as the Employer maintained. The Board ordered that Skolnick be reinstated and made whole for any loss of earnings. [HTML] [PDF]

Charges filed by Steven Skolnik, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, NY, Nov. 19 - 20, 1998. Adm. Law Judge Raymond P. Green issued his decision March 3, 1999.

Yukon Kuskokwin Health Corp. (19-RC-13271; 328 NLRB No. 101) Bethel, AK June 18, 1999. The Board affirmed the Regional Director's Decision and Direction of Election, relying on Sac & Fox Industries, 307 NLRB 241 (1992), and asserted jurisdiction over the Employer, an acute care hospital in Bethel, Alaska, which is governed by a board of directors elected by Alaska Native tribes but located on land owned by the Federal Government, or off a treaty reservation. In Sac & Fox, the Board asserted jurisdiction over off-reservation commercial facilities wholly-owned and controlled by an Indian tribe. In this case, the Board rejected the Employer's and amicis' argument that the facility is located in "Indiana country" within the meaning of 18 U.S.C. 115(b) and, therefore, should be treated as tantamount to a reservation. The Board pointed out that the Ninth Circuit's decision in Alaska v. Native Village of Venetie, 101 F.3d 1286 (9th Cir. 1996), relied on by the Employer and amici Tanana Chief Conference, Inc. in support of their arguments, was reversed by the Supreme Court. See Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998). "The Supreme Court's decision supports our conclusion that the Hospital is not located on or near land that should be treated as tantamount to a reservation, or Indiana country," the Board stated. [HTML] [PDF]

The Employer provides primary and acute care to Alaskan Natives (about 95 percent of its patients) and to non-natives in Bethel. The Federal Government owns the building occupied by the Hospital and the land on which it is located. Teamsters Local 959 is seeking to represent a unit of 40-44 licensed practical nurses and registered nurses. Only 1 or 2 members of the petitioned-for unit are Alaskan Natives.

J.C. Penney Co. (17-RC-11368; 328 NLRB No. 105) Lenexa, KS June 18, 1999. The Board reversed the Regional Director's exclusion of the Employer's telemarketing department employees from the unit he found appropriate (all full-time and regular part-time employees employed by the Employer at its catalog fulfillment center in Lenexa, Kansas). There are 950 employees in the unit found appropriate, and about 365 employees in the telemarketing department. Although the telemarketing department employees' separate supervision mitigated against their required inclusion in the unit, the Board noted these other factors that required inclusion. The telemarketers and employees in the petitioned-for unit work in the same building, receive similar wages and benefits, are subject to the same personnel policies, have similar skills and perform similar functions, and have substantial contact and interaction. There is routine permanent interchange and some temporary interchange between telemarketing department employees and the other employees at issue, and the functions of the telemarketers are integrated with the overall function of the Lenexa facility--receiving processing, filling, and distributing orders for merchandise ordered by customers from the Employer's catalogs. [HTML] [PDF]

Dearborn Big Boy No. 3, Inc. (7-CA-38575; 328 NLRB No. 92) Detroit, MI June 11, 1999. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by discharging employee Kimberly Kirby because she concertedly told other employees that the Respondent engaged in racially discriminatory hiring practices. The judge determined that the Respondent did not prove that it would have discharged Kirby even in the absence of her protected activity, due to her use of foul language, poor interpersonal skills, and bad work attitude, because she was never even suspended for these activities in the past, although she had been reprimanded and counseled. Although the Board agreed with this finding, Member Brame noted that the Respondent excepted only to the judge's finding that Kirby's raising racial discrimination concerns was protected activity. Member Brame finds that the content of those concerns was protected, and noted that the Respondent did not contend that the manner in which the concerns were presented demonstrated she was not engaged in protected activity. Member Brame also agreed with his colleagues that, under the "unique circumstances" here, a reinstatement and backpay remedy is appropriate. [HTML] [PDF]

Charge filed by Kimberly Kirby, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Detroit, April 7, 1997. Decision issued by Adm. Law Judge Earl E. Shamwell, Jr., Nov. 7, 1997.

Longshoremen's Local 1969 (Shore Services) (25-CB-7938; 328 NLRB No. 113) Portage, IN June 24, 1999. The Board affirmed the administrative law judge's finding that the Respondent Union unlawfully denied Jesse Martinez job referrals to certain employers with which it has maintained an exclusive hiring agreement. It stated: "The General Counsel in this case has proven that the Respondent has violated its own contractually founded exclusive job referral hiring hall rules and procedures by issuing an official written notification of universal nonreferrability to Martinez, confirmed by concurrent similar oral notification. The General Counsel has demonstrated that some non-reciprocal employer work was available to Martinez after that notification. By its own admission, Martinez did not obtain subsequent referral from the Respondent of any kind." [HTML] [PDF]

Charges filed by Jesse Martinez, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing held on July 29, 1998. Adm. Law Judge Thomas R. Wilks issued his decision on April 16, 1999.

Systran Mfg. Corp. (7-RC-21446; 328 NLRB No. 111) Brownstone, MI June 24, 1999. In a Decision and Direction, the majority opinion by Chairman Truesdale and Member Fox directs the Regional Director to count 5 challenged ballots in an election with a tally of 81 for the union and 78 against. Dissenting Member Hurtgen, while agreeing the 5 challenged voters shared a sufficient community of interest to warrant inclusion in the unit and that their votes should be counted, said he would sustain the Employer's objection, set aside the election and direct a second election. [HTML] [PDF]

The Employer contended the Union interfered with the election by distributing to employees an official sample ballot, defaced with the "YES" box checked. Member Hurtgen said he was concerned about the danger that employees would be misled into believing that the Board supported the Union, noting that the Spanish-translation posted notice did not contain a disclaimer. He would require such a disclaimer, explaining that defacements are not those of the Board, on any sample ballot.

The majority responded to Member Hurtgen as follows in a footnote: "In dissent, our colleague seeks to establish a new 'bright line' test in which he would require that an altered Board ballot circulated as election campaign propaganda must contain on its face a disclaimer of Board involvement (or, alternatively, that the defacer says that it is responsible for the sample ballot). We decline to modify well-developed Board precedent with respect to the use of altered or defaced sample ballots as election propaganda. We find that the hearing officer appropriately applied the Board's two-part analysis set out in SDS Investments, 274 NLRB 557 (1985), in determining that the Union's distribution of marked sample ballots was not objectionable because employees receiving these documents could readily conclude that they came from the Petitioner. Under these circumstances, the ballots were not likely to mislead employees into assuming that the Board endorsed the Petitioner. We further find no objective record basis for the dissent's general observations about the Employer's Spanish-speaking employees' ability to understand the Board's electoral process."

Carpenters Local 405 (32-CA-16540; 328 NLRB No. 109) Oakland, CA June 23, 1999. The Board agreed with the administrative law judge's finding that the Respondent, as a union employer, unlawfully refused to execute a successor collective-bargaining agreement. The judge had found the Respondent's claim of "unilateral mistake" to justify its disavowal of the agreement to be without merit. In a footnote, the Board said it would draw an adverse inference, as here, when a witness (the Respondent's former Business Manager) failed to appear at the hearing on behalf of a party for whom he would be expected to give favorable testimony. [HTML] [PDF]

Charge filed by Office and Professional Employees Local 29; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Oakland, CA, October 5, 1998. Adm. Law Judge Joan Wieder issued her decision on March 9, 1999.

D & T Limousine Service (13-CA-36057, et al.; 328 NLRB No. 104) Chicago, IL June 23, 1999. The Board, as it has in two previous decisions [207 NLRB 121 (1973), 320 NLRB 859 (1996)], rejected the contention of this Employer, which provides transportation services to railroad personnel, that it was covered by the Railway Labor Act. The Board affirmed the administrative law judge's finding that the Respondent was within its jurisdiction. The judge noted that while the Respondent provided services exclusively for railroads, it is not "controlled" by the railroads; rather, it retains a wide range of control in operating its business. [HTML] [PDF]

The Board found the Respondent had unlawfully refused to hire two employees and unlawfully refused to recognize and bargain with the Union.

Charges filed by Teamsters Local 777; complaint alleged violation of Section 8(a)(5), (3), and (1). Hearing at Chicago, Dec. 3-4, 1997. Adm. Law Judge William G. Kocol issued his decision Jan. 29, 1998.

The Burlington Times, Inc. (4-CA-25577; 328 NLRB No. 96) Willingboro and Medford, NJ June 18, 1999. The Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by granting employees a benefit (rescinding Supervisor Renee's unpopular mileage reimbursement policy) to discourage them from engaging in union organizing activity. In so doing, the Board relied on the judge's rational and on additional reasons, emphasizing the timing and unprecedented nature of the Respondent's conduct and rejecting the argument that the action was motivated by legitimate business reasons based on evidence the judge discredited. The judge's finding that the Respondent violated 8(a)(1) by terminating Renee to discourage union activity also was upheld by the Board. The Board rejected, as did the judge, the Respondent's argument that certain 8(a)(1) allegations, found proven by the judge, were time barred by Section 10(b). Contrary to the judge, the Board determined that a Gissel bargaining order was not necessary to effectuate the purposes of the Act, reversed related Section 8(a)(5) findings, and ordered traditional remedies. [HTML] [PDF]

Charges filed by Teamsters Local 628; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Philadelphia, July 8, 1997. Decision issued by Adm. Law Judge James L. Rose, Oct. 2, 1997.

Cooper Tank and Welding, and Cooper Truck Corp. (29-RC-9096; 328 NLRB No. 97) Brooklyn, NY, June 18, 1999. Granting review on this issue only, the Board determined, contrary to the Acting Regional Director, that the contract between Cooper Tank and the Intervenor (League of International Federated Employees Local 445) does have bar quality with respect to the Maspeth Avenue unit employees. In brief, the Board did not agree with the finding that the contract's failure to specify wage rates and the absence of an execution date removes the contract as a bar. Thus, it dismissed the petition with respect to covered employees. [HTML] [PDF]

Frazier Industrial Co. (27-CA-14667; 328 NLRB No. 89) Pocatello, ID June 14, 1999. Members Fox and Liebman affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by discriminatorily promulgating and maintaining a rule prohibiting employees from discussing the Union on worktime while tolerating other discussions about nonwork matters during working time and when its supervisor Dennis Haga inquired of employee Mike Jennings whether employee John Ramirez was bothering him; and violated Section 8(a)(3) and (1) by discharging Ramirez because he failed to adhere to the Respondent's unlawful rule barring union talk during worktime. Member Brame, dissenting in part, found that the Respondent did not violate Section 8(a)(3) and (1) by discharging Ramirez because his union activities, undertaken during worktime, rose to the level of harassment and interfered with production; and that the Respondent did not violate Section 8(a)(1) when Haga asked Jennings whether Ramirez had been bothering him, noting the repeated complaints by employees, including Jennings, of harassment by Ramirez. [HTML] [PDF]

Charge filed by Sheet Metal Workers Local 60; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Pocatello, Nov. 7-8, 1996. Adm. Law Judge William L. Schmidt issued his decision Dec. 3, 1997.

Tracer Protection Services and Ormet Primary Aluminum (15-CA-12970, 12971; 328 NLRB No. 94) Burnside, LA June 16, 1999. The administrative law judge found, and the Board agreed, that Respondent Ormet Primary Aluminum (Ormet) requested and caused Respondent Tracer Protection Services (Tracer) to remove and discharge Shane Crump, a Tracer employee, as a guard at Ormet's manufacturing facility, because he had divulged to union officials an Ormet company plan to discipline them in violation of Section 8(a)(1) of the Act. The Board included a new Order and notice, finding merit in Ormet's exceptions to the judge's recommendation to impose on it the joint and several obligation to offer reinstatement to Crump, who was solely the employee of Tracer. Thus, it ordered that the Respondents have joint and several backpay liability to Crump, but that only Tracer has the remedial obligation to reinstate him. The Board ordered Ormet to notify Tracer that it has no objection to Tracer's rehiring of Crump and assigning him to the Ormet facility, in the event that Tracer performs security services at that facility. [HTML] [PDF]

Charges filed by Shane Crump, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Baton Rouge, LA, Jan. 22-23, 1996. Adm. Law Judge Howard I. Grossman issued his decision June 14, 1996.

CGE Caresystems, Inc. (3-RC-10634; 328 NLRB No. 103) Syracuse, NY June 17, 1999. The Board affirmed the Regional Director's conclusion that the petitioned-for unit of service and maintenance employees at the Employer's Syracuse, New York medical equipment and clinical services facility is an appropriate unit for bargaining, and that the Employer's clerks may properly be excluded from that unit. In so concluding, however, the Board found, in agreement with the Employer, that the proper analysis is that set forth in Park Manor Care Center, 305 NLRB 872 (1991). Applying that test, the Board reversed the Regional Director with respect to her exclusion of the customer service representatives, and modified the unit found appropriate specifically to include them. The election was held as scheduled on February 24, 1998, and the ballots were impounded pending the Board's decision on review. Teamsters Local 182 is the petitioning union. [HTML] [PDF]

Beverly Enterprises-Massachusetts, Inc., d/b/a Beverly Manor Nursing Home (1-CA-35006, 35390; 328 NLRB No. 102) Plymouth, MA June 16, 1999. The Board granted the General Counsel's Motion for Summary Judgment on the grounds that the Respondent violated Section 8(a)(5) and (1) of the Act when it admittedly refused to furnish information validly requested by Service Employees Local 767. In so doing, the Board rejected the Respondent's affirmative defenses raised in response to the Notice to Show Cause, which were the same as those considered and rejected in a prior decision. The Board noted that the Respondent had not complied with the prior Order of the Board or the court regarding these same issues nor argued that it had newly discovered evidence, special circumstances, or raised an affirmative defense not already considered and rejected. [HTML] [PDF]

Charges filed by Service Employees Local 767; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for Summary Judgment June 18, 1998.

Transportation Maintenance Services, L.L.C. (14-RD-1568; 328 NLRB No. 93) Bridgton, MO June 10, 1999. A Board majority denied the Employer's motion requesting that the Board reconsider its approval of the employee/Petitioner's request to withdraw a decertification petition after the election was held but before the ballots were counted. In so doing, the majority rejected the Employer's argument that, because the election already had been conducted, it would be inequitable to permit one employee (the Petitioner) to withdraw the petition, thereby depriving unit employees of their vote. Citing the Casehandling Manual, the majority noted that the only instance where a withdrawal request should not be approved is where it appears that the intent of the request is to circumvent the 1-year election bar of Section 9(c)(3). There is no evidence or claim of such intent here, the majority said. In addition, they pointed out that the Casehandling Manual's general policy is to approve withdrawal requests where, as here, there is no evidence that the Petitioner's request is not genuine or voluntary, or where approval of the request "would result in a situation that would run counter to the purposes of the Act." Here, they stated, approval of the request to withdraw "actually furthers one of the primary purposes of the Act, namely that of promoting stability in collective-bargaining relationships." [HTML] [PDF]

Dissenting, Members Hurtgen and Brame, would rescind the Board's Order granting withdrawal of the decertification petition, reinstate the petition, and order that the ballots be opened and counted. They stated that once the views of unit employees have been expressed by secret ballot, "they should not be negated by the subsequent withdrawal by an individual employee (the Petitioner)." Moreover, they stated that the Manual does not necessarily represent Board law, which "should reflect the fundamental policy of the Act, viz. to assure that employee wishes, expressed in a free and fair election, are honored."

Indiana Gas Co. (25-CA-25438, 25674; 328 NLRB No. 81) Danville, IN May 28, 1999. The Board found, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act when field supervisor John Friend warned employees Notter and Riggs that if they told the union steward about the new meter reader position, they could lose their jobs, and when operations manager Burke told Riggs and employee Ferguson that if they told the union steward about the new position, Riggs could be bumped from his meter job. The Board further found, regarding a complaint allegation that the judge failed to address, that Burke's statement to Riggs that Burke could not trust union employees anymore because they revealed job-related information to their union steward also violated Section 8(a)(1). [HTML] [PDF]

Charges filed by Electrical Workers IBEW Local 1393; complaint alleged violation of Section 8(a)(1). Hearing at Indianapolis, June 1-2, 1998. Adm. Law Judge Marion C. Ladwig issued his decision Aug. 28, 1998.

Poly-America, Inc. (16-CA-18366; 328 NLRB No. 88) Grand Prairie, TX May 28, 1999. The Board affirmed the administrative law judge's findings that the Respondent's dye shop leadmen, Lupe Rivera, Andy Farmer, and Lee Marsh, and its reprocessing department junior foreman, Mike Wichter, were agents of the Respondent because it used the individuals as conduits for relaying to the employees decisions, directions, and views of the Respondent which could not be directly communicated by the Respondent's supervisors. The Board found that the employees would reasonably have believed that the leadmen and Wichter were expressing management's antinunion views and acting on management's behalf when taking action regarding union activities. [HTML] [PDF]

The Board also agreed with the judge that the Respondent's security guards were agents because they were acting under specific directions from the Respondent when they blocked striking employees from returning to the plant, confiscated union literature from employees outside of the plant, confronted employees Britt Samson and Brian Robinson regarding their union activities, and videotaped employees Samson and Robinson and other employees engaged in union activities. Further, the Board agreed that the Respondent violated Section 8(a)(3) and (1) by discharging Jason Snow and violated Section 8(a)(1) when Wichter told employees that the Union would cause the Respondent to lower wages, hours, and overtime and that job security would suffer. In a reversal of the judge, the Board found that Wichter's further comments did not violate Section 8(a)(1) because they contained no threats or promises. Wichter told the employees that the Union was no good, that it had threatened to burn the plant, and that it would charge up to $300 in weekly or monthly fees. "Here, Wichter was merely sharing with employees his own negative views about the union," the Board said.

Charge filed by UNITE; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Ft. Worth, July 21-23, 1997. Adm. Law Judge Pargen Robertson issued his decision Dec. 3, 1997.

The Henry Bierce Co. (8-CA-21471, 21995; 328 NLRB No. 85) Akron, OH May 28, 1999. On remand from the U.S. Court of Appeals for the Sixth Circuit, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from Teamsters Local 348 in November 1988, and by dealing directly with its employees concerning terms and conditions of employment in March 1989. Chairman Truesdale and Member Fox, with Member Brame dissenting, entered a bargaining order restoring the status quo ante, explaining that the order "merely requires the Respondent to resume compliance with its preexisting bargaining obligation, which it had repudiated without a lawful basis. It does not occur in the context of a union's attempt to establish a relationship with a stranger employer, but in the context, in this case, of a bargaining relationship of over 20 years' duration. Thus, our order here, unlike a Gissel order, merely requires restoration of the status quo ante-the bargaining relationship between the Union and the Respondent--and is based on violations of Section 8(a)(5) and (1), not solely on violations of Section 8(a)(1) and (3)." [HTML] [PDF]

Member Brame wrote that his colleagues' order imposes on the employees an obligation and a relationship that they had no part in choosing, forecloses them from continuing their twelve-year practice of negotiating individually with the Respondent, bars them from selecting a new collective-bargaining representative for possibly 3 years or longer, and, in the interim, requires that their terms and conditions of employment be altered to reflect whatever agreement is reached between the Respondent and a union that they did not select.

Marvin Neiman, Individually, and d/b/a Concourse Nursing Home and its alter ego CNH Management Associates, and its alter ego Concourse Rehabilitation and Nursing Center (2-CA-28638, et al.; 328 NLRB No. 91) Bronx, NY June 11, 1999. The Board affirmed the administrative law judge's findings that Marvn Neiman, individually, and d/b/a Concourse Nursing Home, CNH Management Associates (CNH), and Concourse Rehabilitation and Nursing Center (CRNC), collectively called the Respondent, are alter egos and a single employer and are liable for the various unfair labor practices; and that the Respondent violated Section 8(a)(5) and (1) of the Act by its July 1995 refusal to meet and bargain with Service Employees Local 144 and by its failure to remit various benefit fund contributions for the periods specified by the judge. However, contrary to the judge, the Board found that additional pension fund contributions are due for the licensed practical nurses. And, it reversed the judge's findings that the Respondent failed to submit remittance reports on benefit fund contributions as required by the parties' contract and that Marvin Newman is individually liable for periods after October 1995, when CRNC became the owner and operator of the nursing home. Member Brame dissented from the finding that extends the time for which the LPNs are owned pension contributions. [HTML] [PDF]

Charges filed by Service Employees Local 144; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, May 28-31, June 3, 10, 27 and July 2, 1996. Adm. Law Judge Steven Davis issued his decision March 11, 1997.

Blue Star Services, Inc. (36-CA-8132; 328 NLRB No. 83) Ridgefield, WA May 28, 1999. The administrative law judge held, and the Board agreed, that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employee Ken Nowack because he discussed wages, breaks, working conditions, and organizing a union with other employees. [HTML] [PDF]

Charge filed by Amalgamated Transit Union Division 757; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Portland, OR, Oct. 8-9, 1998. Decision issued by Adm. Law Judge Frederick C. Herzog, Dec. 8, 1998.

Cement Masons Local 502 (PBM Concrete, Inc.) (13-CD-566; 328 NLRB No. 84) Schaumburg, IL May 28, 1999. In this Section 10(k) proceeding, Laborers Local 109, Laborers International, and Laborers North Central Illinois District Council, alleged that Cement Masons Local 502 violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing PBM Concrete to assign certain work to employees represented by Local 502 rather than employees represented by Laborers. The Board concluded that employees represented by Laborers were entitled to perform the disputed work, based on collective-bargaining agreements, employer preference and current assignment, past practice, relative skills, and economy and efficiency of operations. The Employer's request that a broad order be issued to cover future disputes was denied because of insufficient evidence of similar prior jurisdictional disputes or that the dispute at issue here was likely to recur. [HTML] [PDF]

Temple Security, Inc. (13-CA-33078, 33382; 328 NLRB No. 87) Chicago, IL May 28, 1999. Declining to reverse Wells Fargo Corp., 270 NLRB 787 (1984), the Board in a 3-2 decision found that the Respondent acted lawfully when, on the termination of a collective-bargaining agreement, it withdrew recognition from the Charging Party-Union because the union admitted nonguards as members. In Wells Fargo Corp., which interpreted Section 9(b)(3) of the Act, the Board held that an employer can voluntarily recognize a union that represents both guards and nonguards but the employer "was privileged to withdraw from the relationship at the time that it chose to do so." Section 9(b)(3) provides that "no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards." [HTML] [PDF]

The majority opinion is by Chairman Truesdale and Members Hurtgen and Brame. Members Fox and Liebman, dissenting, agreed with the position of the General Counsel and Charging Party-Union that Wells Fargo was wrongly decided and should be overruled. Their view is that "a guard employer, having voluntarily entered into a bargaining relationship with a mixed guard union, is estopped from repudiating that relationship."

Charges filed by Service Employees Local 73; complaint alleged violations of Section 8(a)(5), (3), (2) and (1). Parties waived their right to a hearing.

Washington Beef, Inc. (19-CA-24514, 24665; 328 NLRB No. 79) Toppenish, WA May 28, 1999. The Board found, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide Food and Commercial Workers Local 1439 with the information requested in its letters dated December 12, 1995, April 16, May 21, and June 5, 1996, including information pertaining to a 401(k) retirement program for bargaining unit employees, the semiannual bonus paid to bargaining unit employees, and the April 1996 wage increase; and by refusing to bargain with the Union regarding the amount of time which will be given to the unit employees to establish that they possess authentic work documents. The Board modified the judge's recommended Order to include affirmative provisions remedying the violations. [HTML] [PDF]

Charges filed by Food and Commercial Workers Local 1439; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Yakima, Oct. 1-2, 1996. Adm. Law Judge Burton Litvack issued his decision May 1, 1997.

Baptist Hospital, Orange (16-CA-19047; 328 NLRB No. 82) Orange, TX May 28, 1999. The administrative law judge concluded that the Respondent's discharge of Elisa Williamson violated Section 8(a)(1), (3), and (4) of the Act. The Board affirmed the 8(a)(1) violation only. There is no basis in the complaint or record for the 8(a)(3) violation, the Board said in deleting the reference from the judge's conclusions of law. And, in the circumstances presented here, it found no need to pass on whether Williamson's discharge violated Section 8(a)(4). [HTML] [PDF]

Charge filed by Elisa Williamson, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Port Arthur, June 22-23, 1998. Adm. Law Judge Howard I. Grossman issued his decision Aug. 20, 1998.

DIC Entertainment, LP (31-RC-7705; 328 NLRB No. 86) Burbank, CA May 28, 1999. The Board concluded that the issue of whether storyboard supervisors are "supervisors" within the meaning of the Act and can vote in an upcoming representation election involving I.A.T.S.E. Local 839, is best resolved through the use of the challenge procedure. Accordingly, the Board amended the Acting Regional Director's Decision and Direction of Election to permit storyboard supervisors to vote under challenge and denied the Employer's request for review in all other respects. In so doing, the Board agreed that the Acting Regional Director carefully tailored an appropriate eligibility formula reflecting the circumstances of this case. [HTML] [PDF]

Grinnell Fire Protection Systems Co. (5-CA-24521, et al.; 328 NLRB No. 76) Exeter, NH May 28, 1999. In pertinent part, a Board majority agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing terms and conditions of employment by implementing its final contract offer when there was no impasse in bargaining. Accordingly, the majority concurred with the judge that the Respondent violated Section 8(a)(5) and (1) by refusing to meet and bargain in good faith with the Union and that the ensuing strike was an unfair labor practice strike. Member Hurtgen, dissenting in part, found that the Respondent's changes were lawful because an impasse was reached and that the strike was not protected. In addition, the Board reversed the judge and found that the Respondent violated Section 8(a)(1) by Supervisor William Frederick's coercive remarks made to employee James Remy. Addressing another issue, the Board determined that the judge can proceed to deciding whether the Respondent violated Section 8(a)(1) by filing a Federal district court suit against the Charging Parties in retaliation against them for engaging in protected activities and remanded this issue for the judge to decide. [HTML] [PDF]

Charges filed by Road Sprinkler Fitters (Plumbers) Local 669 and Plumbers United; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Washington, D.C., on 22 days between Oct. 16, 1995 and March 28, 1996. Decision issued by Adm. Law Judge Richard A. Scully, Jan. 16, 1997.

Jet Star, Inc. (13-CA-35087; 328 NLRB No. 73) Hammond, IN May 27, 1999. The Board affirmed the administrative law judge's finding that the Respondent unlawfully discharged employee John Krueger. However, it did not rely on the judge's finding that the Respondent "intercepted" a fax of union bylaws that was addressed to prounion employee John Ramos from former dispatcher and Supervisor Amy Gregory. Instead, it relied on the uncontradicted evidence that two weeks after the bylaws were faxed, Terminal Manager Smith approached Gregory with a copy of the bylaws and asked if she knew anything about them. [HTML] [PDF]

Charges filed by John Krueger, an individual; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Chicago, IL, June 29 and 30, 1998. Adm. Law Judge Robert A. Giannasi issued his decision on September 16, 1998.

TNT Skypak, Inc. (29-CA-17875, et al.; 328 NLRB No. 67) Long Island City, NY May 24, 1999. In pertinent part, the Board overruled Driftwood, 312 NLRB 247 (1993), enfd. 67 F3d. 307 (9th Cir. 1995), to the extent it is inconsistent with this decision, and imposed a remedial Order, like the Board's Order in Crimptex, 221 NLRB 595 (1975), providing that where the Respondent's unlawful conduct frustrates the formation of a collective bargaining agreement, the "execution date," is the date the agreement would have been executed but for the Respondent's unfair labor practice. Furthermore, the Board stated that "[t]o the extent there is any uncertainty about that date, the uncertainty is resolved against the Respondent, under well-established principles." [HTML] [PDF]

Charges filed by Teamsters Local 851; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Brooklyn, NY, April 3-4, May 22-23, 1995. Decision issued by Adm. Law Judge Raymond P. Green, Sept. 8, 1995.

Comcast Cablevision of Philadelphia, L.P. (4-CA-19155, et al.; 328 NLRB No. 74) Philadelphia, PA May 24, 1999. The Board affirmed the administrative law judge's withdrawal of a Gissel bargaining order and ordered that a second election be held, but a Board majority determined that an alternative remedy is warranted to "dissipate as much as possible the lingering effects of the Respondent's unfair labor practices, and to ensure that a fair election can be held." The Board's earlier decision imposing a Gissel order was appealed to the U.S. Court of Appeals for the D.C. Circuit, which remanded it to the Board to consider evidence on the propriety of a bargaining order and to consider if other remedies would be more appropriate given the facts. In withdrawing the Gissel order, the Board recognized that, "particularly given the Board's long and unjustified delay in processing the case, a Gissel bargaining order likely would be unenforceable. Rather than engender further litigation and delay over the propriety of a bargaining order, we believe that employee rights would better be served by proceeding directly to a second election." As part of the remedy, the majority ordered the Respondent to provide the Union on request with the names and addresses of its current unit employees. Concurring in part and dissenting in part, Member Brame agreed that a Gissel remedy is not appropriate but disagreed that an alternative remedy is necessary for a fair second election given the facts. [HTML] [PDF]

Adm. Law Judge Thomas R. Wilks issued his Supplemental Decision and Order on Remand, Jan. 19, 1996. The Board issued its initial decision on Nov. 23, 1993.

Eby-Brown Co. L.P. (25-RD-1171, 25-CA-22530-1, et al.; 328 NLRB No. 75) Indianapolis, IN May 26, 1999. Although it upheld the administrative law judge's findings that the Respondent committed numerous unfair labor practices, the Board did not find that a Gissel bargaining order was appropriate. The Board also amended the judge's remedy so that bonuses paid would not result in a windfall to some employees and upheld the judge's broad order to cease and desist from restraining Section 7 activity. A second decertification election was ordered. Member Hurtgen, dissenting in part, disagreed that the Respondent's decision to relocate part of its business was a mandatory subject of bargaining, disagreed that the Respondent's statement that it did not have money for a profit-sharing plan or to meet union demands because of financial depletion due to the decertification campaign and arbitration proceedings implied that benefits would be withheld in retaliation for Section 7 activities, and disagreed that the Respondent's statement that it would postpone wage increase decisions until all legal proceedings were over implied that a wage increase would be taken away for an unlawful reason. [HTML] [PDF]

Decertification petition filed by Robert Burnett, an individual; unfair labor practice charges filed by Teamsters Local 135 and Douglas Jones, an individual. Complaint alleged violations of Section 8(a)(1), (3), (4), and (5). Hearing held for 28 days between July 25 and Oct. 28, 1994. Decision issued by Adm. Law Judge Nancy M. Sherman, July 26, 1996.

Michigan Timber & Truss, Inc. (7-CA-40380; 328 NLRB No. 70) Detroit, MI May 21, 1999. The Board affirmed the administrative law judge's dismissal of a complaint that alleged the Respondent, by shift foreman James Bennett, unlawfully (1) interrogated the Charging Party, an employee/union organizer, about his union activities and (2) terminated him because of those activities. Contrary to the judge, however, Member Brame said in a footnote he could find the statement by Bennett--to the effect that the company did not need or want a union--was not a personal opinion. He would find the statement lawful under Section 8(c) of the Act. In the same footnote, Chairman Truesdale and Member Hurtgen agreed the remark did not violate Section 8(a)(1), relying on all the circumstances, including the personal nature and substance of the remarks. [HTML] [PDF]

Charges filed by Patrick T. Raquepaw, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, MI, on June 17, 1998. Adm. Law Judge C. Richard Miserendino issued his bench decision on July 27, 1998.

Stanford Linear Accelerator Center (20-CA-26960; 328 NLRB No. 71) San Francisco, CA May 21, 1999. The Board adopted the administrative law judge's finding that the Respondent did not unlawfully dismiss and refuse to rehire employee Louis Davoli. In so doing, however, the Board stated in a footnote that it did not agree with the judge that the General Counsel had established a prima facie case of discriminatory conduct. Member Fox agreed that the General Counsel had failed to show that antiunion sentiment was a motivating factor. Therefore, she would find it unnecessary to pass on the Respondent's alternative defense that even if Davoli's protected activity was a motivating factor the Respondent would have taken the same actions even in the absence of his protected activity. [HTML] [PDF]

Charges filed by Louis Davoli, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Francisco, CA on January 16 and 17, 1997. Adm. Law Judge Gerald A. Wacknov issued his decision March 18, 1997.

Daufuskie Island Club and Resort (11-CA-17334; 328 NLRB No. 56) Daufuskie Island, SC May 14, 1999. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by denying employment to 108 of its predecessor's (Melrose Club) employees, unilaterally setting its employees' terms and conditions of employment, and failing to bargain with Operating Engineers Local 465. [HTML] [PDF]

Member Brame would not order reinstatement of the individual employees in the group in the absence of a showing by the General Counsel at the unfair labor practice hearing that the employees met the Respondent's enhanced qualifications, if any, for employment at the facility. The showing that the employees met the qulifications for the jobs for which they applied is an essential element of the General Counsel's prima facie case, Member Brame said. He does not find that the General Counsel has met this burden or, contrary to his colleagues, that the issue has been fully litigated. In Member Brame's view, the record is insufficient to establish the appropriateness of a reinstatement remedy as to the individual employees. If such a showing were made, he would find that the General Counsel has the burden in compliance of showing when the employees would have been hired by the Respondent in the absence of the unlawful discrimination and he would order backpay commencing only on that date.

Members Fox and Liebman noted that the Respondent has already litigated the issue of the qualifications of Melrose employees who were passed over in the Respondent's hiring decisions. They wrote: "Member Brame mistakenly treats the issue of whether the discriminatees would have met the Respondent's job qualifications as the General Counsel's burden of proof. Under Wright Line, however, it was, in fact the Respondent's burden to prove that it would not have hired these discriminatees, notwithstanding their union activities, because they did not meet the Respondent's qualifications for the job. The Respondent had the opportunity to raise this defense at the hearing and, as the judge found, it failed to meet its burden. Moreover, a respondent is not permitted to relitigate in a compliance proceeding issues that have been litigated in the underlying unfair labor practice proceeding. *** Of course, the issue of when discriminatees would have been hired but for the Respondent's unlawful conduct may be litigated in compliance."

Charge filed by Operating Engineers Local 465; complaint alleged violation of Section 8(a)(1) (3), and (5). Hearing at Beaufort, Sept. 15-19, 22-26, Oct. 28-31 and Nov. 6, 1997. Adm. Law Judge Albert A. Metz issued his decision March 9, 1998.

AVI Foodsystems, Inc. (9-RC-17019; 328 NLRB No. 59) Columbus, OH May 14, 1999. The Board affirmed the Regional Director's finding that a single-location unit of cafeteria workers employed by AVI Foodsystems, Inc. (AVI) at the Operations Center cafeteria located at the Defense Supply Center, in Columbus, Ohio, excluding cafeteria workers employed by AVI at the Officer's Club, is an appropriate unit for collective bargaining. The Board found, for the reasons set forth in the Regional Director's Decision and Direction of Election, that the single-location unit petitioned for by Bakery Workers Local 57 is presumptively appropriate and that the evidence introduced by AVI failed to rebut that presumption. AVI had asserted in its request for review of the Regional Director's decision that it introduced extensive evidence of frequent and regular employee transfers between the Operations Center and the Officer's Club, which are located less than a mile apart. [HTML] [PDF]

Bonham Heating & Air Conditioning, Inc. (7-CA-39325(1), et al.,7-RC-20978; 328 NLRB No. 61) Gladwin, MI May 19, 1999. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their intentions to unionize and by threatening to close its doors if it was forced to "go union," and violated Section 8(a)(3) and (1) by closing its plumbing business, slowing its bidding on other work, altering working conditions by changing locks and failing to issue new keys to some employees, and laying off three employees because of their union or protected activities. These actions preceded the December 19 election that resulted in two votes for the Union and three votes against, with two challenged ballots. As part of his remedy, the judge recommended a Gissel bargaining order. The Board ruled that a Gissel order was appropriate after examining the extensiveness of the unfair labor practices and the likelihood of their recurrence in the future. In particular, the Board noted that the Respondent made no claim that a Gissel order was not appropriate because of the passage of time or because of any intervening employee turnover - issues that have concerned some courts in denying enforcement of Gissel orders. And, the Board noted that it "fully considered the inadequacy of other remedies" and gave due consideration to the employees' Section 7 rights, "another concern expressed by some courts." [HTML] [PDF]

Charges filed by Plumbers Local 85; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Midland, MI, June 4-5, 1997. Decision issued Sept. 23, 1997 by Adm. Law Judge Richard H. Beddow Jr.

Custom Topsoil, Inc. (3-CA-21008; 328 NLRB No. 66) Cheektowaga and Buffalo, NY May 20, 1999. The administrative law judge found that the Respondent did not violate Section 8(a)(3) and (1) of the Act by limiting to two the number of applicants who could apply at one time in its office and by requiring applicants to complete a "Custom Topsoil" application in its office. Noting the judge failed to apply the Wright Line analysis, the Board agreed with these findings but only for the reasons stated in its decision. On the record, the Board concluded that the Respondent established that it would have imposed or enforced the application rules even in the absence of union activity. There was no evidence to establish that limiting the number of applicants into the office at one time was unlawfully designed to restrict or did restrict the ability of union applicants to apply for work, the Board stated. In addition, the Board rejected the General Counsel's arguments that the in-office application requirement was a "sham designed to cloak a discriminatory motive" for rejecting generic union job applications filed by a certain group of union members on a particular date. [HTML] [PDF]

Charge filed by Operating Engineer (IUOE) Local 17; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Buffalo, NY, Aug. 10-11, 1998. Decision issued by Adm. Law Judge Martin J. Linsky, Nov. 17, 1998.

Zeppelin Electric Co. (29-CA-20660; 328 NLRB No. 68) Holbrook, NY May 20, 1999. A Board majority overturned the administrative law judge's dismissal of a complaint alleging that the Respondent violated Section 8(a)(1) of the Act by threatening to kill employee Stephen Shanahan and Section 8(a)(3) by discharging Shanahan for engaging in union or protected concerted activity. Members Fox and Liebman ruled, in sum, that there was no basis for the judge's negative characterizations of Shanahan's salting activity or of his findings concerning the Respondent's motivations toward Shanahan's conduct. They determined that Shanahan's salting activity was a motivating factor in the Respondent's decision to terminate him and that the Respondent failed to establish that it would have discharged him absent that activity. Accordingly, the majority held that the Respondent violated the Act has alleged. Member Hurtgen, dissenting, determined that even if antiunion animus was the reason for the discharge, Shanahan would have been terminated for lawful reasons. [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 25; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn, NY, July 24, 1997. Decision issued by Adm. Law Judge Raymond P. Green, Oct. 6, 1997.

George Joseph Orchard Siding, Inc. (19-CA-25003; 328 NLRB No. 42) Yakima, WA April 30, 1999. Members Fox and Liebman affirmed the administrative law judge's finding, for the reasons stated by him, that the evaluation system implemented by the Respondent's Plant Manager Berndt, which disqualified 15 employees from further employment because they received a score of 7 or below, was motivated by Berndt's desire to rid the Respondent of the Union's main supporters. They also affirmed the judge's recommended remedy, which ordered reinstatement with backpay for the 15 employees who were on layoff and were not recalled to work, because their evaluation scores were below that cut-off point. Member Hurtgen, dissenting in part, would not order reinstatement for the three nonrecalled nonactivists, finding that the "remedy should extend only to the employees who were discriminated against because of their union activities." [HTML] [PDF]

Charge filed by the Teamsters; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Yakima in Oct. and Nov. 1997. Adm. Law Judge Clifford H. Anderson issued his decision June 18, 1998.

Tree-Free Fiber Co. (1-CA-34278; 328 NLRB No. 51) Augusta, ME May 10, 1999. Members Fox and Liebman, with Member Hurtgen dissenting, agreed with the administrative law judge that the Respondent is a successor to Statler Industries, Inc., with a statutory obligation to bargain with the Paperworkers International and its Locals 57 and 82 concerning the working conditions of its production and maintenance employees; and that the Respondent refused to recognize and bargain with the Union as the employees' collective-bargaining representative in violation of Section 8(a)(5) and (1) of the Act. Members Fox and Liebman reversed the judge and found that the employees working in the classification of "team leader" are employees within the meaning of Section 2(3) of the Act and that they have a sufficient community of interest to require their inclusion in the production and maintenance unit. [HTML] [PDF]

Charge filed by Paperworkers International and its Locals 57 and 82; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Augusta, July 21-24, 1997. Adm. Law Judge Bruce D. Rosenstein issued his decision Nov. 26, 1997.

Security U.S.A. (32-CA-14873, 15016; 328 NLRB No. 49) Mountain View, CA May 10, 1999. Members Hurtgen and Brame affirmed Administrative Law Judge David Heilbrun's conclusion that the Respondent did not violate Section 8(a)(1) of the Act by discharging security officer Javier Echevarria on September 7, 1995. The majority assumed arguendo that the General Counsel presented sufficient evidence to support an inference that a reason for Echevarria's discharge was his protected concerted activity, i.e., his participating in fellow employee Gutierrez' unemployment hearing. However, it found that the Respondent showed that it would have discharged Echevarria even in the absence of such activity because his unavailability for work in August and September caused difficulties for Respondent including maintaining a full complement for security coverage and incurring excessive overtime costs. [HTML] [PDF]

In dissent Member Fox said: "I would find that the General Counsel established that the Respondent was determined to fire Echevarria in retaliation for his acting in concert with fellow employees over employment disputes, and that it employed the frequent offer of short term jobs and careful logging of his responses turning down the offers to accomplish this. On the basis of the same evidence, I would find that the Respondent failed to show that it would have terminated Echevarria absent his protected activities."

On January 20, 1998, the Board remanded the proceeding to an administrative law judge to determine whether the Respondent's failure to transfer Echevarria from the position of security officer to the position of police officer violated Section 8(a)(1). The Respondent filed no exceptions to the finding that its failure to transfer Echevarria violated Section 8(a)(1).

Charges filed by Dave Gutierrez and Javier Echevarria, individuals; complaint alleged violation of Section 8(a)(1). Adm. Law Judge David G. Heilbrun issued his decision April 29, 1997. Adm. Law Judge Mary Miller Cracraft issued her supplemental decision March 12, 1998.

Illinois Heating and Air Conditioning, Inc. d/b/a Kranz Heating & Cooling (13-CA-36388; 328 NLRB No. 52) Villa Park, IL May 11, 1999. The Board upheld the administrative law judge's decision that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide Sheet Metal Workers Local 265 necessary and relevant information it requested on June 13, 1997 regarding the Respondent's relationship with another company. The judge found that the Union demonstrated that it had an objective factual basis for believing that the Respondent and a new company were alter egos or joint employers and therefore constituted a single employer for purposes of enforcing the collective-bargaining agreement. The Board modified the judge's recommended Order to require the Respondent to provide the Union with the information that it requested, without the necessity of making a new request. [HTML] [PDF]

Charge filed by Sheet Metal Workers Local 265; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago, July 22-23, 1998. Adm. Law Judge Bruce D. Rosenstein issued his decision Dec. 15, 1998.

Central Transport, Inc. (8-RC-15004; 328 NLRB No. 60) Cleveland, OH May 12, 1999. Chairman Truesdale and Member Hurtgen, with Member Fox dissenting, concluded that the Employer established a controlling history of bargaining on a multiemployer basis, and has accordingly rebutted the presumption in favor of single employer bargaining units; and therefore dismissed the petition filed by Teamsters Local 407 seeking a single employer bargaining unit of the Employer's dock and yard employees at the employer's facility in Cleveland, Ohio. [HTML] [PDF]

Niles Company (1-CA-33991; 328 NLRB No. 58) Boston, MA May 13, 1999. Agreeing with the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) of the Act by promulgating, maintaining, and enforcing a policy which prohibited its employees from discussing salary and payroll issues with other employees, revoking a pay raise previously promised to Jeffrey Cuatto because he engaged in the protected concerted activity of discussing salaries with his fellow employees, and reprimanding and threatening employees that violation of the policy prohibiting discussion of salary and payroll issues would result in termination. The Board also agreed with the judge's determination that the record does not support an award of backpay to Henry Thomas. It found no basis for awarding Thomas backpay on the theory that he was subsequently denied that raise as a consequence of the Respondent's unlawful conduct vis-à-vis Cuatto. [HTML] [PDF]

Charge filed by Henry Thomas, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Boston on Dec. 13, 1996. Adm. Law Judge Thomas R. Wilks issued his decision March 18, 1997.

Global Industrial Services, Inc. (3-CA-9273; 328 NLRB No. 34) Owego, NY April 30, 1999. The Board affirmed the administrative law judge's recommended Order and dismissed complaint allegations that the Respondent was a successor to International Service Systems (ISS) in providing janitorial services at the Loral facility in Owego, New York and that it refused to hire the former ISS employees in order to discourage union membership and to avoid the successorship obligation in violation of Section 8(a)(1), (3), and (5) of the Act. The judge found that the General Counsel failed to establish his initial burden under Wright Line that the union membership of ISS employees was a motivating factor in the Respondent's failure to employ them. [HTML] [PDF]

Charge filed by Service Employees Local 200B; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Binghamton, Sept. 12-13, 1995. Adm. Law Judge Joel P. Biblowitz issued his decision Nov. 28, 1995.

American Postal Workers (7-CB-10581(P); 328 NLRB No. 37) Detroit, MI April 30, 1999. The Board found, contrary to the administrative law judge, that the Respondent violated Section 8(b)(1)(A) of the Act by interrogating Sarah Johnson regarding her union membership in a manner that implies that her lack of membership may affect the Union's handling of her grievance; and by willfully misinforming Johnson about the status of her grievance. Johnson resigned her membership in the Respondent in 1988 and has paid neither dues nor service fees to the Respondent since then. [HTML] [PDF]

Charge filed by Sarah Johnson, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Detroit on May 13, 1997. Adm. Law Judge Richard A. Scully issued his decision March 24, 1998.

Cooper Industries (5-CA-24746, et al., 5-RC-14076; 328 NLRB No. 21) York, PA April 30, 1999. The Board considered the administrative law judge's conclusion that the Respondent's unfair labor practices warranted issuance of a remedial bargaining order based on proof that the Steelworkers had obtained valid authorization cards from a majority of unit employees, and decided that, given the "long and unjustified" delay of the case here at the Board, it will not impose a Gissel remedy in lieu of directing a second election because such an order would likely be unenforceable. The Board decided however that an additional remedy is warranted "in order to dissipate as much as possible of the lingering effects of the Respondent's unfair labor practices, and to ensure that a fair election can be held." Specifically, it ordered the Respondent to supply to the Union, on a request made within 1 year from the date of its decision, the names and addresses of all current unit employees. The Board said: "The Board's delay in acting in this case, although unfortunate, was no more the fault of the Union or the employees who were denied a fair opportunity to choose whether they desire Union representation than it was of the Respondent. Our Order will afford the Union 'an opportunity to participate in restoration and reassurance of employee rights by engaging in further organizational efforts, if it so chooses, in an atmosphere free of further restraint and coercions.'" United Dairy Farmers Cooperative Assn., 242 NLRB 1026, 1029 (1979), enfd. in relevant part 633 F.2d 1954 (3d Cir. 1980). [HTML] [PDF]

The Board remanded Case 5-RC-14076 to the Regional Director to open and count those ballots to which the challenges were overruled and to issue a revised tally of ballots. If the revised tally of ballots shows that the Union won the election, the Regional Director shall issue a certification of representative. If the revised tally shows that the union lost the election, the Regional Director shall direct a second election.

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at York, Aug. 2-4, 7-11, and 16-18, 1995. Adm. Law Judge Frank H. Itkin issued his decision March 20, 1996.

County Window Cleaning Co. (2-CA-29418, 2-RC-21690; 328 NLRB No. 26) White Plains, NY April 30, 1999. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Giovanni Valencia and Duvan Arteaga because of their activities for Service Employees Local 2; and violated Section 8(a)(1) by coercively interrogating its employees, promising them a pay raise, insurance, and other improvements in order to persuade them to abandon support for Service Employees Local 2, conditioning their employment upon their union support, and soliciting its employees to sign a letter withdrawing their previous authorizations of the Union to represent them. [HTML] [PDF]

Relying on A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995), enfd. 134 F.3d 50 (2d Cir. 1997), Members Fox and Liebman ordered the Respondent to reinstate undocumented alien Arteaga upon condition and to make him whole, noting that the Respondent employed Arteaga with knowledge of his undocumented status and that it did not discharge him because of that status, but because of his protected activities. Members Fox and Liebman, in overruling the challenge to Arteaga's ballot, cited NLRB v. Kolkka, 160 LRRM 2810 (9th Cir. 1999), stating: "In this connection, we would not impose new voter eligibility criteria on an undocumented alien who is the victim of an unfair labor practice that results in a loss of employment, as our colleague does in his concurrence. Quite unlike an employee whose community of interest becomes an issue as a result of a lawful layoff, Arteaga would have been otherwise employed at the time of the election but for the unlawful conduct perpetrated against him."

Member Hurtgen, concurring and dissenting in part, found it inappropriate to award backpay to Arteaga for periods when he cannot establish his lawful entitlement to be present and employed in the U.S. In this regard, he adopted the view set forth in former Member Cohen's dissenting opinion in A.P.R.A. And, while he agrees that Arteaga is eligible to vote in the election, he does not "apply a blanket rule permitting unlawfully discharged undocumented aliens to vote." Member Hurtgen wrote: "In my view, the fact that such undocumented aliens retain the status of statutory employee, standing alone, does not dispose of the question of whether they have a community of interest with the unit employees. That determination depends upon whether the undocumented alien has a reasonable expectation of working in the unit." He found that Arteaga has demonstrated a reasonable expectation of obtaining legal status within a reasonable period of time, and he is eligible to vote in the election.

Charge filed by Service Employees Local 2; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York on Nov. 4, 1996. Adm. Law Judge Steven Fish issued his decision July 16, 1997.

Merit Electric Co. (12-CA-16363, et al.; 328 NLRB No. 29) Largo, FL April 30, 1999. Members Fox and Liebman agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire Frank Roper because of his union activities. The Board had in 1997 remanded the proceeding to the judge to make specific findings regarding the credibility of vice president and chief operating officer Tom Wooten's testimony concerning why he did not hire Roper. 325 NLRB No. 19. Wooten testified that he relied on Roper's poor work habits that he observed 18 years earlier and his beliefs that Roper would be dissatisfied with a 50-percent pay cut and would need extensive retraining due to his 18-year absence from hands-on work in the trade. In this decision, Members Fox and Liebman found that the General Counsel made a very substantial showing that the Respondent's animus against Roper's union support was a motivating factor in its decision not to hire him. They rejected Wooten's asserted reasons and found that the Respondent failed to meet its Wright Line burden by showing that it would have refused to hire Roper even absent his protected activities. [HTML] [PDF]

Member Hurtgen, dissenting, agreed that the General Counsel established a prima facie case that Roper's union activity was a reason for the Respondent's decision not to hire him. However, he concluded that the Respondent rebutted that prima facie case. Alternatively, at the very least, Member Hurtgen would remand to the judge for clarification of Wooten's claim that he did not hire Roper because he believed that he would be a dissatisfied employee.

Yorkaire, Inc. (4-CA-16100, et al.; 328 NLRB No. 38) York, PA April 30, 1999. The Board ordered the Respondent to make whole 10 individuals and various fringe benefit funds by paying amounts totaling $73,025.26. In so doing, the Board held that interest should not be tolled due to the time spent in processing this case, that the Respondent must make the payments set forth in the compliance specification including interest accrued on all the amounts to the date of payment, and that replacements for the unfair labor practice strikers are entitled to restitution. This compliance proceeding follows the Board's 1989 findings that the Respondent violated Section 8(a)(5) and (1) of the Act by changing the terms and conditions of employment of its sheet metal workers and withdrawing recognition from Sheet Metal Workers Local 19 as their bargaining representative. The Board also found that as a consequence of the changes some of the sheet metal workers engaged in an unfair labor practice strike, and replacements were hired. 297 NLRB 401. On December 6, 1990, the U.S. Court of Appeals for the Third Circuit enforced the Board's Order in full. NLRB v. Yorkaire, Inc., 922 F.2d 832. The court-enforced order, requires the Respondent to make whole the sheet metal workers and various funds. [HTML] [PDF]

Vincent Industrial Plastics (25-CA-23311, et al.; 328 NLRB No. 40) Henderson, KY April 30, 1999. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(5) and (1) of the Act by eliminating timeclocks for press operators and by refusing on or after February 16, 1995 to recognize and bargain with Chemical Workers Local 1032. The Board found that the unilateral elimination of timeclocks was a significant and substantial change in employees' terms and conditions of employment and that Respondent is precluded from relying on a decertification petition received by it on February 16, 1995 to assert a good-faith doubt of the Union's majority status because a causal relationship existed between its unfair labor practices and the petition. Further, the Board agreed with the judge that the Respondent violated Section 8(a)(1) by interrogating an employee concerning support for a possible strike, and Section 8(a)(3) by issuing a disciplinary warning to union steward and negotiating committee member Gloria Chester and discharging the president of the Union because of their union activities. [HTML] [PDF]

In a reversal of the judge, the Board held that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing a change in its attendance policy, finding that the parties were admittedly not at impasse in their negotiations on July 1, 1994 and no economic exigencies compelling prompt action existed.

Charges filed by Chemical Workers Local 1032; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Evansville, May 22-24 and Aug. 9-10, 1995. Adm. Law Judge Robert T. Wallace issued his decision March 15, 1996.

Valmont Industries, Inc. (16-CA-18814; 328 NLRB No. 41) Brenham, TX April 30, 1999. Members Fox and Liebman affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing written corrective actions to employees Edgar Lewis and Michael Sharp for engaging in a brief conversation near Lewis' work station, and by suspending and discharging Lewis for soliciting and talking to leadman Lonny Hutchinson. Member Hurtgen, dissenting, found that the General Counsel did not establish a prima facie case in both respects. Members Fox and Liebman agreed with the judge, for the reasons set forth by him, that the Respondent issued warnings to Lewis and Sharp because it believed that they were engaged in union activity. And, since the likelihood of Lewis' engaging in conversation about the Union had previously been the subject of management comment, Members Fox and Liebman inferred that the Respondent's discharge of Lewis was motivated by its hostility to what it believed were his pro-Union sentiments. [HTML] [PDF]

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brenham, Feb. 11-12, 1998. Adm. Law Judge George Carson II issued his decision June 22, 1998.

The Boeing Company (19-RC-13151; 328 NLRB No. 25) Puget Sound, WA April 29, 1999. Chairman Truesdale and Member Liebman affirmed the Regional Director's decision, as modified, that the Employer's firefighters are not guards within the meaning of Section 9(b)(3) of the Act, and remanded the case to him for further appropriate proceedings. In his decision, the Regional Director granted the Petitioner's (Fire Fighters International) request to hold an election among 107 firefighters who are presently represented by the Intervenor (Plant Guard Workers Local 5) in a larger unit composed of both firefighters and security guards. The Board originally certified a unit composed of both the Employer's firefighters and its security guards in Boeing Airplane Co., 116 NLRB 1265 (1956). In this decision on review, Chairman Truesdale and Member Liebman concluded for reasons different from those provided by the Regional Director, that the duties and functions undertaken by the Employer's firefighters during periods when other members of the Employer's work force are on strike do not transform the firefighters' status into that of statutory guards. [HTML] [PDF]

Member Brame, dissenting, would dismiss the petition because he disagrees with the Board's interpretation of Section 9(b)(3) here and in Burns Security Services, 300 NLRB 298 (1990), enf. denied 942 F.2d 519 (8th Cir. 1991). He believes that the Board should make "guard" determinations in conformity with the construction of Section 9(b)(3) set forth by the U.S. Court of Appeals for the Eighth Circuit in McDonnell Aircraft Co. v. NLRB, 827 F.2d 324 (8th Cir. 1987) and BPS Guard Services, Inc. v. NLRB, 942 F.2d 519 (8th Cir. 1991), i.e., that employees-even without security-type functions-are considered guards where they have "the obligation to protect the employer's property combined with the responsibility to enforce rules against fellow employees." McDonnell, supra, 827 F. 2d at 326. Applying that standard, Member Brame would find that the present duties and responsibilities of the Employer's firefighters require their continued inclusion in the existing guard unit.

Hovey Electric, Inc. and Christian Labor Association Local 18 (7-CA-40164, 7-CB-11532; 328 NLRB No. 35) Midland, Portage, and Harbor Beach, MI April 30, 1999. As recommended by the administrative law judge, the Board dismissed complaint allegations that Respondents violated Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act when on August 13, 1997, Respondent Hovey granted recognition premised upon Section 9(a) of the Act to Christian Labor Association (CLA), and entered into and maintained a collective-bargaining agreement with CLA that includes a union-security clause, withheld from the wages of its employees, and transmitted to CLA dues and initiation fees, all at a time when CLA did not represent a majority of Respondent Hovey's employees and was not the lawfully recognized exclusive collective-bargaining representative of the employees. In adopting the judge's findings that the Respondents entered into a collective-bargaining agreement under Section 8(f) on August 13, the Board agreed that the judge appropriately considered evidence of the parties' intent with respect to the recognition clause. Member Brame, in adopting the judge's decision, does not rely on Oklahoma Installation Co., 325 NLRB No. 140 (1998). [HTML] [PDF]

Charges filed by Electrical Workers IBEW Local 131; complaint alleged violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2). Hearing at Kalamazoo on Jan. 28, 1998. Adm. Law Judge Bruce D. Rosenstein issued his decision June 15, 1998.

Eugene Iovine, Inc. (29-CA-20057; 328 NLRB No. 39) Farmingdale, NY April 30, 1999. Members Fox and Liebman agreed, for the reasons set forth by the administrative law judge, that the Respondent's unilateral reduction of its unit employees' hours of work violated Section 8(a)(5) and (1) of the Act. The judge found that the Respondent failed to establish a past practice and further failed to establish that its 1996 reduction of hours was consistent with its conduct in prior years. Also, the Respondent's decision to reduce employee hours admittedly involved management discretion. Members Fox and Liebman noted that the Board and the courts have consistently held that such discretionary acts are, as stated by the judge, "precisely the type of action over which an employer must bargain with a newly-certified Union." Members Fox and Liebman found that here, unlike American Diamond Tool, Inc., 306 NLRB 570 (1992), cited by the Respondent in its brief in support of exceptions, the Union did not waive its right to bargain over the Respondent's unilateral action. [HTML] [PDF]

Member Hurtgen, dissenting, found that "the Respondent here followed the past practice of reducing hours when work was down. Since the General Counsel has not shown a change, he has not shown a violation."

Charge filed by Electrical Workers IBEW Local 3; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on Jan. 26, 1998. Adm. Law Judge Michael A. Marcionese issued his decision March 10, 1998.

United States Can Co., a wholly owned subsidiary of Inter-American Packaging, Inc. (13-CA-27510; 328 NLRB No. 45) Chicago, IL April 30, 1999. Chairman Truesdale and Member Fox ordered the Respondent to make whole 28 individuals by paying them backpay totaling $1,378,307, and to make whole Helen Rae by paying her $117,436 minus the excess amount of vacation pay that is determined in compliance to have been improperly awarded to her. Chairman Truesdale and Member Fox found that the judge erred by awarding vacation backpay to Rae in excess of 5 weeks for the first quarters of 1989, 1990, and 1991 and remanded to the Regional Director for recomputation of the backpay amount to be awarded her. In accord with Board and judicial precedent cited and fully discussed in the judge's decision, Chairman Truesdale and Member Fox affirmed the judge's conclusion that the Respondent is not entitled to an offset for retirement benefits and supplemental unemployment benefits paid to discriminatees during the backpay period. The citation for the Board's decision in the underlying unfair labor practice proceeding is 305 NLRB 1127 (1992), enfd. 984 F.2d 864 (7th Cir. 1993). [HTML] [PDF]

Member Hurtgen, concurring in part and dissenting in part, found that the judge misapplied the evdentiary burden in concluding that each discriminatee would have transferred to other facilities if afforded the right to transfer under the unlawfully repudiated contractual Interplant Job Opportunity Program. The judge based his conclusion on the fact that the Respondent failed to show that any of the discriminatees would have declined an offer of transfer. Member Hurtgen said that the burden of producing evidence should be on the employees and the General Counsel. Here, and consistent with Member Hurtgen's view, there was employee testimony on the point and the judge credited their testimony that each would have accepted transfers to designated facilities if offered. Thus, he found sufficient evidence to uphold the judge's findings. Member Hurtgen also disagreed with the judge's failure to offset, from his backpay calculations, retirement benefits and supplemental unemployment benefit payments.

Chicagoland Television News, Inc. (13-RC-19844; 328 NLRB No. 48) Oak Brook, IL April 30, 1999. The Board adopted the hearing officers' findings and overruled Petitioner's Objections 3, 4, 6, and 7, but, contrary to the hearing officer, it overruled Petitioner's Objection 1 and certified that a majority of the valid ballots cast by the employees in bargaining unit A were not for the Petitioner, American Federation of Television and Radio Artists (AFTRA). In Objection 1, the Petitioner asserted that the Employer engaged in objectionable conduct by holding a 12-hour "party" on the day before the election at which it provided free alcoholic and nonalcoholic beverages, food, and entertainment, and that employees were told to attend on worktime. The Petitioner further asserts that the Employer conducted a vote-no campaign during the party. The Board in 1998 certified the Petitioner as the exclusive collective-bargaining representative of the Employer's employees in unit B (composed of engineering and operations department employees). [HTML] [PDF]

North Manchester Foundry, Inc. (25-RC-9833; 328 NLRB No. 50) North Manchester, IN May 6, 1999. The Board reversed the Regional Director's decision with respect to the issue on review, vacated the direction of election, and remanded the case to the Regional Director to reopen the hearing to allow the parties to present witnesses and documentary evidence in support of their respective positions regarding the placement of the pattern room, laboratory, and south core room employees, and to issue a supplemental decision. The Regional Director had found appropriate a unit of the Employer's production and maintenance employees and plant clericals, and directed that 13 pattern room, laboratory, and south core room employees be permitted to vote subject to challenge. The Board granted the Employer's request for review, finding that the Regional Director erred in refusing to permit the Employer to introduce certain witnesses at the scheduled preelection hearing in support of its contention that the disputed employees do not share a community of interest with the production and maintenance employees. [HTML] [PDF]

Carleton College (18-CA-14336; 328 NLRB No. 31) Northfield, MN April 30, 1999. Members Fox and Liebman upheld the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to extend a 1996-1997 contract to adjunct professor Karl Diekman because of his union activities on behalf of the Adjunct Faculty Committee, a statutory labor organization. In so concluding, they did not rely on the judge's statement that Diekman's threat to withhold reporting students' grades was akin to a sit-down or plant takeover. Member Brame, concurring in the finding of a violation, wrote separately to explain his reasons. [HTML] [PDF]

Charge filed by Karl Diekman, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Minneapolis, May 19-21, 1997. Adm. Law Judge William J. Pannier III issued his decision Nov. 13, 1997.

Sheet Metal Workers Local 19 (Delcard Associates, Omni Mechanical, and Joseph Strong, Inc.) (4-CB-6783, et al., 4-CC-2005-1; 328 NLRB No. 20) Philadelphia, PA April 26, 1999. The Board affirmed its original Order, reported at 316 NLRB 426 (1995), as subsequently modified and enforced by the U.S. Court of Appeals for the Third Circuit, 154 F.3d 137 (3d Cir. 1998), and ordered the Respondent to cease and desist from restraining and coercing employees of the Charging Parties-but not of other employers-in the exercise of their Section 7 rights. The court affirmed the Board's findings that the Respondent violated the Act by its own conduct but rejected the Board's finding that the Respondent was also liable for the actions of several other unions. In its prior decision, the Board affirmed the administrative law judge's conclusions that the Respondent violated Section 8(b)(1)(A) by engaging in picket line misconduct at jobsites occupied by the Charging Parties, that it violated Section 8(b)(4)(B) by engaging in secondary picketing in the course of a labor dispute with Charging Party Strong, and that, with regard to the latter conduct, the Respondent was involved in a joint venture with several other unions and therefore was also liable for their conduct. The Board adopted the judge's recommended broad order. [HTML] [PDF]

Transportation Repair & Service (13-CA-34794, 13-RC-19517; 328 NLRB No. 18) Hodgkins, IL April 28, 1999. The Board upheld the administrative law judge's findings, with certain modifications, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain collectively with Machinists Local 701; violated Section 8(a)(3) and (1) by discriminatorily discharging Edward Monreal; and violated Section 8(a)(1) by threatening to close its facility, threatening employees with wage reduction, loss of benefits, and reclassification, and coercively interrogating employees about their support for the Union. The Board modified the judge's recommended Order to reflect its conclusion that the serious and pervasive nature of the Respondent's unlawful conduct warranted the imposition of a broad cease-and-desist order. In ordering the Respondent to bargain with the Union, as recommended by the judge, the Board found that the general propositions for which he cited Be-Lo Stores, 318 NLRB 1 (1995), are not affected by the court's denial of enforcement of the bargaining order in that case. Be-Lo Stores v. NLRB, 126 F. 3d 268 (1997). The Board sustained the Union's election Objections 1, 2, and 3 because they paralleled the unlawful threats found. [HTML] [PDF]

Charge filed by Machinists Local 701; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Chicago, June 9-11, 1997. Adm. Law Judge Arthur J. Amchan issued his decision Sept. 5, 1997.

Extruded Metals, Inc. (7-CA-39934(1); 328 NLRB No. 23) Belding, MI April 27, 1999. Affirming the administrative law judge's decision, the Board held that the Respondent threatened employees with the loss of their jobs if they did not vote "yes" on the Respondent's contract proposals made to Auto Workers Local 4 in violation of Section 8(a)(1) of the Act. [HTML] [PDF]

Charge filed by Auto Workers Local 4; complaint alleged violation of Section 8(a)(1). Hearing at Grand Rapids on Feb. 5, 1998. Adm. Law Judge John H. West issued his decision April 24, 1998.

VJNH, Inc. d/b/a Vestal Nursing Center (3-CA-21018, 3-RC-10644; 328 NLRB No. 16) Vestal, NY April 28, 1999. The administrative law judge found, with Board approval, that the Respondent violated the Act and engaged in objectionable conduct affecting the results of an election held in Case 3-RC-10644 by suspending four employees and directing employees, under explicit and implicit threat of discipline, to refrain from discussing the Union or engaging in Union and/or other protected activities while at work, to inform Respondent of contacts from union supporters and about the union and/or protected concerted activities of other employees, and to refrain from using the second-floor pay telephone, thereby eliminating a benefit or privilege previously enjoyed by employees. The Board set aside the election held March 26, 1998 (Service Employees Local 200A lost 71-69) and directed that a second election be conducted. [HTML] [PDF]

Charge filed by Service Employees Local 200A; complaint alleged violation of Section 8(a)(1). Hearing at Binghamton, June 1-4, 1998. Adm. Law Judge Wallace H. Nations issued his decision Oct. 9, 1998.

Conagra, Inc. and/or Conagra Grain Processing Companies (24-CA-6856, 6881; 328 NLRB No. 24) San Juan, PR April 29, 1999. On remand from the U.S. Court of Appeals for the D.C. Circuit, the Board dismissed the complaint allegation that the Respondents violated the Act by conditioning the provision of requested financial information on the withdrawal of the Union's unfair labor practice charge alleging the unlawful withholding of such information. The Board found in 1996 that the Respondents violated Section 8(a)(5) and (1) of the Act by failing to provide to the Congreso De Uniones Industriales De Puerto Rico during contract negotiations requested financial information and conditioning the release of the requested information on the Union's withdrawing its charge. 321 NLRB 944. The Court however rejected the Board's finding that the Respondents were obligated under law to provide the financial information and remanded the matter to the Board to consider whether its finding that the Respondents illegally conditioned the provision of information on the withdrawal of the related charge may stand in view of the court's opinion. The Board decided: "Because the Respondents were not obligated to provide the information, we find that the Respondents' setting conditions on the provision of the information was not a refusal to bargain in good faith with the Union. In this regard, we find that the Respondents' conduct was akin to an offer of settlement of an unfair labor practice charge. It is well-established that such offers do not violate the Act." [HTML] [PDF]

The Denver Post Corp. (27-CA-14513, et al.; 328 NLRB No. 22) Denver, CO April 29, 1999. Members Fox and Liebman found, contrary to the administrative law judge, that the Respondent failed to carry its Wright Line burden by rebutting the General Counsel's prima facie case and proving that it would have discharged pressman Donald Grabhorn even absent his activities for Graphic Communications Local 22, and that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Grabhorn. Member Hurtgen, dissenting, would adopt the judge's finding that the Respondent lawfully discharged Grabhorn. In so doing, he noted that his colleagues accept the judge's credibility resolutions including his finding that Pressroom Manager Dan Armand testified credibly that he discharged Grabhorn for negligence. "There is no rational reason for the acceptance of credibility findings and the rejection of this particular finding," Member Hurtgen added. [HTML] [PDF]

Charges filed by Graphic Communications Local 22; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Denver, Dec. 8-11, 1997. Adm. Albert A. Metz issued his decision May 18, 1998.

JASCO Industries (29-CA-21774; 328 NLRB No. 27) Central Islip, NY April 30, 1999. The Board found that the Respondent unlawfully refused to bargain with Food and Commercial Workers Local 348-S since February 11, 1998, rather than November 17, 1997, as found by the administrative law judge; and that a 6-month extension of the certification year is appropriate, disagreeing with the judge that an additional full 1-year period is appropriate. The Board concluded that the extended certification year began on March 18, 1997 when face-to-face negotiations began, and that the Union enjoyed an irrebuttable presumption of majority status despite a rival petition by Production Workers Local 400 in January 1998 or the submission of an employee petition to the Respondent in November 1997. The Board in 1996 had ordered the Respondent to bargain on request with the Union following the Respondent's initial refusal to bargain. 322 NLRB No. 100 (not included in bound volumes). The Board stated that the initial period of the certification would be construed as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962). [HTML] [PDF]

Charge filed by Food and Commercial Workers Local 348-S; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on Aug. 26, 1998. Adm. Law Judge Howard Edelman issued his decision Jan. 21, 1999.

Red Coats, Inc. (5-CA-25110, 25639; 328 NLRB No. 28) Bethesda, MD April 30, 1999. The Board affirmed, as modified, the administrative law judge's finding that the Respondent violated Section 8(a)(5) of the Act by withdrawing recognition from Service Employees Local 82. In June 1994, the Respondent extended voluntary recognition to the Union as the collective-bargaining representative of the cleaning employees working in three commercial office buildings in Washington, D.C., but granted that recognition in three separate, single-location units. Thereafter, the Respondent and the Union engaged in collective-bargaining negotiations for approximately 5 months. The Respondent declared an impasse at the December 14, 1994 negotiating session, and refused to engage in further negotiations. On September 6, 1995, the Respondent withdraw its recognition of the Union, claiming that the single-location bargaining units were inappropriate. [HTML] [PDF]

The judge found that the Respondent's defense to the withdrawal of recognition allegations were time barred by Section 10(b) because it did not show that the units had become inappropriate due to a change in circumstances within the 6-month period preceding the filing of the charge. The Board found it unnecessary to pass on the judge's reliance on Section 10(b), holding that the Respondent is equitably estopped from challenging the appropriateness of the units it agreed to when it extended voluntary recognition. Assuming arguendo that it is obligated to make a unit determination in each case, as argued by the Respondent, the Board found that, in the circumstances here, the challenged units are appropriate for bargaining. The Board further held that where, as here, "a unit has been agreed to by the parties, and is not prohibited by the statute, such a unit is appropriate under the Act, regardless of whether the Board would have certified such a unit ab initio."

Charges filed by Service Employees Local 82; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Washington, D.C. on Feb. 12, 1997. Adm. Law Judge Irwin H. Socoloff issued his decision June 4, 1997.

Atlantic Limousine, Inc. (4-CA-21505, et al.; 328 NLRB No. 33) Atlantic City, NJ April 30, 1999. Affirming the administrative law judge, Members Fox and Liebman ordered the Respondent to pay Louis Babich, Glenn Gerrity, Victor Jenkins, Joseph Pizzutillo, and Henry Purcell backpay totaling $50,775.70. In so doing, they aagreed with the judge's approval of the backpay specification as applied to Babich; that Jenkins' lack of interim earnings for the backpay period of May 31, 1993 through January 17, 1994, was not indicative of an unreasonable search for employment related to his care for his mother who was suffering from the effects of strokes; and that an admission of underreporting tips to the Internal Revenue Service (IRS) does not preclude such tips from being considered and included in a backpay award. The judge awarded the tip-income amount set out in the specification and recommended that a copy of the Board's decision be furnished to the IRS. Members Fox and Liebman found that the judge's analysis accords with Board precedent. See Hacienda Hotel & Casino, 279 NLRB 601 (1986). Finding merit in the Acting General Counsel's cross exceptions, Members Fox and Liebman modified the judge's calculation of backpay for Gerrity. [HTML] [PDF]

Member Hurtgen, dissenting in part, would not order backpay for Jenkins for the second half of 1993 and would not award to Jenkins, Purcell, and Gerrity the tip-income amount set out in the backpay specification. The fact that Jenkins had a personal reason for imposing a limitation on the times at which he would work and the times during which he would search for work "is not a basis for making Respondent pay for the consequences of that limitation," Member Hurtgen said. He would not permit Jenkins, Purcell, and Gerrity to now claim that they earned tip income, noting the judge's finding that, while employed by the Respondent, they failed to report the amount of tip income on their IRS tax returns. Even assuming that the employees are now entitled to claim tip income, the judge's calculations are in error because he did not resolve the disparity between the employee claims and Respondent claims, Member Hurtgen reasoned.

Hearing at Philadelphia on Oct. 16, 1997. Adm. Law Judge Richard H. Beddow, Jr. issued his supplemental decision Feb. 26, 1998.

Hotel Services Group, Inc. (12-RC-8170; 328 NLRB No. 30) Palm Beach Gardens, FL April 28, 1999. The Board found, contrary to the Regional Director, that the unit petitioned for by Teamsters Local 769 of Licensed Massage Therapists (LMTs) is not appropriate because they do not possess a separate community of interest apart from the Employer's other licensed personnel. The Board wrote: "In rejecting the petitioned-for unit, we do not suggest a precise unit finding. Rather, we direct that the petition be dismissed without prejudice to the Petitioner's right to refile the petition in another unit." The Employer operates a hotel, resort, and spa. By order dated January 13, 1998, the Board granted the Employer's request for review with respect to the appropriateness of the petitioned-for unit. The Employer contended that the unit should include, at a minimum, its 42 LMTs and all other licensed personnel, i.e., 8 estheticians, 12 nail technicians, and 7 hairstylists/cosmetologists because they share a strong community of interest with one another. [HTML] [PDF]

New World Communications of Kansas City d/b/a WDAF Fox 4 (17-RC-11675; 328 NLRB No. 10) Kansas City, MO April 7, 1999. Chairman Truesdale and Member Liebman found that temporary employee Amanda Jahn's tenure status was uncertain on November 13, 1998, the payroll period eligibility date, and accordingly agreed with the hearing officer that Jahn was eligible to vote and overruled the challenge to her ballot. The case was remanded to the Regional Director to open and count Jahn's ballot and to issue the appropriate certification. Member Brame, dissenting, would find Jahn was a temporary employee with a fixed termination date on the eligibility date and sustain the challenge to her ballot. The tally of ballots for the election held January 7, 1999 among all on-air personnel including anchors, anchor/reporters, and reporters, shows 15 for and 15 against AFTRA, with l challenged ballot. [HTML] [PDF]

Dependable Storage, Inc. (13-CA-32926; 328 NLRB No. 6) Sauk Village, IL April 15, 1999. Unlike the administrative law judge who found that the Respondent violated Section 8(a)(1) of the Act by granting employees wage increases in order to undermine their support for Teamsters Local 714 and to influence the outcome of a pending representation election, the Board found that the allegation is barred by Section 10(b) and dismissed the complaint. The original charge dated October 24, 1994 alleged that the Respondent refused to bargain in good faith by engaging in surface bargaining in violation of Section 8(a)(5) and (1). The amended charge, filed May 22, 1995, alleged that the Respondent granted a wage increase in June 1994 as an inducement for the employees to vote against the Union in violation of Section 8(a)(1). The complaint alleged an 8(a)(5) violation and an 8(a)(1) violation. With respect to the latter, the complaint tracked the language of the amended charge. The judge dismissed the 8(a)(5) allegation, but found that the otherwise untimely allegations of the amended charge concerning the wage increase were "closely related" to the allegations of the original and timely filed charge. The Board disagreed. [HTML] [PDF]

Charge filed by Teamsters Local 714; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago on March 25, 1996. Adm. Law Judge Michael O. Miller issued his decision May 31, 1996.

Pan American Electric, Inc. (26-CA-16607 (formerly Cases 15-CA-13057, 13060); 328 NLRB No. 7) Nashville, TN April 16, 1999. The Board agreed with the administrative law judge, as amplied in its decision, that the Respondent engaged in multiple violations of Section 8(a)(3) and (1) of the Act including refusing to hire or to consider for hire individuals at its Levi-Strauss and North Monroe Hospital projects and denying Johnnie Smith overtime all because of their union activities, membership, or affiliations; posting a "Not Hiring" sign on the job trailer at the North Monroe Hospital project; and interrogating job applicants regarding their union membership. The judge found, with Board approval, that the alleged discriminatees sought work with the Respondent, a nonunion contractor, in order to organize other employees on the job pursuant to a "salting" program devised by their Union, the Electrical Workers IBEW International and its Locals 480 and 446; and that the applicants were statutory employees irrespective of their status as paid union officials, pursuant to NLRB v. Town & Country Electric, 516 U.S. 85 (1995). The Board amended the judge's remedy to conform with the appropriate remedy in cases where the actual number of job openings is fewer than the number of discriminatees. [HTML] [PDF]

Charges filed by the Electrical Workers IBEW International and its Locals 446 and 480; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Jackson, MS, June 5-6, 1995. Adm. Law Judge Lawrence W. Cullen issued his decision April 4, 1996.

Endicott Forging and Manufacturing (3-CA-20541; 328 NLRB No. 15) Endicott, NY April 19, 1999. Members Fox and Brame granted the General Counsel's Motion for Summary Judgment, finding that the Respondent failed to raise any issue properly litigable in this unfair labor practice proceeding because its claim that the failure to make required pension payments resulted from the financial condition of the Company does not constitute an adequate defense to complaint allegations that it violated Section 8(a)(5) and (1) of the Act by failing to make contractually mandated pension plan contributions. Dissenting Member Hurtgen said that he would listen to, and consider the Respondent's assertions that its failure to pay was because of financial conditions and that it offered to meet with the Union any time to resolve the matter. He wrote: "Assuming that the Respondent proves its answer, the Board should, at most, treat this conduct as a breach of contract necessitated by financial conditions, and the Board should give the parties an opportunity to resolve the problem." [HTML] [PDF]

Charge filed by the Boilermakers International; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed Motion for Summary Judgment Feb. 24, 1998.

Teamsters Local 85 (20-CB-10100; 328 NLRB No. 13) San Francisco, CA April 20, 1999. The Board dismissed complaint allegations that the Respondent violated Section 8(b)(1)(A), 8(b)(1)(B), and 8(b)(2) of the Act by filing a grievance against Teamsters Local 856 and a Federal lawsuit against Local 856 seeking to compel it to comply with the grievance and arbitration provisions of an alleged collective-bargaining agreement and to arbitrate the grievance it had filed against Local 856. The Board found that this case, where the parties' collective-bargaining agreement has expired and the Respondent has disclaimed interest in representing the Employer's employees and seeks merely to arbitrate a left over grievance, is distinguishable from Teamsters Local 688 Insurance & Welfare Fund, 298 NLRB 1085 (1990), relied on by the General Counsel. In that case, the Board adopted an administrative law judge's finding that the respondents violated the Act by maintaining and enforcing a collective-bargaining agreement containing union-security and dues-checkoff provisions when the respondent union was disqualified from representing the employees of the respondent fund. Member Hurtgen, concurring in the complaint's dismissal, does not necessarily agree with his colleagues that the General Counsel failed to establish a violation. However, assuming arguendo that he has done so, Member Hurtgen sees no need for a remedial order. [HTML] [PDF]

Charge filed by Teamsters Local 856; complaint alleged violation of Section 8(b)(1)(A), 8(b)(1)(B), and 8(b)(2). Parties waived their right to a hearing and decision by an administrative law judge.

National Public Radio (5-RC-14591; 328 NLRB No. 14) Washington, DC, Los Angeles, CA, Chicago, IL, and New York, NY April 21, 1999. Chairman Truesdale and Member Brame certified the Petitioner (NABET, CWA) as the exclusive representative of employees in several specific classifications, including broadcast/recording technician. The majority perceived no ambiguity in the parties' unit stipulation and found, contrary to the hearing officer, that the stipulated unit description is controlling and would therefore sustain the challenges to the ballots of the 3 temporary broadcast/recording technicians. Member Liebman, dissenting, agreed with the hearing officer's finding that the parties' unit stipulation is ambiguous as to whether temporary broadcast/recording technicians were included in the unit. For the reasons stated by the hearing officer, she would find that the challenged voters share a community of interest with unit employees and would include them in the unit. [HTML] [PDF]

The revised tally of ballots for the election held May 27, 1998 shows 37 for the Petitioner, 1 for Intervenor EIT/DIST Technical Representatives, 31 for Intervenor Public Radio Technical Employees Association, 3 against any participating labor organization, with 5 challenged ballots. At the hearing, the parties stipulated that one challenged voter was an eligible voter and that one was ineligible.

Country Manor Rehabilitation (1-CA-34757, 35025; 328 NLRB No. 17) Newburyport, MA April 22, 1999. Affirming the administrative law judge's recommendation, the Board dismissed complaint allegations that the Respondent violated Section 8(a)(1) of the Act by encouraging and soliciting employees to sign a decertification petition, promising that it would terminate a shop steward if Service Employees Local 285 was voted out, threatening employees with unspecified discipline, and discriminating against prounion employees by failing to discipline Charge Nurse Robert Morse, who supported the decertification petition, for alleged inappropriate behavior. [HTML] [PDF]

Charges filed by Service Employees Local 285; complaint alleged violation of Section 8(a)(1). Hearing at Boston, July 1-2, 1998. Adm. Law Judge Raymond P. Green issued his decision Sept. 18, 1998.

Operating Engineers Local 520 (Massman Construction Co., et al.) (14-CC-2271, 14-CE-80; 327 NLRB No. 208) St. Louis, MO April 6, 1999. Affirming the administrative law judge, the Board held that a joint venture provision which the Respondent Union sought from Massman Construction and entered into with several Southern Illinois Builders' Association employers, violated the basic prohibition of Section 8(e) of the Act. Under the disputed provision demanded by the Union, the signatory Employer is prohibited from entering into a joint venture or joint work undertaking unless all parties to the contract for the joint venture also accepted and were bound by the collective-bargaining-agreement. [HTML] [PDF]

The Board stated that such a clause is not protected by the construction industry proviso, nor was it part of the pattern of bargaining in the construction industry at the time of the proviso's enactment in 1959. It noted: "The disputed clauses are not subcontracting agreements of the sort previously found lawful by the Board and the courts, but instead, like the antidual shop clause found unlawful in Alessio, [310 NLRB at 1029], are an attempt to control the signatory employer's business relationships. According, as in Alessio, 'we must strictly construe the proviso' and find that the disputed joint venture clauses fall outside its protections."

Charges filed by Massman Construction; complaint alleged violation of Sections 8(e), and 8(b)(4). Hearing at St. Louis, April 13, 1994. Adm. Law Judge Stephen J. Gross issued his decision July 20, 1994.

Teamsters Local 688 (Ravarino & Freschi, Inc.) (14-CB-7794; 327 NLRB No. 207) St. Louis, MO April 6, 1999. The Board, upholding the administrative law judge, held that the Respondent Union violated Section 8(b)(1)(A) of the Act by threatening Charging Party Gibson with discharge unless he became a member and signed a dues-checkoff authorization form. However, in light of its decision in California Saw & Knife Works, 320 NLRB 224 (1995), the Board reversed the judge's dismissal of the complaint allegations that the Respondent violated Section 8(b)(1)(A) by failing to notify Gibson of his Beck rights, and by failing to provide him with an accounting disclosing the portion of dues expended by the Respondent on nonrepresentational activities. [HTML] [PDF]

In finding a violation, the Board pointed out that the Respondent failed to communicate at all with the Charging Party following his Beck objection. Accordingly, the Charging Party was left uncertain whether he would be charged a proportionate share of dues as a Beck objector, what the proportion would be, and whether he might need to file a challenge to the dues reduction calculation. In contrast to Laborers Local 265, 322 NLRB 294 (1996), the Respondent in the instant case did not notify the Charging Party that it was affirmatively waiving his obligations under the union-security clause.

The Board stated further: "We find that by leaving a Beck objector in the dark regarding his union-security obligations and hence his potential need for Beck-related financial information, the Respondent engaged in arbitrary conduct violative of the duty of fair representation. In so concluding, we emphasize the minimal burden placed on a union by our holding today: to inform a Beck objector of the waiver of union-security obligations. Thus, a union may, under the wide range or reasonableness afforded a union in satisfying the requirements of Beck, satisfy its obligation to provide Beck-related financial information by waiving the objector's obligations under a union-security clause. We simply hold that a union acts in an unlawfully arbitrary manner by failing to inform the objector of its decision to waive the union-security obligations."

In light of the Supreme Court's Marquez decision, 119 S.Ct. 292 (Nov. 3, 1998), the Board adopted the judge's dismissal of a complaint allegation that the Respondent maintained a facially unlawful union-security clause since the clause tracked the "membership" language of Section 8(a)(3) of the Act.

Charge filed by Donald O. Gibson, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at St. Louis, May 26, 1992. Adm. Law Judge Stephen J. Gross issued his decision December 21, 1992.

Wallace International de Puerto Rico, Inc., et al. (24-CA-6969, et al., 24-RC-7640; 328 NLRB No. 3) San German, PR April 12, 1999. The Board, affirming an administrative law judge, held that the Respondent violated Section 8(a)(1) of the Act by threatening employees -- in a video shown to all employees within two days of the election -- that plant closure would result if they voted to select the Union as their collective-bargaining representative. The video included a message from the Mayor of San German urging employees not to vote for union representation if they wanted the Respondent to remain in town, it also showed scenes of a closed plant. [HTML] [PDF]

In directing a second election, the Board said it normally would at least consider issuing a Gissel bargaining order in these circumstances, however, "given the long and unjustified delay of the case here at the Board, we recognize that such an order would likely be unenforceable." The first election, which the union lost, was held in 1993.

Charges filed by Congreso de Uniones Industriales de Puerto Rico; complaint alleged violation of Sections 8(a)(1) and (3). Hearing at Mayaguez, December 12-15, 1994, and Sabana Grande, February 22 - March 3, 1995. Adm. Law Judge Richard H. Beddow Jr. issued his decision August 10, 1995.

Supervalue, Inc. (33-RC-4278; 328 NLRB No. 9) Urbana, IL April 15, 1999. In a Decision and Direction, the Board majority of Members Fox and Liebman agreed with the hearing officer that since the Employer failed to establish that an employee on permanent disability, had resigned or was discharged - he was eligible to vote in an April 3, 1998 election. The vote was 72 for and 70 against the union, 10 challenged ballots, including Robertson's. The majority relied on Red Arrow Freight Lines, 278 NLRB 965 (1986) and Pepsi-Cola Co., 315 NLRB 1322 (1995) as well-established Board policy that "an employee on sick or disability leave is presumed to be eligible to vote absent an affirmative showing that the employee has resigned or been discharged." [HTML] [PDF]

In dissent, Member Hurtgen, disagreeing with the Red Arrow test, said he would apply a test that would allow ineligibility to be shown by termination, resignation, or other facts establishing that there is no reasonable expectation of return. He noted that Robertson, a permanently and totally disabled employee weighing 450 pounds with multiple health problems, would never be able to return to work by the admission of his own physician. Accordingly, Member Hurtgen would sustain the challenge to Robertson's ballot.

Linda Lewis and Roger Weekly, Individually and as a Partnership, d/b/a Iron Griddle Restaurant (6-CA-28767; 327 NLRB No. 205) Waynesburg, PA March 31, 1999. The Board agreed with the administrative law judge that the credited testimony does not support the belated rationale the Respondent has offered for discharging Charging Party Lynnette Ferrari and that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Ferrari for engaging in protected concerted activity, i.e., pursuit of a pay adjustment for herself and another employee. The Board in 1998 remanded the case to the judge to reconsider his credibility findings and to issue a supplemental decision in light of his misstatement that Linda Lewis, the Respondent's majority partner, had not raised as a defense before the Pennsylvania Unemployment Compensation Board her claim that insubordination had been a reason for Ferrari's discharge. [HTML] [PDF]

Charge filed by Lynette Ferrari (an individual); complaint alleged violation of Section 8(a)(1) and (3). Adm. Law Judge James L. Rose issued his decision Oct. 16, 1997 and supplemental decision Nov. 6, 1998.

Livent U.S., Inc. d/b/a the Ford Center for the Performing Arts (2-RC-22021; 328 NLRB No. 1) New York, NY April 7, 1999. The Board held, contrary to the Regional Director, that the Employer's voluntary recognition of the Intervenor (Stage Employees International) barred the subsequent petition filed by the Petitioner (Service Employees Local 54) because a sufficient amount of time for bargaining between the Employer and the Intervenor had not yet elapsed at the time the Petitioner filed its petition. By Order dated January 14, 1999, the Board summarily reversed the Regional Director's Decision and Direction of Election and dismissed the petition, and stated that a fully articulated opinion would follow. [HTML] [PDF]

Aluminum Casting & Engineering Co., Inc. (30-CA-12855, et al.; 328 NLRB No. 2) Milwaukee, WI April 9, 1999. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to implement a wage increase and violated Section 8(a)(1) by reimbursing employees for damage to their cars if the employees attributed the damage to the Union, and asking employees to inform the Respondent if "anyone puts you under any pressure to sign a union card or threatens you in any way because you won't sign a card" (limited to that part of the statement that directs employees to report any "pressure" on them to sign union cards). Members Liebman and Hurtgen, with Member Brame dissenting, found that the Respondent further violated Section 8(a)(1) by maintaining in its employee handbook the statement that it was the Respondent's intention to do everything possible to maintain our company's union-free status for the benefit of both our employees and [the Company]," and by maintaining in its rules of conduct a no-solicitation rule that prohibits employees from "[s]oliciting or selling on company premises except when all concerned are relieved from duty." Members Hurtgen and Brame, with Member Liebman dissenting, reversed the judge's conclusion that the Respondent's remark about employee Shaw's "Slave Co." button violated Section 8(a)(1), finding that the Respondent "simply questioned why an employee who thought he was a slave would wish to continue to work for the company and endure that slavery." [HTML] [PDF]

Charges filed by Electrical Workers UE; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Milwaukee, Feb. 23-26, 1998. Adm. Law Judge William G. Kocol issued his decision May 12, 1998.

Hertz Equipment Rental Corp. (25-RD-1337; 328 NLRB No. 5) Indianapolis, IN April 9, 1999. Chairman Truesdale and Member Liebman, in affirming the Regional Director's administrative dismissal, noted that the petition was filed during the posting period of the settlement agreement resolving Cases 25-CA-25900 and 26059, during which no question concerning representation can be raised. See Freedom WLNE-TV, Inc., 295 NLRB 634 (1989). Dissenting Member Brame would grant review because he disagrees with the automatic dismissal rule imposed by Freedom-WLNE TV and Douglas-Randall, 320 NLRB 431 (1995). Instead, he said he would "join Member Hurtgen in endorsing a case-by-case analysis of the effect of the alleged employer misconduct in situations involving the filing of a decertification petition in the face of a settlement of pending unfair labor practices." See Member Hurtgen's dissent in Liberty Fabrics, Inc., 327 NLRB No. 13, slip op. at 2-3 (1998). Operating Engineers Local 103 is the union involved in the instant case. [HTML] [PDF]

Food & Commercial Workers Local 1099 (Kroger, Inc.) (9-CA-31116, 9-CB-8672; 327 NLRB No. 206) Cincinnati, OH March 31, 1999. The Board adopted, pro forma, in the absence of exceptions, the administrative law judge's conclusions including the finding that the Respondent Union violated Section 8(b)(1)(A) of the Act by maintaining in effect a union-security clause requiring that, as a condition of employment, employees become and remain "members in good standing of the Union" without informing unit employees that they are only obligated to pay those fees and dues spent on activities germane to their union's role as bargaining representative. Interpreting the judge's decision in light of current law, the Board found that the Union unlawfully failed to provide unit employees notice of their rights under Beck. The Charging Party excepted to the judge's failure to provide all unit employees with reimbursement of unlawfully collected dues. The Board found merit to this exception "only to the extent that we shall provide a Rochester remedy to those employees who were initially subjected to union security on or after March 14, 1993, the beginning of the 6-month period preceding the filing of the charge." Complaint allegations against the Respondent Employer were dismissed. [HTML] [PDF]

Charges filed by Nicholas Klein, an individual; complaint alleged violations of Sections 8(a)(1), and 8(b)(1)(A) and (2). Hearing on Oct. 3, 1994. Decision issued by Adm. Law Judge Peter E. Donnelly, Jan. 31, 1995.

Vulcan Waterproofing Co. (13-CA-34708; 327 NLRB No. 170) River Grove, IL March 31, 1999. The Board, affirming the finding of the administrative law judge, held that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Antonio Maney and J.D. McClinton because of their activities for Teamsters Local 714. The Board relied on the judge's credibility finding that Senior Foreman Naugle, an admitted supervisor, who witnessed the employees' union activities, reported what he saw to General Manager DeLaura who informed Production Manager Smith. Smith, who made the decision to discharge the two employees, relied on Naugle's report that Maney and McClinton engaged in alleged insubordination and Naugle's recommendation that they be discharged. The Board denied the Respondent's motion to reopen the record to introduce a transcript from an Illinois State Court proceeding in which McClinton pled guilty (about 6 months before the judge's decision was issued) to disorderly conduct. The Respondent argued that the evidence is new and bears on the judge's credibility finding that Naugle exaggerated the abusiveness of the drivers' alleged insubordination. [HTML] [PDF]

Charge filed by Teamsters Local 714; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago, July 7-9, 1997. Adm. Law Judge Thomas R. Wilks issued his decision March 20, 1998.

Richard Mellow Electrical Contractors Corp. (4-CA-22023, et al.; 327 NLRB No. 171) Dickson City, PA March 31, 1999. Contrary to the administrative law judge, the Board found that the Respondent violated Section 8(a)(5) of the Act by failing to bargain with Electrical Workers IBEW Local 81; violated Section 8(a)(3) and (1) by failing to consider 14 union members who applied for work between May 23 and June 17, 1994 despite its hiring 13 other electricians; and violated Section 8(a)(1) by requiring applicants for employment to disclose their union affiliation and displaying a "No Union" sticker on the door to the Respondent's office area, through which applicants for employment-including the discriminatees in this case-had to pass. The Board, in affirming the judge's finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally granting employees a wage increase on July 19, 1994 and failing to provide the Union with requested information (the addresses and wage rates of unit employees), disagreed with his finding that the Respondent took the actions in "a good faith belief that it was acting in a proper manner." [HTML] [PDF]

Charges filed by Electrical Workers IBEW Local 81; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Scranton, May 24-25, 1995. Adm. Law Judge George Aleman issued his decision Jan. 30, 1996.

Pepsi-Cola Co. (8-RC-15152; 327 NLRB No. 183) Cleveland and Twinsburg, OH March 26, 1999. The Board found that all of the Employer's account representatives who have merchandisers assigned to them or their team are supervisors as defined in Section 2(11) of the Act, reversing the Regional Director's finding that all but 2 of the 46 account representatives are not supervisors. The Board declined, contrary to the Regional Director, to draw a distinction between those account representatives who have exercised their authority to discharge and those who have not, as all of the account representatives possess the authority to do so. Members Fox and Brame found it unnecessary to pass on the Regional Director's findings with respect to the other indicia of supervisory authority alleged by the Employer. Member Hurtgen would also find supervisory status based on the account representatives' authority to assign overtime work to the merchandisers and approve their requests for vacation and leave. [HTML] [PDF]

Masterform Tool Co., Cylinder Components, Inc., and Rrp Enterprises, Inc., a Single Employer (13-CA-32123; 327 NLRB No. 185) Franklin Park, IL March 30, 1999. Contrary to the administrative law judge, the Board found that setup men Guadalupe Zapata and Feliciano Rodriguez are not supervisors and dismissed the 8(a)(1) complaint allegations attributed to them (interrogating employees about their and other employees' activities for UNITE Local 76, and threatening employees with layoff, termination, and plant closure if they supported the union). Although the Board found that Zapata's and Rodriguez' knowledge of seven laid-off employees' union activities cannot be imputed to the Respondent, it affirmed his finding that the layoffs violated Section 8(a)(3) and (1). The Board found that the Respondent had knowledge of the employees' union activity based on the union's request for recognition on November 3, 1993, the timing of the layoffs occurring shortly after the employees openly met with union organizers just outside the doors of the plant on November 4, and the pretextual reason (lack of work) proffered by the Respondent. The Board reversed the judge's finding that a Gissel bargaining order is warranted in light of its reversal of all of his 8(a)(1) findings. The Board also noted that while the Respondent's layoff of seven known union supporters had a "severe impact on the employees' protected right to organize," six of them were reinstated by at least February 1, 1994. [HTML] [PDF]

Charge filed by UNITE Local 76; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago, Oct. 11-13, 26-28, and Nov. 7-11, 1994. Adm. Law Judge Marion C. Ladwig issued his decision July 20, 1995.

Nor-Cal Ready Mix, Inc., d/b/a Antioch Rock & Ready Mix (32-RC-4443, 4448; 327 NLRB No. 187) Antioch, CA March 30, 1999. The Board overruled, contrary to the hearing officer's recommendation, the Employer's Objections 1 and 2 asserting that the results of two elections must be set aside because of threats of physical and other harm by the Unions, their agents, and supporters. Elections were conducted at the Employer's premises on June 11, 1998 in two entirely separate units--a mechanics unit petitioned for by Machinists District Lodge 190 and Operating Engineers Local 3 (Joint Petitioners) in Cases 32-RC-4443 and 4448; and a drivers unit petitioned for by Teamsters Local 315 in Case 32-RC-4449. The hearing officer found that, prior to the election, mixer driver Thomas Pease threatened fellow drivers Gonzalo Ramos, Wanda Covarrubias, and Ron McCoy with various reprisals if they did not vote for the "Union." In overruling the Employer's objections, the Board found that Pease's threats were not disseminated to any eligible voter in the mechanics unit and thus have not been shown to have had any impact on the election in that unit. In an unpublished Order dated November 30, 1998, the Board severed and remanded Case 32-RC-4449 to the Regional Director to hold a second election. [HTML] [PDF]

Members Fox and Liebman agreed with the Regional Director's recommended overruling of the Employer's Objection 3 asserting that the Board agent who conducted the election interfered with its results by altering the tally of ballots and changing a clearly void ballot to a challenged ballot. The hearing officer determined that the disputed ballot was void. Member Brame would have directed a hearing on this objection. In light of the subsequent, undisputed, finding by the hearing officer that the ballot is void, however, he agrees that a procedural issue--whether the Joint Petitioners' challenge to the void ballot determination was properly before the Board-is moot. In the absence of exceptions, the Board adopted pro forma the hearing officer's determination that the challenges to the ballots cast by Sam Cast and Pam Bailey be overruled and that the ballot originally declared void by the Board agent be declared a void ballot. The Board directed that the ballots cast by Cast and Bailey be opened and counted and that a revised tally and the appropriate certification be issued.

The Cooper Health System (4-CA-25918; 327 NLRB No. 189) Camden, NJ March 31, 1999. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by disciplining Donna Conrey with a verbal warning because she engaged in union activity; and violated Section 8(a)(1) by certain acts, including prohibiting employees from engaging in union solicitation during nonworking time outside of immediate patient care areas of its hospital, and enforcing a no-solicitation/no-distribution rule against union activity while permitting solicitation and distribution for commercial and other nonunion related activity. [HTML] [PDF]

Charge filed by Operating Engineers District l; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, Jan. 8 and Feb. 18, 1998. Adm. Law Judge Leonard M. Wagman issued his decision June 11, 1998.

Carmody, Inc. (2-CA-31106; 327 NLRB No. 204) Mt. Kisco, NJ March 31, 1999. The Board 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 failing to bargain with Carpenters District Council for New York City and Vicinity by failing to execute a successor collective-bargaining agreement. The Board found that the Respondent's explanations in response to the Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted, do not constitute a showing of good cause for its failure to file a timely answer to the complaint. The Respondent filed an affidavit of Michael Giannasca, self-described as an employee of the Respondent with management responsibilities, contending that Giannasca's preoccupation with his personal problems constituted good cause for the Respondent's failure to file a timely answer to the complaint. The Board wrote: "The Respondent cannot vest its obligations under the National Labor Relations Act in a particular employee and then be absolved of the effects of failing to meet such responsibilities on the ground that the employee has been preoccupied by personal problems." [HTML] [PDF]

Charge filed by Carpenters District Council for New York City and Vicinity; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed Motion for Summary Judgment October 20, 1998.

Urban Construction, Inc. (12-CA-16562; 327 NLRB No. 200) Miami, FL March 31, 1999. The Board granted the General Counsel's motion, struck the Respondent's answer to the compliance specification with respect to paragraphs 1(a) and (b), 2(a) through (f), and 3(a) through (c) of the specification, and its first affirmative defense; and granted summary judgment with respect to all allegations in the specification except paragraphs 3(e), (f), and (g) and 4. The Board directed a hearing limited to the amount of interim earnings attributable to the discriminatees, and related matters, and the Respondent's net backpay liability. The Board had ordered at 320 NLRB 1166 (1996), enforced by the U.S. Court of Appeals for the Eleventh Circuit, that the Respondent make whole Willie Louis and Anele Stanisclas for any loss of earnings they may have suffered as a result of the Respondent's unfair labor practices. [HTML] [PDF]

General Counsel filed Motion to Strike Respondent's Answer in Part and for Partial Summary Judgment Dec. 4, 1998.

Pontiac Osteopathic Hospital (7-RC-21181, 21183; 327 NLRB No. 194) Pontiac, MI March 31, 1999. The Board remanded the proceeding to the Regional Director for a supplemental report based on evidence adduced at a hearing concerning the professional or nonprofesssional status of the medical technologists referred to as "med techs" in the stipulated unit description. If the employees are determined to be professionals, the election in Case 7-RC-21181 must be set aside and a Sonotone election directed. The hearing officer concluded that the Employer's Objection 8, which alleged that the med techs were professional employees erroneously included in a technical unit, was in the nature of a postelection challenge and refused the offer of proof. The Board held that "even though the Employer failed to raise the issue of the medical technologists' alleged professional status prior to the election, the Regional Director had received sufficient information to put him on notice that there was a substantial issue as to whether these employees are professionals" and that it was "an error for the Regional Director not to conduct a further inquiry." The other objections in Case 7-RC-21181 and the objections in 7-RC-21182 will be held in abeyance pending the issuance of the hearing officer's supplemental report on the Employer's Objection 8. [HTML] [PDF]

Macy's West, Inc. (28-RC-5422; 327 NLRB No. 201) Phoenix and Tucson, AZ, Las Vegas, NV, and Albuquerque, NM March 31, 1999. Members Fox and Liebman affirmed the Acting Regional Director's findings that a separate unit of maintenance engineers is an appropriate unit for bargaining and that Chief Engineer Bob Smith is not a supervisor as defined in Section 2(11) of the Act. However, they reversed the Acting Regional Director's finding that a unit limited to the Employer's six facilities in Arizona is appropriate and found that the smallest appropriate unit must also include the maintenance engineers in the Employer's Las Vegas, Nevada and Albuquerque, New Mexico facilities. In so doing, Members Fox and Liebman noted that the issue here is whether a petitioned-for multilocation unit is an appropriate unit for bargaining or whether other locations must be included rather than the appropriateness of a petitioned-for single facility unit or of an overall unit of the Employer's stores, in which there would be a presumption of appropriateness. Member Hurtgen, dissenting, would dismiss the petition filed by Operating Engineers Local 428, finding that the Employer's maintenance engineers do not constitute a separate appropriate unit because they do not have a sufficient distinct community of interest. Thus, he did not reach the issue of Chief Engineer Smith's alleged supervisory status. [HTML] [PDF]

Wright Electric, Inc. (18-CA-12820, et al.; 327 NLRB No. 196) Plymouth, MN March 31, 1999. The Board severed and remanded to the administrative law judge to hold in abeyance, rather than dismiss, complaint allegations in Case 18-CA-12820 that the Respondent initiated and maintained a "baseless and retaliatory" lawsuit in state district court against Electrical Workers IBEW Local 292, Union Business Agent Michael Priem, and employee Ouellette, claiming that Ouellette, acting at the Union's behest, filed a falsified employment application to the Respondent. No exceptions were filed to the judge's recommended dismissal of allegations that the Respondent violated Section 8(a)(1) and (4) by filing the lawsuit or the judge's finding that the malicious prosecution claims are still pending. The General Counsel excepted to the judge's failure to find that the Board should retain jurisdiction pending final court resolution. Turning to other alleged violations, the General Counsel excepted to the judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1) by making discovery requests in connection with its lawsuit. The Board found merit only in the exception pertaining to seeking discovery of employee authorization cards. And, the Board found merit in the General Counsel's exception to the judge's statement, in finding that the Respondent violated Section 8(a)(3) by refusing to hire Louis Lutz because of his union membership, that the Respondent may litigate certain matters regarding Lutz' reinstatement in compliance. [HTML] [PDF]

Charges filed by Electrical Workers IBEW Local 292; complaint alleged violation of Section 8(a)(1) and (4). Hearing at Minneapolis on April 23, 1996. Adm. Law Judge William J. Pannier III issued his decision Nov. 26, 1996.

Grand Central Partnership (2-CA-28910, et al.; 327 NLRB No. 172) New York, NY March 24, 1999. The Board adopted with one exception the administrative law judge's decision finding violations of Section 8(a)(1), (3), and (4) of the Act. The judge found that certain statements made by William Chabot, the Respondent's chief of sanitation, during an employee meeting violated Section 8(a)(1) on two separate theories. In the judge's view, Chabot's comments (1) implied that it was futile for employees to support the Union and (2) constituted an unlawful promise of benefits if they rejected union representation. The Board adopted only the judge's unlawful promise theory based on its finding that the statements did not expressly or impliedly threaten that it would be useless to vote for the Union. On another issue, Chairman Truesdale would reverse the judge's finding that the Respondent violated Section 8(a)(4) by opposing the unemployment compensation claim of Paco Mieses. [HTML] [PDF]

Charges filed by Teamsters Local 210; complaints alleged violations of Section 8(a)(1), (3), and (4). Hearing at New York, NY, Oct. 28, 1996. Decision issued by Adm. Law Judge Steven Fish, Dec. 12, 1997.

Labor Ready, Inc. (9-CA-34950; 327 NLRB No. 179) South Charleston, WV March 26, 1999. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) and (3) of the Act by maintaining a no-solicitation rule, and by barring Donald Huff, an employee of the Affiliated Construction Trades Foundation, from soliciting employees and from employment at all of Respondent's offices nationwide. The judge also found, with Board approval, that the Respondent violated Section 8(a)(1) by using a video camera for surveillance of union organizing activities. Concurring, Member Hurtgen wrote separately to stress that "the holding of this case should be limited to cases arising in similar settings. *** I know of no case expressly holding that applicants must be treated as employees for the purposes of no-solicitation rules. Accordingly, we are, at least to that extent, dealing with an issue of first impression. I therefore believe that we should provide some guidance concerning the boundaries of our holding in this case." In adopting the judge's conclusion that the no-solicitation rules violated the Act, Members Fox and Brame do not find it necessary to address Member Hurtgen's concerns involving other factual contexts. [HTML] [PDF]

Charge filed by Tri-State Building and Construction Trades Council; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Charleston, WV, Jan. 18, 1998. Decision issued by Adm. Law Judge Benjamin Schlesinger, May 14, 1998.

Yellow Freight System of Indiana (13-CA-31228; 13-CB-13874; 327 NLRB No. 175) West Chicago, IL March 24, 1999. The Board modified some of the administrative law judge's findings and his recommended Order. In pertinent part, the Board agreed with the judge that the Union (Teamsters Local 710) violated its duty of fair representation in violation of Section 8(b)(1)(A) of the Act by failing to inform Charging Party Alfred Pohl and other employees covered by a union-security clause of their rights under General Motors and Beck. Contrary to the judge, the Board found, under California Saw, that this violation was not based on ambiguity in the union-security clause but on the Union's failure to notify employees of the statutory limits on its obligations under the clause. Certain Section 8(a)(1) and (2) violations against the Respondent Employer (Yellow Freight) were deleted and the Order was modified accordingly. The Respondent was ordered, in pertinent part, to give affected employees their Beck rights in writing, process any objections, and grant any reimbursements. The Order and Notice requirements were also modified in certain other respects. [HTML] [PDF]

Charges filed by Alfred Pohl, an individual; complaints alleged violations of Section 8(a)(1), (2), and (3), and 8(b)(1)(A) and (2). Hearing at Chicago, IL, July 23, 1993. Decision issued by Adm. Law Judge Elbert D. Gadsden, June 7, 1994.

Watsonville Newspapers, LLC, d/b/a Watsonville Register-Pajaronian (32-CA-15035; 327 NLRB No. 160) Watsonville, CA March 24, 1999. Members Fox and Brame, with Member Hurtgen concurring in the result, found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing a rule requiring display ad employees to be out of the office from 10 a.m. to 3 p.m., without prior notice to and without bargaining with the Union about a change in the terms and conditions of employment. In so doing, the Board overturned the administrative law judge's dismissal and rejected the Respondent's affirmative defense that the new rule was "mere compliance with the Fair Labor Standards Act" and was a permissible exercise of supervisory control to improve efficiency. Members Fox and Brame stated that the Respondent was not insulated from its obligations to bargain under the Act because it was not under a legal compulsion to make the change in working conditions and that it could have complied with the FLSA by paying employees overtime. In addition, Members Fox and Brame rejected the judge's finding that the implementation of the Respondent's rule was protected because it was within the area of management/supervisory control. They stated: "We emphasize that we in no way suggest that the Respondent does not have a legitimate interest in restructuring its employees' hours in order to achieve its goals, including maintaining its exemption under FLSA. We hold here only that it is the Respondent's duty to notify and, upon request, bargain with the Union about these proposed changes." Member Hurtgen wrote a concurring opinion "to make it clear that this case does not involve any contention that the Respondent had an obligation to bargain about its entreprenurial decision to have its employees exempted from the overtime provisions of the FLSA." [HTML] [PDF]

Charges filed by Newspaper Guild Local 98; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Oakland, CA, Feb. 22, 1996. Decision issued by Adm. Law Judge William L. Schmidt, March 7, 1996.

Paperworkers International and its Local 987 (Sun Chemical Corp. of Michigan) (7-CB-9597; 327 NLRB No. 177) Muskegon, MI March 24, 1999. The Board adopted the administrative law judge's finding that the Respondents breached their duty of fair representation, in violation of Section 8(b)(1)(A) of the Act, by failing to inform Charging Party Thomas Henry Teall and other unit employees covered by a union-security provision of their rights under General Motors and Beck, and by continuing to collect and use Teall's full service fees for non-representational purposes even after Teall resigned from the union and filed a Beck objection. Citing the Supreme Court's recent decision in Marquez, the Board affirmed the judge's finding that the union-security clause is not per se unlawful. Addressing certain remedial issues, the Board agreed with the judge's requirement that the Respondents notify all unit employees of their Beck and General Motors rights. However, the Board modified the recommended Order and Notice to require reimbursement only of fees determined to exceed the amounts that the Respondents could lawfully collect under Beck. The Respondents were also ordered to, among other things, notify certain employees in writing of their Beck rights and to, as recommended by the judge, notify unit employees that they are required to pay initiation fees. [HTML] [PDF]

Charges filed by Thomas Henry Teall, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Muskegon, MI, Dec. 9, 1993. Decision issued by Adm. Law Judge Richard H. Beddow Jr., March 18, 1994.

Decca Limited Partnership, d/b/a Manor Care of Decatur (10-CA-28546, et al.; 327 NLRB No. 173) Decatur, GA March 24, 1999. The Board agreed with the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by including in employee Ida Minter's evaluation a negative comment about her wearing large union buttons, but disagreed with the judge that by the same action the Respondent also created the impression of surveillance in violation of Section 8(a)(1). Contrary to Members Liebman and Hurtgen and the judge, Member Brame would not find that the Respondent violated Section 8(a)(1) by photographing employees engaged in handbilling at the Respondent's facility. Members Brame and Hurtgen upheld the judge's finding that the Respondent's termination of six employees including Rose Harvey did not violate Section 8(a)(1) and (3). With regard to the discharge of Harvey only, Member Liebman, dissenting in part, would find that Harvey was disparately treated by the Respondent because of her union activity and discharged in violation of Section 8(a)(1) and (3). [HTML] [PDF]

Charges filed by Food and Commercial Workers Local 1996; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Atlanta, GA, Nov. 3-6, 1997. Decision issued by Adm. Law Judge Bruce D. Rosenstein, March 6, 1998.

Mathews-Carlsen Body Works, Inc. (32-CA-15537(E), 15736(E); 327 NLRB No. 190) Palo Alto, CA March 31, 1999. In this Supplemental Decision and Order, the Board affirmed the administrative law judge's ruling that the Applicant (Mathews-Carlson Body Works) be denied an Award of Fees and Expenses pursuant to the Equal Access to Justice Act based on the judge's finding that the General Counsel's position was substantially justified at all stages of the proceeding. In this case, the General Counsel moved to withdraw the complaint after a review of the hearing record and before the time for the filing of posthearing briefs. [HTML] [PDF]

Nationsway Transport Service (22-CA-20363, 22-CB-7933; 327 NLRB No. 184) Parsippany, NJ March 24, 1999. In pertinent part, the Board found no merit to the Respondent's exception and found that the contractual issue resolved by a prior grievance settlement is not factually parallel to the unfair labor practice issues raised by the complaint and that, therefore, deferral to the settlement is not warranted under Postal Service. Rejecting the Employer's exceptions, the Board upheld the judge's finding that the Employer violated Section 8(a)(3) and (1) of the Act by terminating Charging Party Gregory Noweski, concluding that Wright Line was properly applied and that Noweski's conduct was union activity. Contrary to Member Hurtgen, who dissented on this issue, Members Liebman and Brame agreed with the judge's conclusion that the Union, Teamsters Local 560, violated Section 8(b)(1)(A) and (2) by requesting that the Employer deny Noweski his proper seniority when he returned to work and that the Employer violated Section 8(a)(3) and (1) by acquiescing in the Union's request. [HTML] [PDF]

Charges filed by Gregory Noweski, an individual; complaint alleged violation of Section 8(a)(1) and (3), and 8(b)(1)(A) and (2). Hearing at Newark, NJ, Sept. 25-27, 1996. Decision issued by Adm. Law Judge Steven Davis, May 30, 1997.

Bryant & Stratton Business Institute (3-CA-19749, et al.; 327 NLRB No. 174) Buffalo, NY March 31, 1999. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by conditioning a 1995 merit wage increase on the Union's waiving its right to file unfair labor practice charges over discrimination in the amount of an employee's increase. The judge also found, with Board approval, that the Respondent violated Section 8(a)(1) by informing employees that the Union was responsible for the unlawful failure of the Respondent to grant a merit wage increase, by undermining the Union's status as collective-bargaining representative, and by dealing directly with employees and bypassing the Union concerning terms and conditions of employment. [HTML] [PDF]

Charges filed by Auto Workers Local 2294; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Buffalo, NY, Sept. 24-25, 1997. Decision issued by Adm. Law Judge Steven Fish, Feb. 13, 1998.

Eagle Transport Corp. (10-RC-14919; 327 NLRB No. 198) Doraville, GA March 31, 1999. Contrary to the hearing officer's recommendation, Members Hurtgen and Brame overruled the Petitioner's objections and certified the results of an election where Teamsters Local 528 failed to receive a majority of the ballots cast. They concluded that the Employer's posting of four letters from customers, stating that if the employees unionize they may have to take their business elsewhere, was supported by objective fact under Gissel, conveyed demonstrably probable consequences beyond the Employer's control, and thus did not constitute objectionable threats. Moreover, the majority found no merit in the Petitioner's objection that the Employer engaged in objectionable conduct by merely making reference to the letters at its employee meetings. Member Liebman, concurring in part and dissenting in part, agreed that the letters were admitted into evidence without objection or limitation, and that the hearing officer erred in concluding that the letters had not been properly authenticated. Contrary to her colleagues, however, she agrees with the hearing officer that the "customer letters" were not genuine and that it was objectionable for the Employer to post them. [HTML] [PDF]

Pratt & Whitney, a Division of United Technologies Corp. (12-RC-8040; 327 NLRB No. 199) West Palm Beach, FL March 31, 1999. Overruling the Regional Director, the Board concluded that the appropriate unit must include all of the Employer's similarly situated professional and technical employees located at the Employer's West Palm Beach facility, and not just the professional and technical employees constituting the "traditional engineering core." The Board also concluded that its current method of conducting elections where professional and nonprofessional employees are involved does not require revision. (The union involved here is the Florida Professional Assn.) [HTML] [PDF]

Little Rock Electrical Contractors, Inc. (26-CA-17230; 327 NLRB No. 166) Little Rock, AR March 22, 1999. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire six of nine job applicants because of their support for Electrical Workers IBEW Local 480. Chairman Truesdale and Member Hurtgen, in agreeing with the judge that the Respondent did not unlawfully refuse to hire Union Business Agents Wayne Alan Divine and Sammy Yelverton, assumed arguendo that the General Counsel established a prima facie case for an 8(a)(3) violation. However, they found that the Respondent showed that its nonhiring of these two applicants was for legitimate nondiscriminatory reasons. Chairman Truesdale and Member Hurtgen wrote: "At all relevant times, the Respondent operated under a written rule which prohibited employees at the project from working simultaneously for the Respondent and another employer. There is no allegation that the rule is unlawful. The record shows that Divine and Yelverton were full-time employees of the Union when they applied. The General Counsel does not contend that they intended to give up their union employment upon being hired by the Respondent. Thus, the employment of these two applicants would have violated the Respondent's rule." [HTML] [PDF]

Member Liebman, concurring in part and dissenting in part, would find, in agreement with the General Counsel, that the Respondent did not in fact invoke its rule which prohibits simultaneous employment as a reason for failing to hire Divine and Yelverton and that it violated Section 8(a)(3) and (1) by refusing to hire them.

Charge filed by Electrical Workers IBEW Local 480; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Jackson, MS, Jan. 21-23, 1997. Adm. Law Judge Richard J. Linton issued his decision Aug. 29, 1997.

Long Island College Hospital (29-CA-20526; 327 NLRB No. 169) Brooklyn, NY March 22, 1999. The administrative law judge found, with Board affirmance, that the Respondent violated Section 8(a)(1) when a supervisor warned employees to proceed with caution if they seek the assistance of the Union and by informing employees that their spokesman, Edward Gray, had become very well known to management and had acquired the reputation of "flavor of the month" with management. Although the supervisor did not explain what the phrase meant, the judge ruled that it suggested adverse consequences if the employees involved their Union, even if it was meant to be cautionary advice in the form of a friendly warning. The Board also agreed with the judge that the Respondent violated Section 8(a)(1) by sending Gray a letter threatening him with legal action for statements made at a union conference. [HTML] [PDF]

Charge filed by Health and Human Service Employees 1199; complaint alleged violations of Section 8(a)(1). Hearing at Brooklyn, NY, Sept. 18, 1997. Adm. Law Judge Michael A. Marcionese issued his decision, Dec. 11, 1997.

Painters District Councils 8, 16 and 33 and Local 4 (Meiswinkel/RFJ, Inc.) (20-CB-9268; 327 NLRB No. 180) San Francisco, CA March 24, 1999. The Board found that the Respondents failed to abide by the requirements of California Saw & Knife Works, 320 NLRB 224 (1995), and violated Section 8(b)(1)(A) of the Act by failing to give Thomas Matulis and other unit employees initial notice of their Beck rights to object to paying dues to support union expenditures nongermane to its role as collective-bargaining representative and, upon receipt of a Beck objection from Matulis, failing to provide him with information about the percentage breakdown between representational and nonrepresentational expenditures, the basis for the calculation, and the right to challenge the figures. See e.g. Teamsters Local 443 (Connecticut Limousine Service), 324 NLRB 633 (1997). [HTML] [PDF]

The Respondents further violated Section 8(b)(1)(A) by continuing to charge Matulis the full amounts spent on unspecified nonrepresentational activities, the Board held. In so concluding, it disagreed with the administrative law judge's conclusion that "absent a sufficient 'Beck' system the collection of any dues whatsoever is impermissible and a violation of Section 8(b)(1)(A)." The Board noted that it specifically rejected that notion in Paperworkers Local 1033 (Weyerhaeuser Paper Co.), 320 NLRB 349 (1995), holding that notwithstanding the unlawful failure of the union therein to inform employees of their Beck rights, it was still entitled to collect dues for expenses related to representational activities. The Board severed and remanded to the judge the complaint allegations pertaining to the chargeability of certain union expenditures to Beck objectors because at the time this case was litigated, it had not issued the defining precedent.

Charge filed by Thomas Matulis, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at San Francisco, Feb. 14-15, 1995. Adm. Law Judge Clifford H. Anderson issued his decision Oct. 19, 1995.

Teamsters Local 166 (Dyncorp Support Services Operations) (31-CB-8333, et al.; 327 NLRB No. 176) Ft. Irwin, CA March 23, 1999. The Board granted the General Counsel's Motion for Summary Judgment in part and found that Teamsters Local 166 violated Section 8(b)(1)(A) of the Act by, among other things, violating the terms of a settlement agreement, and that the agreement was properly set aside and there is no remaining dispute over the material facts as alleged. In addition, the Board found that Teamsters Local 166 violated Section 8(b)(1)(A) by failing to inform John Burnham of his Beck rights before seeking dues and fees from him under the union-security clause, by failing to provide notice to the objecting Charging Parties required under California Saw while continuing to collect dues and fees from them, and by failing thereafter to provide Nadine Penrod a copy of its 1991 statement of expenses. Teamsters Local 166 was ordered to provide notice to the Charging Parties of their Beck rights and to give Nadine Penrod a statement of its 1991 expenses. The Board concluded that no make-whole relief is owed the Charging Parties because the Teamsters already refunded with interest the dues and fees collected from them, and that there was no basis for extending relief to any other employees. [HTML] [PDF]

Charges filed by individuals; complaint alleged violation of Section 8(b)(1)(A). General Counsel filed motion for summary judgment May 9, 1995.

James Heavy Equipment Specialists, Inc. (27-CA-15017, 15117; 327 NLRB No. 162) Denver, CO March 19, 1999. Citing Caterair International, 322 NLRB 64 (1996), the Board denied the Respondent's exception and affirmed the administrative law judge's imposition of a bargaining order. No exceptions were filed to the judge's conclusion that the Respondent withdrew recognition from Operating Engineers Local 9 on December 16, 1996. The Board noted that an employee antiunion petition "was engendered by the Respondent, and there is no evidence that the decline in union support among employees resulted from anything other than the Respondent's unlawful conduct as found by the judge. Thus, that tainted expression of employee disaffection cannot be a basis for a denial of a bargaining order." The Respondent's unfair labor practices included bypassing the Union and dealing directly with employees, unilaterally implementing changes in terms and conditions of employment, discharging an employee, threats, and instigating employee Dennis Bensavage's antiunion petition and awarding him bonus pay and offering to purchase equipment from him for circulating the petition. [HTML] [PDF]

Charges filed by Operating Engineers Local 9; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Denver, May 5-6, 1997. Adm. Law Judge Albert A. Metz issued his decision July 23, 1997.

Teledyne Specialty Equipment Landis Machine Co. (5-CA-25489; 327 NLRB No. 168) Waynesboro, PA March 19, 1999. The Board affirmed the administrative law judge's determination that the Respondent timely withdrew from the parties' May 30, 1995 tentative agreement based on his "contract-ratification" analysis and dismissed complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by repudiating and refusing to sign the agreement it reached with Machinists Local Lodge 2530, District Lodge 98. [HTML] [PDF]

Charge filed by Machinists Local Lodge 2530, District Lodge 98; complaint alleged violation of Section 8(a)(1) and (5). Hearing at York on Aug. 26, 1996. Adm. Law Judge Michael O. Miller issued his decision Oct. 28, 1996.

North Bay Plumbing, Inc. (20-CA-26200; 327 NLRB No. 159) Fairfield, CA March 19, 1999. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by its refusal to consider and hire five job applicants. The judge found, and the Board agreed, that the General Counsel met the initial burden of proving that unlawful antiunion sentiment was a substantial or motivating factor in the Respondent's refusal to consider, interview, or offer employment as plumbers to eight union members named in the complaint as discriminatees, and that the Respondent failed to meet its resultant burden of proving that it would not have considered, interviewed, and hired five of them absent their union activities. [HTML] [PDF]

Members Fox and Liebman reversed the judge and found that the Respondent also failed to meet its burden with respect to the three remaining union members--Kyle Wheeler, Dan Caley, and Barry Culloty. Member Hurtgen, concurring and dissenting in part, found that the Respondent unlawfully failed to hire Wheeler, not Caley and Culloty.

Charge filed by Plumbers Local 343; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Francisco during the week of July 15, 1996. Adm. Law Judge Clifford H. Anderson issued his decision Jan. 9, 1997.

N.D. Peters & Co., Inc. (3-CA-20211; 327 NLRB No. 167) Utica, NY March 19, 1999. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1), (3), (5) of the Act by failing and refusing to recall from layoff its employee Charles Piccione; and violated Section 8(a)(1) and (5) by failing to abide by the seniority provisions in its expired collective-bargaining agreement, and by not affording the Union with an opportunity to bargain on that issue. [HTML] [PDF]

Charge filed by Teamsters Local 182; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Albany, NY, May 28, 1997. Decision issued by Adm. Law Judge Steven Davis, June 4, 1998.

Venture Industries, Inc. (7-RC-19035; 327 NLRB No. 165) Grand Blanc, MI March 19, 1999. In this Supplemental Decision, Direction, and Order, the Board reviewed objections, determinative challenges, and the hearing officer's recommendations regarding an election involving the United Auto Workers, and ordered the Regional Director to open and count certain ballots, and issue a revised tally and the appropriate certification. In pertinent part, the Board overruled the challenges to 9 ballots that the hearing officer excluded on community of interest grounds. Members Fox and Brame adopted the hearing officer's recommendation to sustain challenges to 21 ballots on the ground that the ballots were cast by department and line supervisors with supervisory authority under Section 2(11) of the Act to discipline employees and make effective recommendations regarding promotion and reassignment of employees. Stating that the statutory supervisory status of these employees is "a very close question," Member Liebman, concurring, agreed that the line and department supervisors were statutory supervisors but on different grounds. Unlike her colleagues, she relies only on the authority of these workers to recommend promotion and reassignment of employees. "Since Section 2(11) is to be read in the disjunctive, and a disputed employee need only possess one of the indicia set forth in order to qualify as a statutory supervisor, I am constrained to agree that, on this record, these individuals meet the statutory definition of supervisor," Member Liebman stated. [HTML] [PDF]

Keystone Shipping Co. (16-CA-17550, 17830; 16-CB-4895; 327 NLRB No. 163) Bala Cynwyd, PA March 18, 1999. On a stipulated record, the Board found that the Respondent violated Section 8(a)(2) and (1) of the Act by recognizing District 4, NMU/MEBA as the collective- bargaining representative of a certain unit of employees even though NMU did not represent an uncoerced majority in the bargaining unit and by encouraging its employees to join NMU. The Board also held that NMU violated Section 8(b)(1)(A) and (2) by acting as the collective-bargaining representative of a certain unit of employees and by requiring those employees to pay union dues or equivalent fees. [HTML] [PDF]

Charges filed by Southeast Regional Fleet Tankermens Assn. (SERF); complaints alleged violations of Section 8(a)(2) and (1), and 8(b)(1)(A) and (2).

Galen Hospital Alaska, Inc. d/b/a Columbia Alaska Regional Hospital (19-CA-13249; 327 NLRB No. 158) Anchorage, AK March 16, 1999. The Board, reversing the hearing officer, overruled the Union's Objections 1 and 3, and certified that Laborers Local 341 did not receive a majority of the valid ballots cast in an election held September 13, 1996. The tally of ballots shows 25 for and 27 against the Union. Objection 1 contends that the Employer interrogated employees by requesting them to take "Vote No" campaign buttons. Objection 3 contends that the Employer threatened to cease regularly scheduled wage increases if the Union won the election. In the absence of exceptions, the Board adopted, pro forma, the hearing officer's overruling of the Union's Objection 2. [HTML] [PDF]

Evergreen Aviation Ground Logistics Enterprises, Inc. (12-RC-8202; 327 NLRB No. 156) Miami, FL March 15, 1999. Deferring to the opinion issued by the National Mediation Board (NMB), Members Fox and Brame found that the Employer is engaged in interstate common carriage so as to bring it within the jurisdiction of the NMB pursuant to Section 201 of Title II of the Railway Labor Act and, accordingly, dismissed a petition filed by Transportation Workers Local 500 seeking to represent all maintenance employees working for the Employer at Miami International Airport. Member Liebman, concurring, would also find that the Employer is subject to the RLA since it is "under common control with" carriers subject to the RLA. The Employer is a wholly owned subsidiary of Evergreen International Aviation, the parent corporation, which also owns various other subsidiaries including two air carriers, Evergreen International Airlines and Evergreen Helicopters International. [HTML] [PDF]

Quality Food Management, Inc. (2-CA-29144, et al.; 327 NLRB No. 161) Latham, NY March 17, 1999. The Board upheld the administrative law judge's decision that the Respondent, a successor to Aramark in providing food service to the Peekskill School District, unilaterally implemented a new disciplinary policy and discharged Melissa Paulson pursuant to that policy and refused to bargain with AFSCME Local 1000 from February 13 to December 13, 1996, in violation of Section 8(a)(5) and (1) of the Act. In defense, the Respondent argued that it permissibly offered employment to the former Aramark employees on new terms because it submitted a copy of its handbook with the bid proposal to the Peekskill School District and because it gave out the handbook when it hired the employees. The Respondent also argued that the management rights clause of Aramark's agreement with the Union gave it the right to make unilateral changes in the disciplinary policy for unit employees. [HTML] [PDF]

Charges filed by AFSCME Local 1000; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, March 23 and April 20, 1998. Adm. Law Judge Eleanor MacDonald issued her decision Dec. 10, 1998.

Detroit Newspapers, et al. (7-CA-38184; 327 NLRB No. 164) Detroit, MI March 15, 1999. In this Supplemental Decision and Order, the Board majority declined to overrule Service Electric to the extent that it permits an employer unilaterally to set different terms and conditions for striker replacements during a strike. In so doing, the majority affirmed the administrative law judge's finding that the Respondents did not violate Section 8(a)(5) of the Act by unilaterally setting the terms and conditions of employment for striker replacements hired during a 1995 strike by unions representing employees at the Detroit News and the Detroit Free Press. The two major reasons cited by the majority are: (1) Under Mackay, an employer has the right to hire replacements. To require bargaining would effectively "nullify the [employer's] right to hire replacements," thereby impinging on the employer's Mackay right, and (2) in addition to the general delay and disruption that would result from bargaining about strike replacements, there is reasonable concern that the union would not be a vigorous bargainer for the replacement employees because of a direct conflict of interest between the strikers and their replacements. In addition, the majority rejected the General Counsel's alternative contention that Service Electric should not apply to unfair labor practice strike situations, and the dissents' analogy between a struck employer under the Railway Labor Act and the NLRA. [HTML] [PDF]

Dissenting, Members Fox and Liebman would overrule Service Electric and the earlier precedents as inconsistent with the basic policies of Section 8(a)(5). In the absence of any showing that strike exigencies justified the failure to bargain over the terms and conditions of employment for striker replacements, they would find that the Respondents violated Section 8(a)(5) and (1).

Erickson's Diversified Corp. d/b/a St. Peter More-4 (18-RC-16330; 327 NLRB No. 152) St. Peter, MN March 17, 1999. After considering objections to an election where the tally was 51 for and 17 against Food and Commercial Workers International, with 12 challenged ballots, a number insufficient to affect the results, the majority certified the Union as the collective-bargaining representative. Contrary to dissenting Member Hurtgen, for the reasons set forth in Millsboro Nursing & Rehabilitation Center, 327 NLRB No. 153 (March 17, 1999), the majority adhered to Board and court precedent involving alleged objectionable conduct based on the prounion activities of statutory supervisors. [HTML] [PDF]

Millsboro Nursing & Rehabilitation Center, Inc. (5-RC-14563; 327 NLRB No. 153) Millsboro, DE March 17, 1999. After considering objections to an election where the tally was 78 for and 53 against Food & Commercial Workers Local 27, with one challenged ballot, a number insufficient to affect the results, a Board majority certified the Union as the exclusive collective-bargaining representative. In so doing, the majority rejected the Employer's allegation that election proceedings were tainted by the prounion conduct of supervisors, including active support for the Union by the Employer's charge nurses. The majority agreed with the hearing officer, who applied the two-part test in Sutter Roseville Medical Center and recommended overruling the objection because (1) the Employer clearly communicated its antiunion position to employees early in the campaign, and (2) no threats or promises of benefits were made by the charge nurses. Member Hurtgen, who dissented in part, agrees with the majority with respect to the first part of the test, but disagrees as to the second part of the test, stating that "supervisory solicitation is coercive, even in the absence of an explicit threat." The majority rejected the per se rule favored by the dissent, finding that the charge nurses' card solicitations did not contain coercive "seeds" of potential reprisal, punishment, or intimidation. In addition, the majority found as "not apt" the dissent's analogy of the instant case to cases involving supervisory solicitation of employees to revoke their authorization cards. [HTML] [PDF]

Detroit Newspaper Agency d/b/a Detroit Newspapers, et al. (7-CA-37361, et al.; 327 NLRB No. 146) Detroit, MI March 4, 1999. Finding it untimely raised and lacking in merit, the Board denied the Respondents' Motion for Reconsideration of the Board's Aug. 27, 1998 rulings that the strike by members of the Metropolitan Council of Newspaper Unions was an unfair labor practice strike and that strikers are entitled to reinstatement. In so doing, the Board rejected the Respondents' arguments that the Board erred when it found that the Unions' insistence on adherence to the multistage, joint bargaining procedure was lawful, and that the strike undertaken, in part, to protest the abrogation of the joint bargaining agreement, was an unprotected strike rather than an unfair labor practice strike. The Board stated: "[A]lthough Respondent DNA's breach of the joint bargaining agreement was undisputedly a cause of the ensuing strike, as were the unfair labor practices of Respondent News, the record does not show that the Unions sought through the strike to condition further bargaining about mandatory subjects on Respondent DNA's return to the parties' prior agreement on a nonmandatory subject of bargaining. Simply stated, the Unions' conduct in bargaining and in striking did not bear the hallmark of a Borg-Warner unfair labor practice. It was not 'in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining.'" [HTML] [PDF]

Boardwalk Motors (20-CA-26507; 327 NLRB No. 142) Redwood City, CA Feb. 26, 1999. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by soliciting its employees to withdraw their support from Auto Workers Lodge 1414, interrogating its employees regarding why they supported a union, and threatening to terminate them if a contract ratification vote was delayed. The judge dismissed, with Board approval, the complaint allegation that the Respondent violated Section 8(a)(3) by constructively discharging shop steward Matthew Mattos. The judge found that Mattos was not faced with such requisite provocation that his impulsive quitting was an action attributable to Respondent. [HTML] [PDF]

Charge filed by Auto Workers Lodge 1414; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Mateo, May 9-10, 1996. Adm. Law Judge David G. Heilbrun issued his decision May 29, 1997.

Television Artists AFTRA Portland Local (KGW Radio) (36-CB-1491, 1523; 327 NLRB No. 147) Portland, OR March 4, 1999. Chairman Truesdale and Members Fox, Liebman, and Hurtgen denied the Respondent's Motion for Partial Reconsideration of a prior decision and order (327 NLRB No. 97) that found the Union unlawfully charged the Charging Party, a nonmember dues-paying objector, the full initiation fee and violated its duty of fair representation by not providing information sufficient to enable the Charging Party to determine whether to challenge the Union's dues-reduction calculations. Member Brame, dissenting, would grant the Charging Party's motion for the reasons stated in his dissent in that decision. [HTML] [PDF]

In his motion, the Charging Party contended that the Board erred in holding that the Respondent could meet its disclosure obligation to him by providing information concerning expenditures by its parent union, i.e., supported by a "local presumption," as an alternative to providing information on its own expenditures verified by an independent accountant. The Charging Party referred to the Acting General Counsel's August 17, 1998 memorandum that sets forth guidelines to Regional Directors and other Regional Office employees concerning the processing of cases implementing the Supreme Court's Communications Workers v. Beck decision, 487 U.S. 735 (1988). Specifically, the Charging Party cited the portion of the memorandum concerning a charging party fee objector's burden of presenting sufficient evidence to support a charge alleging improper agency fee charges. The Charging Party contended it would be effectively impossible for an objector to meet this burden if the Board's approval of the use of the local presumption is not reconsidered and reversed.

The majority noted that the Charging Party's obligation to provide evidentiary support for a charge in order to initiate an investigation by the General Counsel was not at issue in the underlying decision; that the Acting General Counsel's memorandum predated the issuance of the decision approving the use of the local presumption and does not discuss how the General Counsel will investigate charges supported by locally presumed documentation; and that the Charging Party should "take up" with the General Counsel any foreseen problem regarding the failure to fully investigate charges, as appropriate, filed by objectors who have been given locally presumed figures. Member Hurtgen further noted that, in any event, the Board's decision in this case "was simply that the Union's use of a local presumption is not itself unlawful. The Board did not pass on whether a union can rely solely on a local presumption as a defense to a charge of seeking to collect an improper amount of dues."

Mauka, Inc. (8-CA-27263, et al.; 327 NLRB No. 148) Mentor, OH March 8, 1999. While affirming most of the administrative law judge's findings, the Board reversed the judge and found that employee Cregg Law was an unfair labor practice striker entitled to reinstatement by the Respondent upon his unconditional offer to return to work. In contrast to the judge who found Law's strike was not concerted, the Board determined that Law's strike was a direct outgrowth of his activities on behalf of the Union and was engaged in to protest the Respondent's unfair labor practices committed in the context of the Union's organizing campaign. [HTML] [PDF]

Charges filed by Electrical Workers IBEW Local 673; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Cleveland, Sept. 6-7, 1995. Decision issued by Adm. Law Judge Richard A. Scully, March 13, 1996.

People Care, Inc. (2-CA-27207, et al.; 327 NLRB No. 144) New York, NY March 9, 1999. The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (5) by failing, refusing, and delaying furnishing the Union with certain requested information; by refusing to meet at reasonable times for bargaining with the Union; and by insisting upon the removal of union negotiator Richard Levy as a condition for the continuation of collective bargaining. The judge's recommended Order was modified to comport with Excel Container and to clarify the Respondent's obligation to provide requested information. [HTML] [PDF]

Charges filed by National Health and Human Service Employees 1199; complaint alleged violations of Section 8(a)(1) and (5). Hearing at New York, Dec. 18, 1995, May 21, June 12 and 28, and Oct. 24, 1996. Decision issued by Adm. Law Judge Steven Davis, July 16, 1997.

Randall Rents of Indiana (13-RC-19777, et al.; 327 NLRB No. 157) Portage, IN and Elmhurst, IL March 12, 1999. The Board adopted the hearing officer's recommendations with respect to certain objections pertaining to an election in which the bargaining unit employees voted for representation from Production Workers of Chicago and Vicinity Local 707 rather than Operating Engineers IUOP Local 150. However, contrary to the hearing officer, the Board overruled Local 150's objections that the Employer's issuance of bonuses influenced the outcome of the election. Citing Showell Poultry, the Board stated that even if the Employer engaged in objectionable conduct, there is no evidence that this conduct affected Local 150 any differently than it did Local 707; rather, the alleged objectionable conduct equally affected both unions. Despite any alleged interference, the Board noted that Local 707 enjoyed overwhelming support by the voters. Thus, the Board certified Local 707 as the collective-bargaining unit's representative. [HTML] [PDF]

Dorsey Trailers, Inc. (4-CA-23996, et al.; 327 NLRB No. 155) Northumberland, PA March 12, 1999. A Board majority upheld the administrative law judge's findings that the Respondent violated Section 8(a)(1), (3), and (5) of the Act by, among other things, threatening employees with plant closure and job loss if they went on strike, refusing to immediately reinstate strikers upon their unconditional offer to return to work, unilaterally implementing a new attendance policy without first bargaining with the Union, and permanently transferring all bargaining unit work from its Northumberland plant to its Cartersville, Georgia plant and closing its Northumberland plant without first giving the Union reasonable notice and an opportunity to bargain over the decisions. On appeal, the Board affirmed the judge's exclusion from evidence of an arbitrator's decision and a collective-bargaining agreement that the Respondent argued would have provided a defense to its unilateral changes in the attendance policy. While Member Hurtgen concurred in part with the majority, he dissented in part and found that one component of the unilateral change in the attendance policy did not violate Section 8(a)(5). He agreed that the Respondent violated the Act by transferring bargaining unit work from Pennsylvania to Georgia, and closing the Pennsylvania plant. However, he did not pass on whether the Respondent engaged in bad-faith bargaining on this subject, whether it presented the Union with a fait accompli, or whether the closing and retaliation was motivated by a desire to retaliate against employees for having gone on strike. Instead, he found that the parties did not reach an impasse over the relocation and closure decisions, and thus, the implementation of those decisions violated Section 8(a)(5). [HTML] [PDF]

Charges filed by Auto Workers International and its Local 1868; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Shamokin, PA, Nov. 18-21, 1996. Decision issued by Adm. Law Judge George Aleman, Dec. 1, 1997.

American Freightways, Inc. (8-RC-15675; 327 NLRB No. 154) Brook Park, OH March 12, 1999. Members Fox and Liebman, agreeing with the hearing officer that the Employer engaged in objectionable conduct by soliciting grievances and promising to remedy them, sustained the Union's objection and set aside an election held February 6, 1998 that Teamsters Local 407 lost 49 to 34. Member Hurtgen, dissenting, would find that the Employer "was simply following through with a pre-critical-period program of addressing employee concerns, with an eye toward rectifying them if such concerns were valid." [HTML] [PDF]

Benchmark Mechanical Contractors, Inc. (9-RC-17037; 327 NLRB No. 151) Chillicothe, OH March 11, 1999. Members Fox and Liebman affirmed the Regional Director's finding that Jack Emmons was not a statutory supervisor, overruled the challenge to his ballot, and directed that the ballot be opened and counted and that a certification of representative be issued if the revised tally of ballots shows that Plumbers Local 189 received a majority of the valid ballots cast. Member Hurtgen, dissenting, agreed with the Employer that Emmons was a supervisor at the time of the March 5, 1998 election. In the absence of exceptions, the Board adopted pro forma the Regional Director's recommendation to sustain the challenge to the ballot of Paul Zickafoose. The Union's objections are being held in abeyance pending completion of the investigation in Case 9-CA-35780. [HTML] [PDF]

Emmons was hired as a welder in August 1997 and was promoted to a non-supervisory foreman position in October 1997. On about February 24, 1997, superintendent McCray approached Emmons about a general foreman position (a $1 per hour raise) on a job in Hazard, Kentucky, from March 9 through April 3. Emmons agreed to take the position. On March 3, McCray informed Emmons that he would not be allowed to vote in the election because he had been selected as the foreman on the Hazard job. Emmons continued performing unit work until the March 5 election and voted subject to challenge. Later that day Emmons quit his employment. Upon receiving his paycheck on March 12, Emmons discovered that he had been given a $1 raise effective March 2.

Members Fox and Liebman wrote: "In these circumstances, where the supervisory position is of such limited duration, where Emmons had not previously acted with supervisory authority, and where there is no showing of any likelihood to serve as a supervisor in the future (even had he not quit his employment), we find that the general foreman assignment is insufficient to extinguish Emmons' community of interest with other employees." Dissenting Member Hurtgen noted that his colleagues do not dispute that Emmons was a supervisor on the Hazard job, but instead assert that his supervisory position was one of limited duration. The record does not support such a definitive conclusion and it is contradicted in the majority opinion itself, Member Hurtgen said. In his view, once supervisory status is shown to exist, that status is presumed to continue until the contrary is shown. There was only a showing that the supervisory status might come to an end at the conclusion of the Hazard, Member Hurtgen pointed out. There was no showing that Emmons would revert to employee status.

Metropolitan Opera Association (2-RC-21699; 327 NLRB No. 136) New York, NY Feb. 26, 1999. Members Fox and Liebman denied the Petitioner's (Operatic Artists of America) request for review of the Regional Director's decision and order dismissing the petition to sever a unit of choristers (regular, steady extra, and extra choristers) from the broader unit that has been represented by the Intervenor, American Guild of Musical Artists, for over 30 years. The historical unit comprises all of the employees who appear onstage during performances (choristers, soloists, and dancers) and the employees who direct and choreograph their actions and performance (stage managers, stage directors, and choreographers). Citing Mallinckrodt Chemical Works, 162 NLRB 387 (1967), Members Fox and Liebman refused to sever the choristers from the historically established bargaining unit, stating: "While we recognize that the choristers have certain distinct functions and interests that are not common to all unit members, we agree with the Regional Director that the choristers do not constitute a distinct and homogenous group (or true craft unit) in the traditional sense and are not a functionally distinct department of the Employer." [HTML] [PDF]

Dissenting Member Hurtgen would grant review, finding that the Petitioner has raised substantial issues as to whether, on balance, the Mallinckrodt factors weigh in favor of severing the chorus from the unit.

American Postal Workers (Postal Service) (3-CB-6901(P), 7089(P); 327 NLRB No. 139) Buffalo, NY Feb. 26, 1999. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(b)(1)(A) of the Act by failing to process grievances of Alan Haungs concerning his supervisory evaluations because he filed charges with the NLRB. The Board modified the judge's make-whole remedy to conform with Iron Workers Local 377 (California Iron Workers Employers Council), 326 NLRB No. 54 (1998), which issued subsequent to the judge's decision, requires the General Counsel to establish the meritoriousness of the grievance before backpay liability against the union is assessed, and limits the union's liability to the portion of the employee's damages caused by the union's mishandling of the grievance. The merits of the grievances 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 grievances through the contractual procedure. As set forth in his partial dissent in California Iron Workers Employers Council, Member Hurtgen would order a full make-whole remedy in the event that the General Counsel can meet his evidentiary burden at compliance regarding the merits of the grievances. [HTML] [PDF]

Charges filed by Alan Haungs, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Buffalo, Sept. 22 and 23 and Dec. 3 and 4, 1997. Adm. Law Judge Steven Fish issued his decision Aug. 21, 1998.

Claridge Casino & Hotel (4-CA-24078, 24090; 327 NLRB No. 138) Atlantic City, NJ Feb. 24, 1999. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily discharging Francis White, an employee who was "highly regarded" but who was one of the primary in-house union organizers. The judge determined that the Company's reason for discharging White was pretextual and that it failed to prove that it would have fired White in the absence of his union activity. [HTML] [PDF]

Charges filed by Sharon Ponzetti, an individual, and Police, Security & Corrections Officers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, PA, Jan. 21 and Feb. 23-24, 1998. Decision issued by Adm. Law Judge Marion Ladwig, June 19, 1998.

United Refining Co. (6-CA-29859; 327 NLRB No. 143) Warren, PA Feb. 26, 1999. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by changing the terms and conditions of employment of the warehouse employees to discourage union membership. The Board also agreed with the judge's findings that the Respondent violated Section 8(a)(1) by unilaterally imposing terms and conditions of employment on the warehouse employees, and refusing to bargain collectively with the Union. (No exceptions were filed to the judge's dismissal of other alleged violations.) The majority, with Member Fox disagreeing, did not adopt the judge's finding that the Respondent also violated Section 8(a)(5) by requiring warehouse employees to punch a timeclock. In addition, the Board corrected an inadvertent error of the judge's and found unlawful the Respondent's unilateral change in the vacation pay rate of warehouse employees. Certain modifications in accordance with the Board's findings were made to the judge's recommended order. [HTML] [PDF]

Charge filed by Operating Engineers Local 95, 95A; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Warren, Aug. 19, 1998. Decision issued by Adm. Law Judge Jerry M. Hermele, Nov. 10, 1998.

E.S.P. Concrete Pumping, Inc. (4-CA-20570; 327 NLRB No. 134) Sweet Valley, PA Feb. 23, 1999. In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by repudiating its collective-bargaining agreement with the Union. The Board rejected the Respondent's contention that the judge erred in finding that it was bound by an 8(f) agreement in the absence of a signed commitment and reliance on dicta in Garman Construction Co., in which the Board stated that it did not find the "adoption-by-conduct rule applicable in 8(f) cases." The Board found that "the principals of 'adoption-by-conduct' of a collective-bargaining agreement, properly understood, are applicable to agreements covered by Section 8(f) as well as Section 9(a), and that once an employer has voluntarily adopted a contract, it is foreclosed under John Deklewa & Sons from repudiating it during its term. To the extent that the Garman dicta is to the contrary, that case is overruled." (Member Hurtgen finds it unnecessary to overrule Garman.) [HTML] [PDF]

Charge filed by Bricklayers Local 47; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Pottsville, PA, Nov. 16, 1992. Decision issued by Adm. Law Judge Hubert E. Lott, Aug. 31, 1993.

Pacific Micronesia Corp. d/b/a DAI-ICHI Hotel Saipan Beach (37-CA-5262; 327 NLRB No. 131) Garapan, Island of Saipan, CNMI Feb. 22, 1999. The Board found that the Respondent failed to raise any issue that is properly litigable in this unfair labor proceeding and that, with the exception of item 8 concerning work that "would otherwise be considered bargaining unit work," there are no factual issues warranting a hearing with respect to the Union's request for information. The Board remanded that issue to the Regional Director since the information is not presumptively relevant and thus, not appropriate for resolution in a summary judgment proceeding; granted the General Counsel's motion for summary judgment; and ordered the Respondent to bargain with Hotel Employees & Restaurant Employees Local 5 and, with the exception of item 8, to furnish it the information requested. [HTML] [PDF]

Charge filed by Hotel Employees & Restaurant Employees Local 5; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment Dec. 28, 1998.

The Knoxville News Sentinel Co. (10-CA-29069; 327 NLRB No. 135) Knoxville, TN Feb. 23, 1999. The Board affirmed the administrative law judge's dismissal of the complaint alleging that the Respondent unilaterally altered the scope of the bargaining unit in violation of Section 8(a)(5). The judge found that the Respondent, in an effort to settle the Union's September 28, 1995 work-related grievance, agreed "that the handling of advertising material has never been bargaining unit work" and informed the Union that it would "effective immediately" reassign "special publications as a department reporting to the general manager [outside the bargaining unit.]" The Respondent agreed, in writing, to bargain about "the effects of this decision on the three affected bargaining unit employees." The Union failed to raise any objection to the Respondent's proposal at the parties' October 4, 1995 meeting and remained silent for 6 weeks thereafter, the judge observed in concluding that the Union consented to, or acquiesced in, the Respondent's solution of its grievance. [HTML] [PDF]

Charge filed by Newspaper Guild Knoxville Local 76; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Knoxville on June 5, 1996. Adm. Law Judge William N. Cates issued his decision Aug. 29, 1996.

Electrical Workers IBEW Local 724 (Albany Electrical) (3-CB-7097, et al.; 327 NLRB No. 137) Albany, NY Feb. 25 1999. Members Hurtgen and Brame affirmed the administrative law judge's finding that the Union violated Section 8(b)(1)(A) and (2) of the Act by failing and refusing to refer David James to employment. The judge found that the Respondent treated James differently than it did other "short-call" referrals who worked more than 40 hours, but less than 80 to 120 hours, when it removed his name from the referral list. Members Hurtgen and Brame agreed that the Union's conduct was arbitrary because, although the Union's treatment of James was consistent with its written rules, it was contrary to the manner in which other employees were treated. [HTML] [PDF]

Member Fox, dissenting on this issue, agreed with the Union that by her colleagues' reasoning, it is placed in an impossible "Catch-22" dilemma whereby removing James' name from the list and not removing his name from the list would equally have constituted violations of the Act. Members Hurtgen and Brame pointed out however that the violation concerning the other employees (the failure to follow the contract) and the violation concerning James (treating him differently from the others) are each discriminatory for different reasons. They wrote: "Concededly, the differential treatment of James was that he, unlike the others, was treated in conformity with the contract. However, this does not give rise to a 'Catch 22' situation. . . . The Respondent could have avoided all violations by treating everyone in accord with the contract."

No exceptions were filed to the judge's findings that the Union violated Section 8(b)(1)(A) and (2) by failing to operate its hiring hall in conformity with the written requirements of its collective-bargaining agreement with Albany Electrical Contractors Association. The judge found that the Union failed to adhere to written rules requiring applicants to resign the out-of-work book every 30 days, failed to enforce referral rules applicable to registrants who were over age 50, and failed to enforce contractual requirements pursuant to the "short call" definition of 40 hours, which identified jobs that an applicant could accept without losing his place on the referral list. The Board modified the judge's recommended Order to provide a make-whole remedy for users of the Union's hiring hall who were adversely affected by the Respondent's failure to comply with contractual referral rules between May 22, 1996 and February 28, 1997.

Charges filed by Richard Hagerty Jr., Vincent Daly, and David James, individuals; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Albany on Aug 5, 1997. Adm. Law Judge Joel P. Biblowitz issued his decision Oct. 7, 1997.

Keeler Brass Co. d/b/a Keeler Die Cast (7-CA-39853, et al.; 327 NLRB No. 112) Grand Rapids, MI Feb. 12, 1999. The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (3) of the Act by withholding from unit employees the increase in pension benefits that was given to its non-union employees at other plants, withholding an annual across-the-board wage increase, unilaterally discontinuing free flu shots, and promulgating a new work rule subjecting unit employees to immediate dismissal for "rummaging through the trash." The judge also found, with Board approval, that the Respondent violated Section 8(a)(1) and (5) by unilaterally making some changes to work schedules, the availability of overtime, insurance coverage, and vacation time, and failing and refusing to provide the Union with relevant and necessary information. [HTML] [PDF]

Charges filed by Auto Workers; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Grand Rapids, April 30, 1998. Decision issued by Adm. Law Judge Wallace H. Nations, Sept. 30, 1998.

Earthgrains Baking Companies (32-CA-16153; 327 NLRB No. 115) Oakland, CA Feb. 12, 1999. The administrative law judge concluded, with Board affirmance, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union with pricing information on certain products deemed to be relevant and necessary to its performance as the collective-bargaining representative. [HTML] [PDF]

Charges filed by Teamsters Local 490; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Oakland, May 6, 1998. Decision issued by Adm. Law Judge Joan Wieder, June 30, 1998.

J.K. Guardian Security Services (13-CA-33699; 326 NLRB No. 116) Chicago, IL Feb. 12, 1999. The Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by discharging employee Steven Kissel for union activities on behalf of the Independent Guards and Watchmen of America. In so doing, the Respondent's affirmative defense that it discharged Kissel because he allegedly ignored equipment and uniform regulations was rejected as pretextual. [HTML] [PDF]

Charge filed by Steven Kissel, an individual; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago, Dec. 16-17, 1996, and April 15, 1998. Decision issued by Adm. Law Judge Albert A. Metz, June 29, 1998.

Gorges/Quik-To-Fix Foods (16-CA-18633-2; 327 NLRB No. 124) Garland, TX Feb. 17, 1999. The Charging Party excepted only to the administrative law judge's finding that employee Maria Chapa did not solicit signatures on the decertification petition during work time. The Board rejected the Charging Party's arguments with respect to this finding and affirmed the judge's dismissal of the complaint. No exceptions were filed to the administrative law judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1) of the Act by maintaining overly broad work rules regarding solicitation, by unlawfully assisting an employee with the circulation of a decertification petition, and by selectively or disparately allowing an employee to circulate a decertification petition during working time. [HTML] [PDF]

Charge filed by Food and Commercial Workers Local 540; complaint alleged violation of Section 8(a)(1). Hearing at Forth Worth, TX, Feb. 12-13, 1998. Decision issued by Adm. Law Judge William N. Cates, May 1, 1998.

Aero Ambulance Service (22-CA-20950, 22-RC-11132; 327 NLRB No. 128) Hackensack, NJ Feb. 17, 1999. The Board upheld the administrative law judge's conclusions made in his Supplemental Decision and Order in which the judge made, at the request of the Board on remand, certain factual findings and credibility determinations. In his earlier decision, the judge found that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employees Michael Goldblatt and Guy Greene because of their union activities, and violated Section 8(a)(1) by interrogating employees about their union activities and membership. In that decision, the judge also dismissed charges that the Respondent violated the Act by discharging Thomas Hoehl by more strictly enforcing its rules regarding eating, drinking, or smoking in company owned vehicles. In his Supplemental Decision and Order, the judge reaffirmed these earlier conclusions based on additional findings of fact and credibility determinations. [HTML] [PDF]

Charge filed by Teamsters Local 617; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Newark, NJ, Dec. 9-12, 1995. Decision issued by Adm. Law Judge Steven Davis, Sept. 19, 1997. Supplemental Decision issued by Judge Davis, July 23, 1998.

Iroquois Foundry Systems (3-CA-20760; 327 NLRB No. 129) Waverly, NY Feb. 17, 1999. In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to permit employee David Rae to retract his alleged voluntary quit and return to work because of his union activity. The Board affirmed the judge's finding that the Respondent did not violate Section 8(a)(1) by allegedly informing Rae that he had been terminated because of his union activity. [HTML] [PDF]

Charge filed by Teamsters Local 529; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Elmira, NY, May 27, 1998. Decision issued by Adm. Law Judge Joel P. Biblowitz, Aug. 19, 1998.

Allegany Aggregates, Inc. (5-RC-14460; 327 NLRB No. 123) Flintstone, MD Feb. 18, 1999. The Board overruled the Petitioner's objections to an election where the tally was 10 ballots for and 11 against the Petitioner, Operating Engineers (IUOE) Local 37, with a determinative number of challenged ballots, and rejected the hearing officer's recommendation to sustain the challenge to the ballot of "floater" David Miller. Specifically, the Board overruled the hearing officer and determined that the Employer's placement of a coffee pot and water cooler in a trailer used by employees was not the granting of a benefit or the enhancement of a benefit to influence the outcome of the election. The Board also overruled the hearing officer and found that, when agents of the Employer advised employees during the critical period that a showup pay policy was still in effect, they were not announcing a new benefit and it did not constitute objectionable conduct. Contrary to the hearing officer and the Regional Director, the Board concluded that Miller shares a community of interest with unit employees. The Board ordered the ballots of Miller and employees William Weaver and Ralph Readd to be opened and counted, and for a revised tally to issue. The proceeding was remanded to the Regional Director for further action consistent with the Board's Order and Direction. Member Hurtgen, noting certain facts in the record, dissents with respect to the conclusion that employee Readd is eligible to vote and would remand this issue. [HTML] [PDF]

Banknote Corp. of America (2-CA-24304; 327 NLRB No. 118) New York, NY Feb. 16,1999. In this Supplemental Decision and Order, the Board modified the administrative law judge's backpay determination because the judge inadvertently included contributions to the Unions' welfare funds for two former employees. In addition, the Board agreed with the judge's finding that the Respondent must make the union pension funds whole without offset because the substitute pension plans implemented by the Respondent were not equivalent to the union pension plans. [HTML] [PDF]

Adm. Law Judge Raymond P. Green issued his Supplemental Decision, April 13, 1999.

Browning-Ferris Industries of California, Inc. (20-RC-17283; 327 NLRB No. 130) San Carlos, CA Feb. 19, 1999. A Board majority of Members Fox and Liebman agreed with the Acting Regional Director's recommendation that an election be set aside because the Board agent's actions in effect denied the Union (Sanitary Truck Drivers Local 350) its right to have observers at the election. The stipulated election agreement provided for each party to have an equal number of observers. However, the Board agent allowed the election to proceed with two observers for the Employer present and no observers for the Union present - a material breach which mandates setting aside the election without the need for a showing of prejudice. Here, the Union had proposed to use as observers two former employees of the Employer. Initially, the majority noted that the election agreement required only that the observers be "nonsupervisory employees" not that they must be employees of the Employer. Even if the agreement required that the observers be employees, the majority stated that it does not justify the Board agent's decision. The majority explained that the procedure to be followed in the event the eligibility of an observer may be challenged is not to prohibit the party from using the observer, but to put the parties on notice that the use of the ineligible observer may later result in the setting aside of the election results, and to allow the election to proceed with that understanding. Dissenting, Member Hurtgen would not set the election aside because, in part, the Board agent denied the Union's use of nonemployee observers on the ground that the denial was in accord with Section 11310 of the Board Casehandling Manual which provides that "observers must be nonsupervisory employees of the employer, unless a written agreement by the parties provides otherwise." [HTML] [PDF]

Outdoor Venture Corp. (9-CA-34709; 327 NLRB No. 133) Stearns, KY Feb. 19, 1999. Dismissing the Respondent's Motion for Summary Judgment, the Board ruled that a settlement agreement in a prior case did not bar litigation of the complaint allegation in this case that a strike by the Respondent's employees was converted to an unfair labor practice strike. The Board said the agreement in the earlier case "specifically reserved the General Counsel's right to use the settled conduct for the purpose of establishing the unfair labor practice strike allegation in the instant case." [HTML] [PDF]

The panel cited Council's Center for Problems of Living, 289 NLRB 1122, 1141-1143 (1988), as supporting its finding that there is no settlement bar in this case, and said Jackson Mfg. Co., 129 NLRB 460 (1960), relied on by the Respondent, is distinguishable since "there was no reservation language in the settlement agreement permitting the judge, the Board, or the courts to make findings of fact and conclusions of law with respect to the settled conduct."

Charges filed by UNITE, Tennessee & Kentucky Division; complaint alleged violation of Section 8(a)(3) and (1). Respondent filed Motion for Summary Judgment, Aug. 7, 1997.

Westside Community Mental Health Center, Inc. (20-CA-27727, et al.; 327 NLRB No. 125) San Francisco, CA Feb. 19, 1999. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by refusing to provide Service Employees Local 790 with requested information relevant to the performance of its duties as collective-bargaining representative; unilaterally, without prior notice to the Union, and discriminatorily implementing a new policy concerning how employees could use their lunch hours and compensatory time; denying employee requests to be represented by a union representative during investigatory interviews in which they had reason to believe disciplinary action would be, and in fact, was taken against them; and prohibiting employees from discussing their discipline at any time. The Board modified the judge's recommended Order in various respects, including to provide the standard remedy for the unlawful denial of employee requests for union representation at investigatory interviews that they reasonably believed might result in disciplinary action against them, and by substituting a narrow cease-and-desist order for her broad one. [HTML] [PDF]

Charges filed by Service Employees Local 790; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at San Francisco on Jan. 20, 1998. Adm. Law Judge Joan Wieder issued her decision April 2, 1998.

Teamsters Local 259 (Globe Newspaper Co.) (1-CD-994; 327 NLRB No. 117) Boston, MA Feb. 16, 1999. The Board determined that employees of Globe Newspaper Company represented by Teamsters Local 259, rather than Boston Mailers Teamsters Local 1, are entitled to perform the work involving the offloading of the non-Globe products upon delivery to the Employer's facility at Morrissey Boulevard, Boston, Massachusetts, from various production points in New Jersey, Connecticut, and Massachusetts, and the subsequent sorting and reloading of the non-Globe products onto the Employer's trucks for distribution by the Employer. In awarding the disputed work, the Board relied on collective-bargaining agreements, the Employer's preference and past practice, and economy and efficiency of operations. [HTML] [PDF]

By letter dated May 26, 1998, Local 259 threatened economic action against the Employer in the event of a reassignment of the disputed work to employees represented by Mailers. In finding no merit to the Mailers' assertion that it has not claimed the disputed work, the Board relied on: (1) the gravamen of Mailers' grievance which seeks an arbitrator's interpretation of the term "mailroom," in light of Mailers' assertion that the sorting tables and bins in the delivery department used in the distribution of the non-Globe products constitute a mailroom, and that the Employer violated the jurisdiction provisions of its collective-bargaining agreement with Mailers by assigning the disputed work to Local 259-represented employees, because that work is performed in a "mailroom"; (2) Mailers' claim for the disputed work at the joint board hearing on May 28, 1998; and (3) Mailers' continued pursuit of its grievance and arbitration demand. The Board rejected Mailers' motion to quash the notice of hearing based on its argument that the filing of an arguably meritorious grievance does not constitute coercion within the meaning of Section 8(b)(4)(D). It wrote: "The Employer filed a charge against Local 259, not Mailers, and thus whether Mailers' grievance is coercive within the meaning of Section 8(b)(4)(D) is not at issue."

National Association of Government Employees Local 5000, SEIU (34-CA-6997; 327 NLRB No. 126) Cromwell, CT Feb. 19, 1999. With minor exceptions, the Board agreed with the administrative law judge's analysis of unfair labor practice issues in which he found that the Respondent Union violated Section 8(a)(1), (3), and (5) of the Act. The Board disagreed with the judge's recommendation that the Board formally and severely censure the Respondent's President, Kenneth Lyons, for statements he made in a posthearing letter he sent to the judge. While finding that the statements were "opprobrious and inappropriate," the Board held that the judge's recommendation of censure is "too severe in the circumstances of this case," and noted in particular that there is no evidence of prior misconduct by Lyons in connection with Board proceedings. Instead, the Board warned Lyons and the Respondent that future similar conduct by the Respondent's president as a representative of the union before the Board could be referred to the General Counsel for disciplinary proceedings. [HTML] [PDF]

Charges filed by Auto Workers Local 376; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Hartford, CT, June 18-21, 1996. Decision issued by Adm. Law Judge Steven Fish, June 3, 1997.

Corrections Corp. of America (5-RC-14767; 327 NLRB No. 127) Washington, D.C. Feb. 10, 1999. The majority, Members Hurtgen and Brame, denied the Intervenor National Professional Corrections Employees Local 1's and the Employer's requests for review of the Regional Director's Decision and Direction of Election because they raise no substantial issues warranting review. In agreement with the Regional Director's finding that there is no contract bar, the majority applied Monsanto Chemical Co. for the rule that an agreement between an employer and a union representing a mixed guard/nonguard unit will not bar a petition for a guard-only unit. Dissenting, Member Liebman would grant the requests for review to reexamine the Board's interpretation of Section 9(b)(c) of the Act and to reconsider Monsanto. [HTML] [PDF]

Incisa, U.S.A., Inc. and Laborers Local 265 (9-CA-30158-1, 30158-2, 9-CB-8406 and 8411; 327 NLRB No. 111) Kenton County, KY Feb. 10, 1999. The administrative law judge found, and the Board agreed, that the Respondent Union violated Section 8(b)(1)(A) of the Act by seeking and accepting Section 9(a) recognition as the representative of certain employees working for Incisa at a time when a valid petition seeking to represent them by Charging Party Steelworkers was pending before the Board; and violated Section 8(b)(1)(A) and (2) by refusing Charging Party Granville Tackett's request not to join the Union by thereafter causing the Respondent Employer to terminate Tackett. [HTML] [PDF]

In a reversal of the judge, the Board found that the Respondent further violated Section 8(b)(1)(A) by failing to notify Tackett of his Beck rights at the time it sought to obligate him to pay fees and dues under the union-security clause. See California Saw & Knife Works, 320 NLRB 224 (1995). The Board's amended Remedy and Order included requirements that the Union notify Tackett of his rights under Communications Workers v. Beck, 487 U.S. 735 (1988), and NLRB v. General Motors Corp., 373 U.S. 734 (1964), including sufficient information, for the accounting period or periods covered by the complaint, to enable Tackett to decide intelligently whether to object, as well as a description of any internal union procedures for filing objections; and that the Union accept Tackett's tendered resignation from the Union.

No exceptions were filed to (1) the judge's recommended dismissal of the allegation that the Respondent Union violated Section 8(b)(2) by obtaining 9(a) recognition while a valid petition was pending and simultaneously maintaining a collective-bargaining agreement which contained a union-security clause; or (2) the judge's failure to pass on the allegation that the Respondent violated Section 8(b)(1)(A) by misinforming Tackett about his right under General Motors, to be a nonmember-i.e., by telling Tackett that he would have to join the Union as a condition of his continued employment with Incisa. The Board granted the General Counsel's, Employer's, and Steelworkers' motion to sever and remand Cases 9-CA-30158-1 and 30158-2 and motions to withdraw their exceptions in the cases. Cases 9-CA-30158-1 and 30158-2 were remanded to the Regional Director for further appropriate action.

Charges filed by the Steelworkers and Granville Tackett and J.C. Barker, individuals; complaint alleged violation of Section 8(a)(1) and (2), Section 8(b)(1)(A) and (2), and Section 8(b)(2). Hearing at Cincinnati, Sept. 28 and 19, 1993. Adm. Law Judge Donald R. Holley issued his decision Oct. 5, 1994.

Seaboard Marine, Ltd. (12-RC-8176; 327 NLRB No. 108) Miami, FL Feb. 15, 1999. The Board reversed the Acting Regional Director's determination that the petitioned-for unit was appropriate, vacated an election, and remanded the proceeding to the Regional Director for further action including determining an appropriate unit for collective bargaining, the adequacy of the Petitioner Longshoremen's Local 1922's showing of interest in such a unit, and the scheduling of a new election. Contrary to the Acting Regional Director, the Board found that the employees in the petitioned-for unit do not share a sufficiently distinct community of interest from other employees to warrant a separate unit and, therefore, that the unit grouping sought by the Petitioner is an arbitrary one. In rejecting the petitioned-for unit, the Board did not suggest a precise unit finding, noting that the record is insufficient to determine the composition of the appropriate unit. [HTML] [PDF]

Sea-Jet Trucking Corp. and A.P.A. Warehouses, Inc. (29-CA-18500; 327 NLRB No. 107) Bloomfield, N.J. Jan. 29, 1999. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Auto Workers concerning the effects on employees of the Respondent's relocation of its facility from Brooklyn, New York to Bloomfield, New Jersey; and that a Transmarine limited backpay remedy is appropriate. The Board disagreed with the judge's modification of the standard Transmarine remedy to include the employees' increased transportation costs or moving expenses in the backpay calculations, finding that the costs are issues over which the parties may bargain and that they are not germane to backpay computations. Transmarine Navigation Corp., 170 NLRB 389 (1968). [HTML] [PDF]

The Board modified the judge's remedy to conform with Transmarine remedy language changes adopted after issuance of his decision. See Melody Toyota, 325 NLRB No. 158 (1998). And, it modified the judge's remedy to delete general bargaining order language that does not apply to the type of 8(a)(5) violations found. The Board, noting that the Respondent did not give the Union any advance notice of its final decision to relocate, found it unnecessary to pass on the judge's statements in the second paragraph of Sec. III,B of his decision, concerning how far in advance an employer must notify a union when selling a business or relocating a facility. The Union's request for an award of attorney's fees was denied.

Charge filed by the Auto Workers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn, July 10, 11, and 24, 1996. Adm. Law Judge Jesse Kleiman issued his decision May 7, 1997.

Wells Aluminum Corp. (9-CA-29131, et al.; 9-RC-15953; 327 NLRB No. 119) Sidney, OH Feb. 11, 1999. On remand from the U.S. Court of Appeals for the Sixth Circuit, the Board made certain factual resolutions, reconsidered Employer's Objection 1 in light of the factual findings as well as the concerns expressed by the court, and affirmed the Board's overruling of Objection 1 in its earlier decision. The Sixth Circuit reversed and remanded the earlier decision for the Board to make "a reasoned resolution of factual questions surrounding the origin and initiation of the outsourcing issue and Wells' unfair labor practice charge that the union was guilty of making improper threats and/or offering improper inducements for pro-union votes in the election." In so doing, the Sixth Circuit directed the Board to analyze the United Auto Workers' threat or promise of benefits to prospective voters just as carefully as it had analyzed the unfair labor practice charge by the Union that the Employer threatened employees or wrongfully promised benefits to defeat the Union's organizing efforts. [HTML] [PDF]

Sommerville Construction Co. (25-CA-25276; 327 NLRB No. 99) Indianapolis, IN Jan. 29, 1999. The Board affirmed the administrative law judge's decision that the Respondent violated Section 8(a)(1) of the Act by untimely repudiating and failing to abide by the terms and conditions of its collective-bargaining agreement with Bricklayers Local 4 of Indiana and Kentucky. The Respondent did not file any exceptions to the judge's decision. The General Counsel, in limited exceptions, requested that the Board modify the judge's remedy to order that the Respondent remit to the Union dues-checkoff payments and mail the Notice to Employees to all employees that it employed at any time since executing the collective-bargaining agreement with the Union on October 31, 1995. The Board modified the remedy to require that the Respondent make the payments, but it ordered that the Respondent mail notices to all employees that it employed at any time since February 1, 1996, the approximate date that repudiation occurred. [HTML] [PDF]

Charge filed by Bricklayers Local 4 of Indiana and Kentucky; complaint alleged violation of Section 8(a)(1). Hearing at Indianapolis on Sept. 10, 1998. Adm. Law Judge James L. Rose issued his decision Nov. 20, 1998.

Main Street Terrace Care Center (9-CA-35620; 327 NLRB No. 101) Lancaster, OH Jan. 29, 1999. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by discharging Mary Craig because she engaged in protected concerted activities and by orally promulgating a rule prohibiting employees from discussing their wages among themselves. Member Hurtgen, in expressing his concern about possible implications of the judge's decision, pointed out that the judge specifically noted (1) the Respondent's "at will" employment policy and (2) the fact that the Respondent told Craig that it was not required to have a reason for the discharge. Member Hurtgen emphasized that a "prima facie case is not supported by a refusal to supply a contemporaneous justification for a discharge." Rather, he agreed that the prima facie case is supported by other facts found by the judge. "A failure to supply a contemporaneous justification for a discharge is a factor to be considered in determining whether there has been a rebuttal of the prima facie case," Member Hurtgen wrote. Since the judge did not rely on the existence of an "at will" employment policy or the refusal to supply a contemporaneous justification for a discharge in establishing a prima facie case, Chairman Truesdale and Member Fox found it unnecessary to address Member Hurtgen's comments. [HTML] [PDF]

Charge filed by Mary Catherine Craig, an individual; complaint alleged violation of Section 8(a)(1). Adm. Law Judge John H. West issued his decision Sept. 16, 1998.

R & D Trucking, Inc. (17-RC-11601; 327 NLRB No. 103) Columbia, MO Jan. 29, 1999. The Board reversed the Regional Director's Decision and Direction of Election with respect to his finding that the petitioned-for unit of drivers and dockworkers at the Employer's Interstate Drive location in Columbia, Missouri is appropriate; and affirmed the Regional Director's decision with respect to his exclusion of William Howard from the bargaining unit based on the job-related privileges afforded Howard as the son-in-law of the Employer's president. By order dated March 31, 1998, the Board granted the Employer's request for review of the Regional Director's decision. The Employer asserted that the unit petitioned for by Teamsters Local 833 must also include the drivers and dockworkers servicing the Employer's Textron account who work on location at Textron, as well as employee Howard. In this decision on review, the Board found that the single-facility presumption favoring a unit of employees at the Interstate location has been rebutted and that the smallest appropriate unit must include the Employer's drivers stationed at the Textron facility, and that Howard should be excluded from the unit because his interests are aligned with management. [HTML] [PDF]

Loewen Louisiana Holdings, Inc., Central Service Division (15-CA-15069; 327 NLRB No. 90) New Orleans, LA Jan. 29, 1999. Finding that the Respondent raised no issue properly litigable in this unfair labor practice proceeding, Members Fox and Liebman granted summary judgment; found that the Respondent, a provider of funeral support services, violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Service Employees Local 100; and entered cease-and-desist and bargaining orders. The Respondent admitted its refusal to bargain, but attacked the validity of the union's certification on the basis of the Board's unit determination in the underlying representation proceeding, Case 15-RC-8141. Member Brame dissented from the granting of summary judgment and the finding of a violation, noting his dissent from the denial of the Employer's request for review of the Regional Director's finding in Case 15-RC-8141 that the Employer's shift supervisors were not statutory supervisors and that they were properly included in the unit. [HTML] [PDF]

Charge filed by Service Employees Local 100; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed Motion for Summary Judgment Dec. 28, 1998.

Kenworth Truck Co., Inc. (9-CA-35631; 327 NLRB No. 94) Chillicothe, OH Jan. 29, 1999. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Mark Johnson because of his protected union and other concerted activities; and violated Section 8(a)(1) by maintaining an overly broad no-solicitation rule, engaging in surveillance of union activities, and soliciting employees to report the union activities of other employees. [HTML] [PDF]

Charge filed by Mark Johnson (an individual); complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chillicothe, May 27 and 28, 1998. Adm. Law Judge Robert T. Wallace issued his decision Nov. 3, 1998.

The Electric Group, Inc. (9-CA-35791; 327 NLRB No. 96) Cincinnati, OH Jan. 29, 1999. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by telling job applicant Jerry Baughn that it would not hire him because of his membership in Electrical Workers IBEW Local 683 and refusing to hire Baughn because of his union affiliation. The Board corrected the judge's inadvertent omissions by amending his Conclusions of Law and recommended Order and substituting a new Notice to reflect his finding that the Respondent unlawfully told Baughn that it would not hire him because of his union membership. [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 683; complaint alleged violation of Section 8(a)(1). Hearing at Cincinnati on Aug. 26, 1998. Adm. Law Judge Wallace H. Nations issued his decision Oct. 9, 1998.

Dutchess Resource Management, Inc. (3-CA-19145; 327 NLRB No. 98) Poughkeepsie, NY Jan. 29, 1999. The Board found, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by discharging statutory supervisor Daniel Butler because he would not modify the substance of his version of the incidents resulting in union steward Christopher Bittner's suspension and an arbitration thereon. In so doing, the Board rejected the Respondent's argument that the judge erred in finding the violation because the General Counsel did not establish that the Respondent sought to compel Butler to lie about the incidents. The Board explained: "Even assuming that the Respondent thought that other supervisors were telling the truth about the incidents and that the Respondent simply wanted Butler to conform his story to theirs, we find that Bittner had a statutory right to have Butler present the facts at issue as he honestly perceived them." [HTML] [PDF]

Charge filed by Daniel Butler, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Poughkeepsie, Jan. 22-23, 1996. Adm. Law Judge James F. Morton issued his decision April 1, 1996.

Francis Building Corp. (29-CA-20480; 327 NLRB No. 89) Middle Island, NY Jan. 29, 1999. The Board agreed with the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by discharging the Charging Party because he filed grievances seeking to enforce a collective-bargaining agreement between the Respondent and the Union, Laborers' Local 1298. [HTML] [PDF]

Charge filed by Diego Matos, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn and New York, NY, May 27 and June 11, 1998. Decision issued by Adm. Law Judge Michael A. Marcionese, Aug. 18, 1998.

Leisure Knoll Assn., Inc. (29-CA-20014; 327 NLRB No. 93) Ridge, NY Jan. 28, 1999. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1), (3), and (5) by threatening to demote or terminate employees for engaging in protected activities, suspending employee Dorothy Whitmer and issuing her a warning for her protected activities, and by bypassing the Union, Teamsters Local 806, and making unilateral changes to terms of employment (failing to pay double for Sundays and holidays) without notice to the Union. [HTML] [PDF]

Charge filed by Richard Musetti and Dorothy Whitmer, individuals; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at New York, NY, Dec. 4-5, 1996 and May 30, 1997. Decision issued by Adm. Law Judge D. Barry Morris, Dec. 3, 1997.

Best Western City View Motor Inn (29-RC-8643; 327 NLRB No. 92) Long Island City, NY Jan. 28, 1999. In this Supplemental Decision, the Board ordered a remand to the Regional Director for institution of subpoena enforcement proceedings pursuant to Section 102.31(d) of the Board's Rules and Regulations with respect to the subpoena of employee Sartaj Khan. In an earlier decision, the Board remanded the proceeding for the Regional Director to determine the nature and sufficiency of whatever evidence the Employer had submitted as proof of service for the Khan subpoena. On remand, the Regional Director determined that an attorney's affidavit of service did not establish that the Employer had served the subpoena on Khan, and that the Employer failed to produce a postal return receipt card for the Khan subpoena. Here, the Board noted that courts and the Board have accepted affidavits of service and similar certifications as sufficient proof of service. Furthermore, the Board noted that Section 102.l13 of the Rules and Regulations provides that service may be proved without submission of the postal return receipt card and that it is immaterial that the Employer has not established that Khan actually received the subpoena. Accordingly, the Board held that, because service of the Khan subpoena was effective when it was mailed, proof that it was mailed is sufficient to prove service. [HTML] [PDF]

Teamsters Local 166 (Shank/Balfour Beatty) (31-CE-212; 327 NLRB No. 84) Bloomington, CA Jan. 26, 1999. The Board ordered the Respondent to cease and desist from entering into, maintaining, reaffirming, giving effect to, invoking, or enforcing any agreement to refrain from using owner operators for the delivery of cement water tunnel-support segments (segments) to any entrance of the Inland Feeder Pipeline Project, rather than to the City Creek Portal entrance only as recommended by the administrative law judge. There are at least two entrances to the Project: the City Creek Portal and the Strawberry Creek Portal. The Respondent did not except to the judge's finding that the Respondent and Shank/Balfour Beatty entered into an unlawful agreement, in violation of Section 8(e), to refrain from using owner-operators to deliver the segments at the Project's City Creek Portal. The General Counsel and the Charging Party excepted the judge's recommended Order, asserting that it was overly narrow because it applies only to deliveries to the City Creek Portal entrance to the site. [HTML] [PDF]

Charge filed by California Dump Truck Owners Association; complaint alleged violation of Section 8(e). Hearing at Los Angeles, May 11-12, 1998. Adm. Law Judge Michael D. Stevenson issued his decision Oct. 1, 1998.

Teamsters Local 435 (Mercury Warehouse and Delivery Service) (27-CB-3004; 327 NLRB No. 87) Denver, CO Jan. 26, 1999. The Board held that the Respondent violated Section 8(b)(1)(A) of the Act by charging Richard P. Fletcher for nonrepresentational expenses after he had given notice that he was filing a Beck objection and by failing, upon receiving his Beck objection, to provide him with information setting forth the Respondent's major expenditures for the previous accounting year and distinguishing between the Respondent's representational and nonrepresentational expenditures; and by failing, since on or about April 15, 1991, to notify newly hired nonmember unit employees whom it sought to obligate under the union-security clause of their rights under Communications Workers v. Beck, 487 U.S. 735 (1988). The case was before the Board for decision pursuant to a stipulation filed by the Charging Party, the Respondent, and the General Counsel. [HTML] [PDF]

In addition to entering a cease-and-desist order, the Board, in accordance with California Saw & Knife Works, 320 NLRB 224 (1995), ordered the Respondent to notify all bargaining unit employees of their rights under Beck and NLRB v. General Motors, 373 U.S. 734 (1963). With respect to those employees whom the Respondent initially sought to obligate to pay dues or fees under the union-security clause on or after April 15, 1991, who with reasonable promptness after receiving their notices, elect nonmember status and make Beck objections with respect to one or more of the accounting periods covered by the complaint, the Board ordered the Respondent, in the compliance stage of the proceeding, to process the objections, nunc pro tunc, as it would otherwise have done, in accordance with the principles of California Saw. The Board further ordered the Respondent to provide Richard Fletcher, as a Beck objector, with the financial information and additional notice of rights required by California Saw. Finally, the Board ordered the Respondent to reimburse Fletcher for the dues collected from him that are not germane to the Respondent's representational activities.

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

Following is the corrected summary of the decision Laidlaw Transit, Inc., which originally appeared in the January 1, 1999 issue (W-2667) of the Weekly Summary:

Laidlaw Transit, Inc. (26-RC-7948; 327 NLRB No. 63) Little Rock, AR Dec. 24, 1998. A Board majority of Members Fox and Brame agreed with the hearing officer's recommendation that election results must be set aside and a new election held because the Board agent improperly allowed an employee who arrived after the polls had closed to cast a ballot without challenge. The tally of ballots was 97 votes for and 97 votes against the Petitioner, Office and Professional Employees, Arkansas Self-Help Local 2001. The majority noted that here, because the employee arrived after the polls closed and there was no agreement by the parties to allow her to vote or extraordinary circumstances, it was the Board agent's obligation to challenge her ballot. They also noted that the vote of the late-arriving employee could have affected the outcome of the election. Dissenting Member Hurtgen would remand the case on the "critical issue" of whether the parties agreed to allow the late-arriving employee to vote. The majority disagreed with the dissent stating that a remand would require "disregarding a reasoned and well-grounded credibility resolution," reversing a hearing officer's ruling "without a showing of prejudicial error," and run contrary to the long-standing policy against Board employees appearing as witnesses at Board proceedings. [HTML] [PDF]

American Federation of Television & Recording Artists, Portland Local (KGW Radio) (36-CB-1491, 1523; 327 NLRB No. 97) Portland, OR Jan. 28, 1999. The Board majority determined that the Respondent Union did not unlawfully fail to provide the Charging Party, a nonmember dues-paying objector, with Beck notice because it was clear that, before the Union sought to obligate him, he knew of his rights, exercised them, and was treated as a nonmember objector by the Union. The Union also was found by the majority to have violated the Act by charging the objector the full initiation fee. In addition, the majority held that the Union violated its duty of fair representation by not providing information sufficient to enable the Charging Party to determine whether to challenge the Union's dues-reduction calculations. On this issue, the majority noted that it was not alleged nor did it find that the proportionate share charged the objecting nonmember was improperly calculated. It stated: "To the contrary, although not verified, the proportionate share assessed the Charging Party may very well be accurate. In any event, although a union must give objectors sufficient information to make a reasoned judgment whether to challenge the dues-reduction calculations, a union need not at the pre-challenge stage, establish that its calculations are justified. That burden is created only if and after the objector files a challenge to the union's figures." The majority required the Respondent to provide to the Charging Party audited information or information supported by a "local presumption" as a remedy, but it did not at this stage require the Respondent to refund any dues withheld based on the unverified expenditure information. The majority continued: "If, based on the information received, the Charging Party determines that the dues charged him were improper, he may contest them in a challenge procedure where, ..., the Respondent bears the burden of proving the expenditures are chargeable to the degree asserted." The "local presumption," enunciated in California Saw, allows a union to utilize a presumption in which no separate allocation of the local union's chargeable/nonchargeable expenditures is performed but instead it is presumed, for accounting purposes, that the percentage of the local's expenditures that is chargeable to objectors is at least as great as the percentage of its parent union's expenditures that is chargeable. [HTML] [PDF]

Dissenting, Member Brame, without endorsing the rationale of California Saw, agreed with Supreme Court and circuit court precedent that mandates that sufficient information be provided to objecting nonmembers so they can decide whether to challenge the amount of dues assessed them. However, he disagreed with the finding that a local union can satisfy its obligation through the use of the "local presumption."

Charge filed by Peter Weissbach, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Portland, Dec. 13, 1990. Decision issued by Adm. Law Judge David G. Heilbrun, Oct. 23, 1991.

Association for Retarded Citizens (Opportunities Unlimited of Niagara) (3-CB-6109; 327 NLRB No. 88) Niagara Falls, NY Jan. 26, 1999. The Board determined on a stipulated record that the Respondent Union violated Section 8(b)(1)(A) of the Act by failing to notify nonmember unit employees of their Beck rights at the time it sought to obligate them to pay fees and dues under the union-security clause, and by threatening nonmember employees with discharge unless they became members of the Union and signed dues-checkoff authorization forms. In light of the Supreme Court's recent Marquez decision, the Board found without merit the complaint allegation that the Respondent maintained an unlawful union-security clause, because the clause at issue tracks the "membership" language of Section 8(a)(3) of the Act. [HTML] [PDF]

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

Greyston Bakery, Inc. (2-CA-29671, et al.; 327 NLRB No. 86) Yonkers, NY Jan. 25, 1999. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) and (3) by discharging Irene Williams, James Edmonson, and Sabrina James because they supported the Union; and violated Section 8(a)(1) by interrogating employees about their union activities, giving the impression of surveillance of union activities, threatening employees with unspecified reprisals and discharge because they supported the Union, and by offering Union-supporting employees tuition assistance to induce them to abandon their employment. The judge found, and the Board agreed, that other alleged violations were not proved. [HTML] [PDF]

Charges filed by Bakery Workers Local 3; complaint alleged violations of Section 8(a)(1) and (3). Hearing at New York, NY, on six days between Sept. 23, 1997 and Jan. 14, 1998. Adm. Law Judge Eleanor MacDonald issued her decision Oct. 2, 1998.

Pekowski Enterprises, Inc. d/b/a the Expo Group (16-CA-18257; 327 NLRB No. 73) Irving, TX Jan. 21, 1999. The administrative law judge found, with Board concurrence, that the Respondent is not an employer engaged in the construction industry, and therefore, could not grant recognition of the Union under Section 8(f) of the Act, rather than Section 9(a). Thus, the judge found that when the Respondent withdrew recognition and refused to bargain with the Union, it violated Section 8(a)(5) and (1). The Board found merit to the General Counsel's exception to the judge's failure to order, in addition to other remedies, that the Respondent make whole unit employees who were hired outside the exclusive hiring hall procedure and not provided the wages and benefits prescribed by the parties' agreement. The judge's Order was modified by the Board to fully remedy the Respondent's failure to apply the terms and conditions of the collective-bargaining agreement to employees working in the bargaining unit. [HTML] [PDF]

Charge filed by Teamsters Local 745; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Fort Worth, TX, Feb. 24-25, 1997. Decision issued by Adm. Law Judge Keltner W. Locke, Sept. 5, 1997.

Electrical Workers (IUE) International and its Local 444 (Paramax Systems Corp.) (29-CB-8055; 327 NLRB No. 79) Great Neck, NY Jan. 13, 1999. The Board modified its prior decision and order (322 NLRB 1 (1996)) to require that the Respondents provide Charging Party Lawrence Ferriso, a Beck objector, with detailed information concerning the breakdown of the major categories of their expenditures and to have that financial information verified by an independent auditor. In the earlier decision, the Board found that the Respondents violated Section 8(b)(1)(A) of the Act by failing to provide Ferriso with the financial information. It also found that a union's duty of fair representation does not extend to requiring that an independent auditor verify the expenditure information provided to objecting nonmembers. On September 23, 1997, the U.S. Court of Appeals for the D.C. Circuit rejected the latter finding, stating that "the Board's rejection of the 'independent auditor' requirement was not rational, because any rational interpretation of the NLRA's duty of fair representation will necessarily include an independent auditor requirement." Ferriso v. NLRB, 125 F.3d 865, 869 (D.C. Cir. 1997). The court instructed the Board to "order that the Unions provide Ferriso with an independent audit of their financial data, and that the independence and qualifications of the auditors conform to prevailing norms for audits of comparable entities." Id. at 873. The Board accepted the court's holding as the law of the case and modified its order accordingly. [HTML] [PDF]