NLRB Decisions - 1999 July-December

Member Brame, dissenting in part, would bifurcate this proceeding, deferring to arbitration on the threshold contractual issue and retaining jurisdiction over the statutory questions for subsequent consideration, if necessary, by the Board.

Charges filed by Graphic Communications District Council No. 2; complaint alleged violation of Section 8(a)(1) and (5). Hearing held March 25, 1998. Adm. Law Judge James M. Kennedy issued his Order Deferring Case to Arbitration on April 10, 1998.

One Stop Immigration and Education Center (21-CA-32068, 32280; 330 NLRB No. 68) Los Angeles, CA Dec. 30, 1999. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(3) of the Act by discharging Gumaro Oviedo-Flores and transferring and discharging Hector Alvarado; and violated Section 8(a)(1) by interrogating employees about their union activities, threatening employees with unspecified reprisals unless they ceased engaging in union activities, and offering to reinstate an employee if the employee stopped engaging in union activities. It modified the judge's recommended Order to provide the usual reinstatement remedy for Oviedo-Flores. The Respondent will have the opportunity to prove in compliance that Oviedo-Flores is not entitled to reinstatement because of alleged misconduct occurring after his unlawful discharge (the issue was not fully litigated at the hearing). [HTML] [PDF]

Charges filed by Electrical Workers IUE District 11; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, July 21-24 and 28-30, 1998. Adm. Law Judge Mary Miller Cracraft issued her decision Feb. 16, 1999.

Plumbers Local 375 (H. C. Price Construction) (19-CB-8032; 330 NLRB No. 55) Fairbanks, AK Dec. 30, 1999. Citing Steamfitters Local 342 (Contra Costa Electric), 329 NLRB No. 65, the Board found, contrary to the administrative law judge, that the Respondent Union did not breach its duty of fair representation or violate Section 8(b)(1)(A) and (2) of the Act by failing, between November 1996 and January 1997, to refer David Vonder Haar to jobs from the Union's exclusive hiring hall. [HTML] [PDF]

The judge found a violation even though he also found that the Union's failure to refer Vonder Haar was not motivated by malice toward him and was not even negligent but rather resulted from Union dispatcher Laiti's mistaken but good-faith belief that Vonder Haar did not want to work during the period in question. Neither the General Counsel nor the Charging Party excepted to these findings.

In Contra Costa Electric, which issued subsequent to the judge's decision, the Board overruled Iron Workers Local 118 (California Erectors), 309 NLRB 808 (1992), and other decisions holding that a union's mere negligence in its failure to dispatch an applicant in the proper order from an exclusive hiring hall violates the duty of fair representation, noting that simple mistakes do not carry the coercive message that hiring hall users had better support the union if they expect to be treated fairly in job referrals.

On other issues, the Board affirmed the judge's finding that the Union at a later date violated Section 8(b)(1)(A) by refusing to permit Vonder Haar to examine hiring hall records. The Union did not except to the judge's finding that in response to Vonder Haar's request, business Manager Wingfield unlawfully threatened to withhold future referrals from Vonder Haar.

Charge filed by David C. Vonder Haar, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Fairbanks, Jan. 27-28, 1998. Adm. Law Judge Clifford H. Anderson issued his decision July 30, 1998.

New Britain Transportation Co. (34-RC-1690; 330 NLRB No. 57) Berlin, CT Dec. 30, 1999. The Board concluded, in agreement with the Regional Director, that the unit petitioned for by Amalgamated Transit Local 1706 limited to school bus, car, and van drivers, and monitors/aides at the Employer's Berlin, Connecticut facility, constitutes an appropriate unit for bargaining. The Employer contended that the unit must also include employees at the Employer's two other facilities located in Southington and Meriden, Connecticut. [HTML] [PDF]

The Board ruled: "In sum, we find that the evidence presented does not establish that the Berlin facility has been so effectively merged into the Southington and/or Meriden facilities, or that the three facilities are so functionally integrated that they have lost their separate identities to the point where the presumptive appropriateness of the petitioned-for Berlin unit has been rebutted, such that the only appropriate unit is one including employees from all locations."

The Employer is engaged in providing public bus transportation for Berlin, and school transportation and related services for Berlin, Southington, and Meriden. Its headquarters are located at its Berlin facility. The Employer employs approximately 172-179 school bus, van, and car drivers and 13 aides at its three facilities. The petitioned-for unit at Berlin is composed of 32-34 drivers, 1 runner, and 2 monitors/aides. There are 70 drivers and about 10 monitors/aides at Southington, and 70-75 drivers and 1 monitor/emergency medical technician at Meriden. The facilities are located in contiguous towns. The Berlin location is about 6 miles from the Meriden facility and about 12 miles from the Southington facility. The Meriden and Southington facilities are about 6 miles apart.

Southern Container, Inc. (3-CA-1430; 330 NLRB No. 58) Camillus, NY Dec. 30, 1999. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to reduce to writing the terms of the side agreement on breaks orally reached with the Union and unilaterally eliminating break periods established by the collectively bargained side agreement. [HTML] [PDF]

Charge filed by Pace, Paper, Allied-Industrial, Chemical and Energy Workers Local 1430; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Syracuse, June 14-15, 1999. Adm. Law Judge Jerry M. Hermele issued his decision Sept. 2, 1999.

Graphic Communications Local 508M (S. Rosenthal & Co.) (9-CD-484; 330 NLRB No. 59) Cincinnati, OH Dec. 30, 1999. Relying on the factors of employer preference and economy and efficiency of operations, the Board decided that employees of S. Rosenthal & Company, represented by Graphic Communications Local 508M, rather than those represented by Teamsters Local 100, are entitled to perform the work of operating the core stripper machines, inserting the butt rolls into the core stripper machines and stripping the waste paper from the cores, at its Cincinnati, Ohio facility. [HTML] [PDF]

Renco Electronics, Inc. (29-RC-8705; 330 NLRB No. 52) Deer Park, NY Dec. 23, 1999. In this Supplemental Decision, Order and Direction of Third Election, the Board overturned the hearing officer's determination that a remark by a Board interpreter to an employee waiting in line to vote ("Do you know where to put your yes vote?") was not destructive of the Board standard of impartiality. The Board concluded that employees who heard the remark could have inferred that the Board favored a "yes" vote and that the election outcome could have been affected given the close vote in the second election (108 for and 100 against Food and Commercial Workers Local 888, with 6 challenged ballots). [HTML] [PDF]

Moran Printing, Inc. (15-CA-13705; 330 NLRB No. 54) Baton Rouge, LA Dec. 30, 1999. In this Supplemental Decision and Order, the Board ordered the Respondent to pay discriminatee Ripley Dixon $9,313.40 (plus interest) in back pay. The Board disagreed with the administrative law judge's finding that Dixon's acceptance of an interim job (driving a delivery car for $7 per hour at Hackforth) violated his obligation to seek substantially equivalent employment (he had been making $9.47 per hour driving a delivery truck for the Respondent before his unlawful layoff) and therefore constituted insufficient mitigation of damages. [HTML] [PDF]

Hearing at New Orleans on Jan. 28, 1999. Adm. Law Judge Howard I. Grossman issued his supplemental decision June 22, 1999.

Harran Transportation, Co. (29-CA-17884; 330 NLRB No. 53) Brooklyn, NY Dec. 30, 1999. In this Supplemental Decision and Order, the Board agreed with the Respondent that the administrative law judge had miscalculated bus driver John Cantidate's gross backpay for five calendar quarters. It ordered the Respondent to pay discriminatee Cantidate, who had been unlawfully discharged, net backpay of $57,117.42 based on gross backpay of $102,991.22. The judge had calculated the gross backpay at $107,417.11. [HTML] [PDF]

Hearing at Brooklyn on April 21 and 22, 1999. Adm. Law Judge Margaret Kern issued her supplemental decision on July 16, 1999.

Advanced Construction Services, Inc. (17-CA-19506; 330 NLRB No. 50) Lenexa, KS Dec. 23, 1999. The Board upheld the administrative law judge's finding that the Respondent (ACS) violated Section 8(a)(1) and (5) of the Act by failing and refusing to provide requested information to the Union, which suspected ACS and Advanced Office Interiors were alter egos. The Board rejected the Respondent's contention that it had no duty to supply to information to Carpenters Local 444 because ACS and the local Union were not signatories to any collective-bargaining agreement, noting: [HTML] [PDF]

"It is undisputed that the Respondent is signatory to two collective-bargaining agreements with the United Brotherhood of Carpenters and Joiners of America, and that these agreements require the Respondent to adhere to the terms and conditions of employment established by 'bona fide local area agreements,' notwithstanding the fact that the Respondent is not signatory to such local area agreements. It is also clear from the record that the Charging Party is party to a local area agreement covering the geographic area in which Advanced Office Interiors, the suspected alter ego of the Respondent, does business. Because, as the judge found, the Charging Party had a reasonable belief supported by objective evidence that the Respondent and Advanced Office Interiors were alter egos, the Respondent was obligated to supply the Charging Party with the requested information that was relevant and necessary for the policing of its local area agreement."

Charges filed by United Brotherhood of Carpenters, Local No. 444; complaint alleged violation of Section 8(a)(1) and (5). Hearing in Overland Park, KS Jan. 27 and 28, 1999. Adm. Law Judge Steven M. Charno issued his decision Feb. 19, 1999.

Dynabil Industries, Inc. (21-CA-32501; 330 NLRB No. 47) El Cajon, CA Dec. 23, 1999. The Board affirmed administrative law judge's finding that the Respondent violated 8(a)(3) and (1) of the Act by discharging employee Roger Varien because of his support for the Union. The judge observed that the Respondent terminated the employee less than three hours after giving him a written warning and without evidence of further wrongdoing. The only intervening event between the warning and the discharge was a meeting of managers to discuss the Union's organizing drive. [HTML] [PDF]

Charges by International Assoc. of Machinists, Lodge 725; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Diego on Nov. 19, 1998. Adm. Law Judge Jay R. Pollack issued his decision Feb. 24, 1999.

Demolition Workers Union Local 95 (29-CB-10362; 330 NLRB No. 49) New York City, NY Dec. 21, 1999. While affirming an administrative law judge's finding that the Respondent Union violated Section 8(b)(3) of Act by failing to execute collective-bargaining agreement and by picketing the Charging Party Mackroyce's jobsite in order to force it to renegotiate contract terms, the Board declined to provide for a make-whole remedy for Mackroyce unit employees. The Board noted that neither the General Counsel nor the Charging Party had requested a make-whole remedy. [HTML] [PDF]

Charges by Mack Royce Dismantling, Ltd.; complaint alleged violation of Section 8(b)(3). Hearing at Brooklyn and New York City on April 21, June 2 and 3, 1998. Adm. Law Judge Margaret M. Kern issued her decision Feb. 17, 1999.

Rental Uniform Service (5-RC-14628; 330 NLRB No. 44) Hanover, PA Dec. 13, 1999. The Board found that the presumptive appropriateness of the single-facility unit of service representatives and route drivers and jumpers employed at the Employer's Hanover, Pennsylvania facility petitioned for by Teamsters Local 430 has not been rebutted and reversed the Regional Director's decision and direction of election in which he found appropriate for collective bargaining a broader multifacility unit of service representatives. The Board remanded the proceeding to the Regional Director for further appropriate action. [HTML] [PDF]

The Employer is engaged in the business of renting uniforms and industrial towels or mats to businesses. Corporate officials located in Virginia set wage policies and many human relations policies and rules. The Employer has 22 processing centers, with one located in Hanover, where it launders and repairs garments, towels, and mats. Once processed, some products are retained at Hanover, and others are delivered by shuttle drivers to two satellite pickup stations, one in York, Pennsylvania, and the other in Frederick, Maryland.

The Board wrote in reversing the Regional Director: "We recognize that the Employer maintains central control of aspects of labor relations, and that there is administrative and operation integration between Hanover and the two 'satellite' facilities, and a similarity of job functions, skill, and pay. Based on these factors, we have little doubt that the combined unit would, if sought, constitute an appropriate unit. We disagree, however, with the Regional Director's finding that those factors are sufficient to overcome the single-facility unit presumption in the circumstances presented."

Menlo Food Corp. (32-CA-16384, 32-RC-4364; 330 NLRB No. 45) East Palo Alto, CA Dec. 14, 1999. The Board affirmed the administrative law judge's decision that the Respondent violated Section 8(a)(1) of the Act and interfered with an election held in Case 32-RC-4364 by interrogating employees about their union activities, threatening employees with unspecified reprisals because of their union activities, soliciting employees to surveil other employees' union activities, and soliciting employees' grievances with the implied promise that those grievances would be remedied without the employees selecting Hotel Employees and Restaurant Employees Local 19 to represent them. Based upon the Respondent's conduct that interfered with employee free choice in the election, the Board sustained Union's Objections 2, 3, 6, and 7, set aside the election held in Case 32-RC-4364, and directed that a second election be held. [HTML] [PDF]

Charge filed by Hotel Employees and Restaurant Employees Local 19; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Oakland and San Quentin in June, July, and August 1998.

Pro Painters, Inc. (5-CA-27491; 330 NLRB No. 46) Virginia Beach, VA Dec. 16, 1999. The Board granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(3) of the Act by refusing to hire job applicants Jan Barr and John St. John because they formed, joined, and/or assisted Painters District 51 and engaged in concerted activities; and violated Section 8(a)(1) by telling job applicants that it does not hire union employees. The Board granted the General Counsel's motion in view of the Respondent's withdrawal of its answer to the complaint pursuant to the parties' settlement agreement disposing of all complaint allegations by providing that the Respondent withdraw its answer. By the terms of the settlement agreement, the Respondent agreed not to oppose the motion for summary judgment. [HTML] [PDF]

Charge filed by Painters District Council 51; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment Oct. 25, 1999.

Courier-Post, a Div. of Gannett Satellite Information Network (4-RC-19471; 330 NLRB No. 39) Cherry Hill, NJ Nov. 30, 1999. Chairman Truesdale and Member Fox certified Teamsters Local 628 as the exclusive bargaining representative of all single-copy merchandisers employed by the Employer at its Cherry Hill facility. They denied in part and granted in part the Union's motion to strike the documents in the appendix of the Employer's brief in support of its exceptions. The motion was denied as to those documents submitted to the Region prior to issuance of the Acting Regional Director's December 23, 1998 report in the context of a closely related unfair labor practice investigation in Case 4-CA-27435. Chairman Truesdale and Member Fox however did not consider the appended documents submitted after issuance of the Acting Regional Director's report, noting that no motion was filed to reopen the record in the representation proceeding. Member Hurtgen, dissenting in part, would not strike the additional documents submitted by the Employer to the Region on December 31. Instead, he would remand the case to the Regional Director to consider them and to determine if a hearing is warranted on the issue of whether the unit consists of a single employee. [HTML] [PDF]

The tally of ballots for the election held on August 26, 1998 shows l for and 0 against the Union, with l challenged ballot, a sufficient number to affect the results of the election. In the absence of exceptions, the Board adopted, pro forma, the Acting Regional Director's recommendation to sustain the challenge to the ballot of Robert Walker.

Fleming Companies (26-RC-7907; 330 NLRB No. 32) Memphis, TN Nov. 30, 1999. Affirming the hearing officer's recommendations, Chairman Truesdale and Member Fox sustained the Union's Objection 2 and the challenges to 2 ballots, overruled the challenges to seven ballots, including leadman Robert Marston's, and remanded the proceeding to the Regional Director to open and count the seven ballots and to issue a revised tally of ballots. If the revised tally shows that Teamsters Local 667 received a majority of the votes cast, the Regional Director shall issue a certification of representative. If the revised tally of ballots shows that the Union has not received a majority of the votes cast, the election shall be set aside and a second election shall be conducted. Member Hurtgen, dissenting in part, would find that leadman Marston is a statutory supervisor and sustain the challenge to his ballot. [HTML] [PDF]

In the absence of exceptions, the Board adopted, pro forma, the hearing officer's recommendations to overrule the Union's Objections 4, 5, 6, and 7 and the Employer's objections in their entirety.

Flamingo Hilton-Laughlin (32-CA-15627; 330 NLRB No. 34) Laughlin, NV Nov. 30, 1999. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by maintaining in its employee handbook: (1) code of conduct and disclosure rules that could be interpreted as limiting its employees' right to discuss wages and working conditions; (2) a rule prohibiting employees from wearing unauthorized pins and decals; (3) a rule prohibiting off-duty employees from engaging in solicitation or distribution in public areas of its facility other than gaming areas; (4) a rule prohibiting making "false, vicious, profane, or malicious statements regarding another employee, guest, patron, or the Hotel itself"; (5) rules prohibiting "using loud, abusive or foul language" and prohibiting "disorderly conduct in the Hotel, including fighting, horseplay, threatening, insulting, abusing, intimidating, coercing or interfering with any guests, patrons, or employees"; and (6) a rule restricting off-duty employees' patronizing of the hotel. [HTML] [PDF]

The Board reversed the judge's findings that the Respondent further violated Section 8(a)(1) by maintaining: a rule prohibiting "off-duty misconduct that materially and adversely affects job performance or tends to bring discredit to the hotel"; and a rule prohibiting "insubordination, derogatory behavior towards management personnel, refusal of job assignments, or harassment of another employee or guest." It agreed with the judge that the Respondent did not violate Section 8(a)(1) by maintaining: (1) a rule prohibiting employees from wearing hotel uniforms off hotel premises without management permission; (2) a policy requiring prior management approval before any employee posts a written notice on the hotel's premises; (3) a rule prohibiting nonemployees from soliciting off-duty employees in certain areas of the hotel open to the public; and (4) a rule prohibiting "failure to have or maintain in management's sole judgment, satisfactory attitude . . . and/or relationships with other guests, employees, including supervisors."

Member Brame, unlike his colleagues, would not affirm the judge's findings that the Respondent violated Section 8(a)(1) by maintaining: the code of conduct and disclosure rules; the rule prohibiting employees from "[m]aking false, vicious, profane, or malicious statements regarding another employee, guest, patron, or the Hotel itself; and the rule that prohibited "[u]sing loud, abusive or foul language" and prohibited "[d]isorderly conduct in the Hotel, including fighting, horseplay, threatening, insulting, abusing, intimidating, coercing or interfering with any guests, patrons, or employees. In joining his colleagues in the remaining violations that they find, Member Brame notes that the violations are "highly theoretical in nature."

Member Liebman found, contrary to her colleagues and the judge, that the Respondent violated Section 8(a)(1) by maintaining a rule prohibiting employees from: Failing] to have or maintain in management's sole judgment, satisfactory attitude . . . and/or relationships with other guests, employees, including supervisors.

Charge filed by Hotel Employees and Restaurant Employees Local 86; complaint alleged violation of Section 8(a)(1). Hearing at Sparks on Dec. 17, 1996. Adm. Law Judge Jay R. Pollack issued his decision Dec. 11, 1997.

Hospital Shared Services (27-CA-14321, et al.; 330 NLRB No. 40) Grand Junction, CO Nov. 30, 1999. Members Fox and Liebman agreed with the administrative law judge that the Respondent committed a single violation of Section 8(a)(3) of the Act and numerous violations of Section 8(a)(1), including such "hallmark violations" as threats of job loss, when it learned of the Union's petition seeking to represent the security officers in the Respondent's employ at St. Mary's Hospital in Grand Junction, Colorado. They declined however to enter the judge's recommended bargaining order and found instead that an election is the most appropriate method for determining the employees' wishes regarding representation in the circumstances here: the threats by Respondent's President Schiel to the effect that the hospital would cancel its contract with the Respondent if the employees selected the union to represent them, while serious and coercive, were not made by any representative of the Hospital-the entity with the power to carry it out; the remarks were not the same as a plant closing threat made by the employer itself to be carried out as an "economic reprisal to be taken solely on [its] own volition," as was the case in NLRB v. Gissel Packing, 395 U.S. 1422, 618-619 (1969); and the other violations found do not rise to the level of "hallmark." [HTML] [PDF]

Member Hurtgen, dissenting in part, would not find that the Respondent violated Section 8(a)(1) with respect to an alleged threat that the contract between the Respondent and its client, St. Mary's Hospital, would be canceled if employees voted for union representation and by impliedly promising to grant benefits to employees if they rejected the Union. He concluded that the judge did not resolve the conflict between Schiel's testimony and the testimony of employee witnesses with respect to the alleged threat of contract cancellation and would remand the issue to the judge to make an explicit credibility resolution. Member Hurtgen also found that the statement about bringing complaints to the attention of the Hospital was not a clear and unambiguous promise to remedy those complaints and that the clear and express disclaimer of any promise clarifies the ambiguity, i.e., it says that no promises are being made.

Charges filed by Guards Region 6 and Ty A. Powell, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Grand Junction on several days from Oct. 8-Nov. 7, 1996. Adm. Law Judge James L. Rose issued his decision Feb. 13, 1997.

Mining Specialists, Inc. and its alter ego or successor Point Mining, Inc. (9-CA-30680; 330 NLRB No. 17) Belle, WV Nov. 26, 1999. The Board granted the General Counsel's motion for partial summary judgment as to the allegations contained in paragraphs 2(c), 4(i), 5(a), 6, and 7, appendixes F and G, page 1 of appendix E, and the gross backpay, bonus and holiday pay, and Pension Trust contributions for the five individuals in the specification appendix C of the compliance specification. The General Counsel's motion was denied as to paragraphs 2(d), 5(c), and 8, and appendixes A, D, and page 2 of appendix E. The proceeding was remanded to the Regional Director to schedule a hearing before an administrative judge concerning factual issues properly raised by the Respondents' answer to the compliance specification. [HTML] [PDF]

The Board had found in 1994 that the Respondents violated Section 8(a)(5) and (1) of the Act by withdrawing recognition of the Union and abrogating the collective-bargaining agreement between the Mine Workers District 17 and Respondent Mining Specialists, Inc. (MSI). It ordered the Respondents to take certain affirmative action including making whole the unit employees by transmitting the contributions owed to the Union's benefit funds pursuant to the contract and to make whole the unit employees for any wages lost as a result of the Respondents' failure to comply with the contractual terms. 314 NLRB 268 (1994). After controversies arose over the amounts due under the terms of the Board's order, the Regional Director issued a compliance specification and notice of hearing.

Metropolitan Edison Co. (4-CA-21398-1; 330 NLRB No. 21) Middletown, PA Nov. 26, 1999. Chairman Truesdale and Member Liebman agreed with the administrative law judge that the Respondent violated Section 8(a)(5) of the Act by refusing the Union's request for the names of two informants who provided information to the Respondent that ultimately led to the discharge of Ned Eppinger for stealing food from the plant cafeteria. The majority agreed with the judge that the informants' identities were relevant and necessary to process Eppinger's grievance; it did not agree with him that a confidentiality claim is not legitimate or substantial when it involves informants about workplace theft rather than drug use or other conduct impacting public or employee safety. However, even assuming that the Respondent asserted a legitimate and substantial confidentiality interest, the majority found that the confidentiality interest was not so substantial as to justify the Respondent's blanket refusal to provide any information in response to the request for informants' names. It found that the Respondent had an obligation to come forward with some offer to accommodate both its concerns and the Union's legitimate need for relevant information. [HTML] [PDF]

Dissenting Member Brame wrote: "By today's ill-considered decision, the majority has upset another settled area of law, forcing employers to guess at required accommodation and to choose between employee safety and accepting leads regarding illegal in-plant activity." Consistent with Pennsylvania Power & Light Co., 301 NLRB 1104 (1991) and Mobil Oil Corp., 303 NLRB 780 (1991), he would find that the Union's request for the informants' names satisfies the test for determining potential relevance, as one reason offered to support the request that Eppinger had been "set up" or "singled out," based upon union activity. But he also found that the Respondent advanced a legitimate and substantial interest in maintaining the confidentiality of the informants' names.

Charges filed by Electrical Workers IBEW System Council U-9, Local 563; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia on July 13, 1994. Adm. Law Judge Bernard Ries issued his decision Jan. 26, 1995.

United Federation of Teachers Welfare Fund (2-CA-28334, et al.; 330 NLRB No. 25) New York, NY Nov. 26, 1999. The administrative law judge found, with Board approval, that the Respondent refused to provide information about vacation scheduling to the Union on April 21, 1998 and delayed in providing the information from April 21 to June 3, 1998 in violation of Section 8(a)(5) and (1) of the Act. The Board affirmed the judge's dismissal of complaint allegations that the Respondent committed other unfair labor practices including unilaterally instituting a new rule and discriminatorily applying it to Local 424 members, refusing to provide information relevant to a grievance, bypassing the Union and dealing directly with an employee and entering into a settlement agreement with her providing that she cannot discuss the terms of the agreement with the Union, and unilaterally instituting an early retirement plan without giving notice to or bargaining with Local 424. [HTML] [PDF]

Charges filed by Industry Workers Local 424 and Regina Tovbin and Daniel Barton, individuals; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at New York, on 11 days between May 4 and June 23, 1998. Adm. Law Judge Eleanor MacDonald issued her decision May 10, 1999.

California Portland Cement Co. d/b/a Catlina Pacific Concrete Co. (21-CA-31978, 32027; 330 NLRB No. 27) Glendora, CA Nov. 26, 1999. Affirming the administrative law judge's decision, the Board held that Section 10(b) of the Act does not bar litigation of the April 1997 charges alleging that the Respondent's 1996 conduct was unlawful and that the Respondent's April 1996 unilateral changes in the terms and conditions of employment of its batch plant operators and its contemporaneous removal of them from the bargaining unit violated Section 8(a)(5) and (1). The Board also affirmed the judge's conclusion that the Respondent violated Section 8(a)(5) when it refused to bargain and withdrew recognition from Operating Engineers Local 12 in April 1997. The Board specifically found that there is a sufficient causal relationship between the Respondent's unfair labor practices and the Union's alleged loss of support. [HTML] [PDF]

Charges filed by Operating Engineers Local 12; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles on Feb. 11, 1998. Adm. Law Judge Michael D. Stevenson issued his decision Aug. 17, 1998.

Granite Construction Co. (28-CA-12629, et al., 28-RC-5256, et al.; 330 NLRB No. 19) Tucson, AZ Nov. 29, 1999. Contrary to the administrative law judge, the Board dismissed the complaint in its entirety which involves the Respondent's relationships with three Unions-Operating Engineers, Teamsters, and Laborers. Each Union represented a construction unit pursuant to Section 8(f) and a nonconstruction unit (rock, sand, and gravel) pursuant to Section 9(a). The Operating Engineers and the Teamsters commenced an economic strike on July 14, 1994. The Laborers honored that strike (beginning July 15, 1994) and then struck on their own on July 18, 1994. The Board concluded that all such activity was in breach of no-strike clause and was unprotected. It further concluded that the Laborers', Teamsters', and Operating Engineers' rock, sand, and gravel units, which were governed by Section 9(a) of the Act, were substantially depleted by the Respondent's discharge of the employees represented by the three Unions for engaging in unprotected conduct and that the Respondent was entitled to withdraw recognition and refuse to bargain. [HTML] [PDF]

Specifically, the Board agreed with the judge that the Respondent did not violate Section 8(a)(3) when it discharged Teamster-represented employees for striking in violation of the no-strike clause, and that the Respondent did not violate Section 8(a)(5) and (1) when it withdrew recognition from and refused to bargain with the Teamsters, Operating Engineers, and Laborers as representatives of the employees in the construction units. Unlike the judge, the Board further found that the Respondent did not violate Section 8(a)(3) and (1) when it discharged Operating Engineers-represented employees who engaged in strike activity on July 14 and did not violate Section 8(a)(5) and (1) when it withdrew recognition from the Operating Engineers, Teamsters, and Laborers in the nonconstruction units. In view of its findings regarding the Operating Engineers' strike, the Board found that the Laborers represented employees were engaged in unprotected strike activity on July 15 and 18. Thus, the discharge of the Laborers-represented employees was lawful.

Consistent with its findings that the striking employees engaged in unprotected conduct, the Board dismissed complaint allegations that the Respondent violated Section 8(a)(1) by threats of discharge if the employees did not abandon the strike and return to work, statements that the unions were out and would never get back in the workplace, and inducements to return to work.

In Case 28-RC-5256 (Teamsters Unit), Case 28-RC-5257 (Operating Engineers Construction Unit), and Case 28-RC-5258 (Laborers' Construction Unit), the Board directed that the Regional Director open and count certain ballots and investigate and determine the eligibility of other voters, if necessary.

Charges filed by Operating Engineers Local 428, et al.; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Phoenix for 25 days from May through Sept. 1995. Adm. Law Judge Clifford H. Anderson issued his decision April 12, 1996.

Pacific Bell (32-CA-16810; 330 NLRB No. 31) San Jose, CA Nov. 30, 1999. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to supply Communications and Telecommunications Local 103 with requested information relevant to bargaining for a successor collective-bargaining agreement and by refusing to engage in collective bargaining with the Union for a new collective-bargaining agreement. Chairman Truesdale and Member Fox also affirmed the judge's recommended Order, including provisions that the Respondent, in addition to the normal posting requirements, mail the Notice to unit employees or transmit it to them by electronic means. They found, in the absence of exceptions, no need to modify the judge's remedy or to address the broad remedial issue discussed in the dissent. Member Hurtgen, dissenting in part, found that neither mailing the notice nor transmitting it to employees by electronic means is warranted as there is no evidence or claim that notice posting is inadequate. [HTML] [PDF]

Charge filed by Telecommunications Local 103; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oakland on Jan. 29, 1999. Adm. Law Judge Clifford H. Anderson issued his decision June 11, 1999.

Circle City Asphalt, LLC (25-CA-26293, et al.; 330 NLRB No. 33) Indianapolis, IN Nov. 30, 1999. Affirming the administrative law judge, the Board held that the Respondent failed to provide Operating Engineers Local 103 with requested information (the names and wage rates of unit employees) and failed to meet and bargain with the Union over the parties' expired March 31, 1999 agreement in violation of Section 8(a)(5) and (1) of the Act; and failed to recall Todd Brackman for the 1990 production season in violation of Section 8(a)(3) and (1). [HTML] [PDF]

Charges filed by Operating Engineers Local 103; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Indianapolis on May 27, 1999. Adm. Law Judge Jerry M. Hermele issued his decision Aug. 11, 1999.

Avondale Industries, Inc. (15-CA-14326, 14327, 15-RC-7767; 330 NLRB No. 35) Avondale, LA Nov. 30, 1999. The Board vacated the certification of representative issued in Case 15-RC-7767 on April 29, 1997 and remanded the case to the Regional Director for further appropriate action. In the unpublished decision and certification of representative, the Board certified New Orleans Metal Trades Department as the exclusive bargaining representative of all production and maintenance employees working at the Respondent's Avondale, Algiers and Westwego, Louisiana locations. On October 22, 1997, the Board granted the General Counsel's motion for summary judgment, and found that the Respondent violated Section 8(a)(5) and (1) of the Act and ordered the Respondent to bargain with the Union. On July 7, 1999, the Fifth Circuit issued a decision vacating the Board's bargaining order and remanding the proceeding to the Board with instructions to set aside the election. 180 F.3d 633 (5th Cir. 1999). [HTML] [PDF]

R & R Plaster & Drywall Co. (6-CA-30309, 30323; 330 NLRB No. 22) Harrisburg, PA Nov. 23, 1999. Members Fox and Liebman denied the Respondent's motion to dismiss the complaint, finding that the Respondent's denials of complaint paragraphs 7, 8, and 9 raise genuine issues of material fact that would best be resolved after an evidentiary hearing before an administrative law judge. Member Hurtgen, dissenting in part, would grant the Respondent's motion with respect to paragraphs 9 and 10 of the complaint alleging that the Respondent violated Section 8(a)(1) of the Act by threatening the arrest of union organizers "for entering property the Respondent does not control." He wrote: "The Respondent denies, and claims that it does control the property. With such control, it clearly has the power to oust the union organizers." [HTML] [PDF]

Citing Indio Grocery Outlet, 323 NLRB 1138 (1997), enforced by the Ninth Circuit, 187 F.3d 1080, the Respondent argued that it did not violate Section 8(a)(1) by threatening to have nonemployee union organizers arrested for trespassing because, under Pennsylvania law, it had a property interest in its jobsites which entitled it to exclude individuals from the property. Relying on Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963), the Respondent contended that Pennsylvania law vests control over the worksite with the subcontractor, not the owner of the property, and that "[t]his control must include the ability to exclude nonemployees from the subcontractor's work area."

Contrary to their dissenting colleague, Members Fox and Liebman found that Hader does not require dismissal of any part of paragraph 9, noting that Hader addresses the issue of the tort liability of a landowner to an employee of an independent contractor whereas paragraph 9 raises an issue of state property law, specifically whether a contractor has a right to exclude individuals from the owner's property.

Even assuming arguendo that their dissenting colleague is correct that, as a matter of Pennsylvania law, if a subcontractor has "possession and control for tort purposes" it likewise has "possession and control for trespass purposes," Members Fox and Liebman found that the Respondent is still not entitled to dismissal of paragraph 9. They noted: Unlike Hader, there is no evidence concerning the nature of the relationship among the property owner, the general contractor, and the Respondent and, thus, no basis on which to conclude that the Respondent was "in possession of the necessary area occupied by the work contemplated under the contract" within the meaning of Hader. And, there is still a factual disagreement between the parties concerning whether the Respondent sought to exclude the union representatives from the jobsite areas over which the Respondent lacked possession and control.

Charges filed by Carpenters Central Pennsylvania Regional Council, Local 287; complaint alleged violation of Section 8(a)(1).

Duffy Tool & Stamping, LLC (25-CA-25841, 25871; 330 NLRB No. 36) Muncie, IN Nov. 30, 1999. Chairman Truesdale and Member Fox found that, in addition to the seven new work rules identified in the administrative law judge's decision, rules A.6 and B.5 were new work rules that the Respondent unlawfully implemented in the absence of a lawful impasse in negotiations in violation of Section 8(a)(5) of the Act. They found no merit in the General Counsel's contention that the 8(a)(5) finding should also include the policy declaring the Respondent's right to search employee property, noting that prior to filing the cross-exceptions, the "General Counsel did not specifically allege that the implementation of the employer investigatory policy, as opposed to rules governing employee conduct, was unlawful, and the issue was not fully litigated." [HTML] [PDF]

Member Hurtgen, concurring in finding the violation, believes there can be circumstances where an impasse on a particular subject can privilege implementation as to that subject. He explained: "When, as here, the parties are bargaining for a contract, and the employer wishes to make a change during the bargaining, there is clearly nothing unlawful about proposing such a change. And, if the parties reach a good-faith impasse as to that matter, I believe that the 'implementation upon impasse' rule should be followed. I would require only that the employer offer a legitimate business interest for implementing upon the specific impasse (rather than waiting for a general impasse)." Here, the Respondent failed to show the requisite business interest, Member Hurtgen found.

Charge filed by Auto Workers International; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Indianapolis, Jan. 25-27, 1999. Adm. Law Judge C. Richard Miserendino issued his decision July 14, 1999.

Super K-Mart and K Mart (32-CA-15575, et al.; 330 NLRB No. 29) Oakland, CA Nov. 30, 1999. Members Hurtgen and Brame reversed the administrative law judge's finding that the Respondent's confidentiality provision, which appears in its employee handbook, violates Section 8(a)(1) of the Act and dismissed the complaint, citing Lafayette Park Hotel, 326 NLRB No. 69 (1998), which issued subsequent to the judge's decision and found that the employer's standard of conduct 17, barring disclosure of "company business and documents," did not violate Section 8(a)(1). The majority held that the Respondent's confidentiality provision, like the rule in Lafayette Park, reasonably is addressed to protecting the Respondent's legitimate interest in confidentiality and does not implicate employee Section 7 rights. Member Liebman, dissenting, agreed with the judge that the Respondent violated Section 8(a)(1) by maintaining an overly broad confidentiality rule in its handbook, relying on the judge's reasoning and on the rationale in the dissenting opinion in Lafayette Park Hotel. [HTML] [PDF]

Company business and documents are confidential. Disclosure of such information is prohibited.

Charges filed by Food and Commercial Workers Local 870; complaint alleged violation of Section 8(a)(1). Hearing at Oakland on Jan. 21, 1997. Adm. Law Judge Gerald A. Wacknov issued his decision April 9, 1997.

Yale University (34-CA-7347; 330 NLRB No. 28) New Haven, CT Nov. 29, 1999. A Board majority of Chairman Truesdale and Member Hurtgen agreed with an administrative law judge's finding that a "grade strike" by about 200 Yale University graduate students was not protected concerted activity under the Act because it was a partial strike and because the strikers had misappropriated university property (withheld papers and test materials). The majority pointed out that a complete strike did not occur because the students ("teaching fellows" who taught their own classes or assisted faculty in teaching classes) continued to perform job-related duties during the grade strike at the end of the fall 1995 semester, such as meeting with students, grading student materials, writing letters of evaluation, and preparing for next term's classes. [HTML] [PDF]

After several years of organizing activity with the goal of establishing a collective- bargaining relationship with Yale, members of the Graduate Employees and Students Organization voted on December 7, 1995 to the tactic of refusing to submit their students' final grades. The striking teaching fellows (TFs) hoped that their action would cause the University to begin negotiations toward a contract.

In a dissenting opinion, Member Liebman would find the grade strike protected activity. She said the TFs planned to complete all work--with the exception of submitting graded material and final grades before beginning a complete strike on January 2, 1998 (the date most grades were due). "[T]he grade strike consisted of TFs withholding the final grades assigned to students enrolled in their courses when the grades were due to the registrar, and that TFs, as a group, did not continue to perform other work after that point. In other words, TFs were not working and striking simultaneously."

A different majority, Members Liebman and Hurtgen (with Chairman Truesdale dissenting), disagreed with the judge's conclusion that the General Counsel failed to make a prima facie showing that a violation of Section 8(a)(1) occurred, and remanded the case to the judge to conduct a hearing. The General Counsel alleged the University directed five specific threats at protected activity that went beyond the grade strike itself. Members Liebman and Hurtgen also directed the judge to decide whether TFs are employees covered by Section 2(3) of the Act. Chairman Truesdale would adopt the judge's finding that the statements were not "overbroad threats."

Charge filed by Graduate Employees and Students Organization (GESO), HERE; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New Haven over 15 days between April 14 and May 29, 1997. Adm. Law Judge Michael O. Miller issued his decision August 6, 1997.

Boston Medical Center (1-RC-20574; 330 NLRB No. 30) Boston, MA Nov. 26, 1999. In a 3-2 decision, the Board found that interns, residents, and fellows employed by Boston Medical Center (BMC)-- "while they may be students learning their chosen medical craft, are also 'employees' within the meaning of Section 2(3) of the Act." The decision overrules Cedars-Sinai Medical Center, 223 NLRB 251 (1976), and St. Clare's Hospital & Health Center, 229 NLRB 1000 (1977). The majority opinion was by Chairman Truesdale and Members Fox and Liebman, Members Hurtgen and Brame issued separate dissenting opinions. [HTML] [PDF]

The Committee of Interns and Residents (CIR) filed a petition with the NLRB's Boston Regional Office on Febraury 13, 1997, in which it claimed to represent 430 interns, residents, and fellows (collectively known as house staff) employed by BMC. On October 17, 1997, the Regional Director dismissed the petition pursuant to the existing case law.

CIR previously represented the interns, residents, and fellows at the former Boston City Hospital, a public hospital not under the Agency's jurisdiction. When Boston City Hospital merged on July 1, 1996 with the former Boston University Hospital to form Boston Medical Center, BMC ultimately recognized the Petitioner as the collective-bargaining agent for all its house staff.

In finding house staff to be statutory employees, the majority noted that although they are less skilled than the staff doctors with whom they train-- they "bear a close analogy to apprentices in the traditional sense." The essential elements of the house staff's relationship with the hospital define an employer-employee relationship, according to the majority:

The majority concluded that interns, residents, and fellows should be considered "physicians" for purposes of its 1989 Health Care Rule defining appropriate bargaining units for acute health care facilities. Accordingly, it directed an election of all physicians, including interns, residents, and fellows.

In his dissent, Member Hurtgen indicated that while it may be "permissible" for the Board to treat house staff as employees under the Act, it is not compelled to do so. He said the Board was making a "policy choice" with which he disagreed. Among other factors, he noted the Board's holding now will give house staff the right to strike. Member Hurtgen would rely, instead, on the rationale of Cedars-Sinai and St. Clare's Hospital and leave the situation as it had been for more than 20 years.

In a separate dissent, Member Brame, indicating that the majority's decision places the U.S. system of medical education in "jeopardy," stated that he would find the house staff to be students, not employees, and would dismiss the petition on that basis. His detailed analysis of the case rejects the majority's analysis of both existing precedent and legislative history. Member Brame contended the Act was not designed or intended to apply to academic relationships like that between residents and teaching hospitals, adding:

"I fear that my colleagues' reversal of longstanding precedent holding that residents are not employees entitled to engage in collective bargaining will be viewed by the courts as another example of overreaching by this Agency."

Bro-Tech Corp. t/a Purolite (4-CA-23458; 330 NLRB No. 7) Philadelphia, PA Nov. 18, 1999. On remand from the Third Circuit, the Board held that the Union's election day broadcasts of pro-Teamsters songs from a sound truck parked across the street from the Employer's facility, violate the standards set forth in Peerless Plywood Co., 107 NLRB 427 (1953), prohibiting campaign speeches to a massed assembly of employees within 24 hours of an election. The Board set aside the election held in Case 4-RC-17846 on July 17, 1992 and remanded the proceeding to the Regional Director to conduct a new election. It vacated the 1995 Decision and Order (317 NLRB No. 20) finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Teamsters Local 10, and the 1994 Supplemental Decision and Certification of Representative (315 NLRB 1014) overruling the Employer's Objection 4(a) which alleged that the Union's sound truck broadcast violated the Board's prohibition of campaign speeches set forth in Peerless Plywood. The Board wrote: [HTML] [PDF]

"Thus, contrary to the reasoning in the Board's original representation case decision (and in deference to the court's remand), we find that the partisan content of the songs is sufficient to place it within the realm of campaign speech under Peerless Plywood. Whether in the form of lyrics to a pro-Teamsters song, a nonmusical partisan oration, or a dry recitation encouraging support for a particular electoral choice, we find that they all fall within the broad rubric of campaign speech within the proscription of Peerless Plywood."

Petrochem Insulation, Inc. (20-CA-24071; 330 NLRB No. 10) Vallejo, CA Nov. 19, 1999. The Board granted the General Counsel's motion for summary judgment, denied the Respondent's cross-motion for summary judgment, and held that the Respondent violated Section 8(a)(1) of the Act by filing and maintaining a civil lawsuit against the Charging Party Unions (the Plumbers and various of its affiliated locals) in Federal district court to enjoin them from engaging in protected concerted activity and to recover damages from them. Based on the Respondent's admission of relevant allegations in the complaints, as well as other factual admissions made in its briefs, the Board found that there were no material issues of fact warranting a hearing and that as a matter of law the Respondent violated Section 8(a)(1), as alleged. [HTML] [PDF]

Charges filed by Plumbers and various of its affiliated locals and Thomas J. Hunter, an individual; complaint alleged violation of Section 8(a)(1). General Counsel filed motion for summary judgment Oct. 9, 1996.

Ebroadburl Realty Corp. t/a Power Equipment Co. (4-CA-26249; 330 NLRB No. 20) Hainesport, NJ Nov. 22, 1999. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Jonathan Smith because he supported and assisted Electrical Workers IBEW Local 269, the Board held in agreement with the administrative law judge. [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 269; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia on May 18, 1999. Adm. Law Judge Earl E. Shamwell Jr. issued his decision Oct. 16, 1998.

TNT Technologies Ltd., d/b/a Ambrose Electric (3-CA-20165-1; 330 NLRB No. 23) Latham, NY Nov. 22, 1999. The Board held, contrary to the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by attempting to exclude union representatives from jobsites to which the Respondent lacked the right to control access, during nonworking time and on portions of such jobsites where the representatives would not pose a threat to safety or interfere with the Respondent's equipment or with its employees in the performance of their job duties. However, the Board agreed with the judge that the General Counsel failed to prove that animus against five applicants' union affiliation was a motivating factor in the Respondent's failure to hire or to consider them, and it affirmed his dismissal of the allegation that the Respondent violated Section 8(a)(3) by failing to hire, or to consider for hire, the five Union members. [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 724; complaint alleged violation of Section 8(a)(1). Hearing at Albany on May 12, 1997. Adm. Law Judge Michael A. Marcionese issued his decision July 18, 1997.

USF Red Star, Inc., a U.S. Freightways Co. and Teamsters Local 118 (3-CA-19698, 19739, 3-CB-6734, 6894; 330 NLRB No. 15) Rochester, NY Nov. 22, 1999. Chairman Truesdale and Member Fox agreed with the administrative law judge that the Union violated Section 8(b)(1)(A) and (2) of the Act by its "efficacious demand" that Red Star discharge John Hayes from his job as a casual truckdriver because of his internal union activities, that Red Star violated Section 8(a)(3) and (1) by discharging Hayes pursuant to the Union's request, and violated Section 8(a)(1) by discharging Wayne Zakofsky, its Rochester, New York terminal manager, for refusing to follow orders by his superiors that he discharge Hayes in violation of the Act. [HTML] [PDF]

Member Brame, dissenting, would find that the Respondent lawfully terminated Hayes who had a preventable accident, pursuant to its well-established company rule that requires the discharge of any casual driver causing such an accident. As he would dismiss that allegation, Member Brame disagreed with the additional violations found by the judge and the majority because they are dependent on whether the Respondent unlawfully discharged Hayes.

The Board had in 1997 remanded the proceeding to the judge for findings of fact, including certain credibility resolutions, and conclusions of law to determine whether, based on the Board's Wright Line test, Hayes and Zakofsky's discharges were unlawful as alleged in the complaint.

Center State Beef and Veal Co. (3-CA-21521, et al.; 330 NLRB No. 14) Cortland, NY Nov. 18, 1999. Absent good cause being shown for the Respondent's failure to file an answer, the Board granted the General Counsel's motion for summary judgment, found that a bargaining order under the Gissel category II standards is necessary to remedy the Respondent's unfair labor practices, deemed the allegations in the compliance specification to be admitted as true, concluded that the net backpay due the discriminatees is as stated in the compliance specification, and ordered the Respondent to pay the amounts. [HTML] [PDF]

In an earlier decision, the Board granted the General Counsel's motion for summary judgment and found that the Respondent committed numerous violations of Section 8(a)(1) and violated Section 8(a)(3) and (1) by discharging or permanently laying off four employees because of their union and other protected activities. It denied the General Counsel's motion insofar as it alleged that a Gissel bargaining order was appropriate, and that the Respondent therefore violated Section 8(a)(5) and (1) by failing to recognize and bargain with Teamsters Local 317 over the effects on employees of its decision to close its Cortland, New York facility. The Board remanded the case for a hearing before an administrative law judge on the 8(a)(5) allegations. 327 NLRB No. 209. Subsequently, the General Counsel issued an amendment to the second amended consolidated complaint and compliance specification and notice of hearing. The Respondent failed to file an answer.

In this supplemental decision, the Board found that the allegations in the April 1999 amendment to the complaint, which the Respondent has admitted, set forth sufficient facts to assess the propriety of a Gissel bargaining order without the need for hearing. Further, it held that the Respondent had a bargaining obligation since September 17, 1998 and violated Section 8(a)(5) and (1) by closing its Cortland facility and terminating all of the unit employees on about December 18 without prior notice to and without giving the Union an opportunity to bargain over the effects of the closing on the employees. The Board included a limited backpay requirement related to the closing with the bargaining order.

Pickett Industries, Inc. (15-CA-13903, 13048; 330 NLRB No. 24) Shreveport, LA Nov. 23, 1999. The Board, adopting an administrative law judge's bench decision, found the Respondent violated Section 8(a)(1) of the Act by threatening its employees with termination in February 1996, a few weeks after the Union won an election, because they had aided the Union. [HTML] [PDF]

Charges filed by the Paperworkers International; complaint alleged violation of Section 8(a)(1). Hearing at Vidalia, June 3-4, 1998. Adm. Law Judge Keltner W. Locke issued his decision July 10, 1998.

Erman Corp. (17-RD-1558; 330 NLRB No. 26) Kansas City, KS Nov. 24, 1999. In a Decision and Direction, a Board majority of Chairman Truesdale and Member Fox agreed with the hearing officer that 16 former unreplaced economic strikers were eligible voters in a June 15, 1999 election in which there were 0 ballots for the Union, 5 against the Union, with the 16 ballots of the strikers challenged by the Employer. The majority determined the strikers were not barred from voting under Section 9(c)(3) of the Act, although the election was held more than 12 months after the strike began, citing Gulf States Paper Corp., 219 NLRB 806 (1975). It also rejected the Employer's argument that the strikers lost their eligibility to vote because their jobs were eliminated as a result of changed methods. [HTML] [PDF]

In a dissenting opinion, Member Hurtgen would have sustained the Employer's challenges to the 16 striker ballots and certified the results of the election. He agreed with the Employer that Lamb-Grays Harbor Co., 295 NLRB 355 (1989), supports the proposition that economic strikers, like other employees, lose their eligibility to vote if the employer eliminates their jobs for economic reasons.

Crowley Marine Services, Inc. (32-CA-16596; 329 NLRB No. 92) Oakland, CA Nov. 10, 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 the Union (Inlandboatmen of the Pacific, ILWU) with requested relevant and necessary information (a copy of an arbitration award between the Respondent and the Seafarers International (SIU) awarding the crewing of a newly purchased oil tanker to the SIU)). The judge found that the Union demonstrated that it had a reasonable and objective belief that the Respondent, in awarding the crewing of the new oil tanker to the SIU, had diverted bargaining unit work to an affiliate in violation of the parties' collective-bargaining agreement. [HTML] [PDF]

Charge filed by Inlandboatmen of the Pacific, ILWU; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oakland on Feb. 9, 1999. Adm. Law Judge Joan Wieder issued her decision April 29, 1999.

Rondout Electric, Inc. (3-CA-18643, et al.; 329 NLRB No. 87) Poughkeepsie, NY Nov. 8, 1999. The Board affirmed the administrative law judge's dismissal of the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Chris Gallo because of his activities for Electrical Workers IBEW Local 363; and violated Section 8(a)(1) by interrogating individuals during prehire interviews about their union affiliation, refusing to hire 11 named applicants because of their union affiliation, and filing state court criminal trespass charges against union organizers John Sager and Stephen Rockafellow. The Board set forth other reasons, in addition to those stated by the judge, for finding that the General Counsel failed to show that the Respondent's preferential hiring of certain individuals over the 11 applicants was discriminatory; and it set forth a different analysis in agreeing with the judge that the Respondent's charges against Sager and Rockafellow did not violate the Act. [HTML] [PDF]

Charges filed by Electrical Workers IBEW Local 363; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Poughkeepsie, April 29-30 and May 1-2, 1996. Adm. Law Judge Howard Edelman issued his decision Dec. 5, 1996.

Ryder Integrated Logistics, Inc. (7-CA-39781; 329 NLRB No. 89) Canton, MI Nov. 12, 1999. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by threatening employees with the closure of its warehouse facilities if they designated the Auto Workers (UAW) as their bargaining agent; and violated Section 8(a)(1) and (2) by threatening closure of its facility and loss of jobs for warehouse employees if they refused to sign membership applications for Service Employees District 2A (Party in Interest). [HTML] [PDF]

The Board agreed with the judge's findings that the disputed warehouse employees employed at the Respondent's Redford, and then Canton, Michigan Logistics Optimization Center were not accreted into the existing unit of the Respondent's drivers servicing the GM Detroit/Hamtramck, Michigan plant, and that the Respondent violated Section 8(a)(2) and (1) by its February 28, 1997 recognition of the Party in Interest as the representative of the nonaccreted employees. It also agreed with the General Counsel, as stated in his cross-exceptions, that this violation taints any subsequent showing of majority status by the Party in Interest. The Board found it unnecessary to pass on whether the Party in Interest's purported subsequent majority status was the result of misrepresentations made during its solicitation of employee membership applications.

Charge filed by Auto Workers (UAW); complaint alleged violation of Section 8(a)(1) and (2). Hearing at Detroit, Dec. 3-5, 1997. Adm. Law Judge Thomas R. Wilks issued his decision May 6, 1998.

United States Postal Service (16-CA-18520(P); 330 NLRB No. 3) Port Neeches, TX Nov. 12, 1999. Chairman Truesdale and Member Hurtgen affirmed the administrative law judge's dismissal of the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire Sharon Jacqueline Lee, a former employee, because she filed a grievance against the Respondent during her initial employment. The majority agreed with the judge that the General Counsel failed to prove the allegation. Applying a Wright Line analysis, it affirmed the judge's finding that the grievance filing was not a motivating factor in the Respondent's decision not to choose Lee from the five candidates for two letter carrier positions. Further, the majority agreed with the judge's alternative finding that, even assuming that Lee's grievance filing was a motivating factor in the decision not to hire her, the Respondent proved that it would not have hired Lee because of her prior poor work performance. [HTML] [PDF]

Member Fox, dissenting, would not affirm the judge's dismissal of the complaint and would remand for requisite credibility findings. She concluded that the judge failed to make credibility findings crucial to two dispositive issues: (1) whether the General Counsel established a prima facie case, i.e., showed that animus against Charging Party Lee's grievance filing was a motivating factor in the Respondent's failure, in 1997, to hire her into a transitional employee position; and (2) whether the Respondent established that it would not have hired her into the position even in the absence of her protected grievance filing.

Charge filed by Sharon Jacqueline Lee; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Port Arthur on Jan. 27, 1998. Adm. Law Judge Jerry M. Hermele issued his decision April 10, 1998.

Dynatron/Bondo Corp. (10-CA-30523; 330 NLRB No. 5) Atlanta, GA Nov. 16, 1999. The Board dismissed complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by disciplining and discharging Raleigh Bell, and other employees similarly situated, pursuant to its unlawfully implemented "late arrival to work station" rule. [HTML] [PDF]

The Board had found in 1997 that the Respondent violated Section 8(a)(5) by unilaterally implementing the "late arrival to work station" rule and by discharging employee Lamar Shelton pursuant to the rule. 324 NLRB 572. See also Dynatron/Bondo Corp., 323 NLRB 1236 (1997), in which the Board found that the Respondent violated Section 8(a)(5) by unilaterally changing its employees' terms and conditions of employment. The two cases are collectively referred to as Dynatron/Bondo I. On March 6, 1998, the Regional Director issued the instant complaint relying on the Board's 1997 decision. On May 25, 1999, the U.S. Court of Appeals for the Eleventh Circuit issued its decision in Dynatron/Bondo I enforcing the majority of the Board's unfair labor practice findings. 176 F.3d 1310. The court, however, reversed the Board's conclusions that the Respondent unlawfully implemented the "late arrival to work station" rule and that Shelton was unlawfully discharged. The court found that the underlying complaint allegations were time-barred by Section 10(b) of the Act.

In this decision, the Board noted that the court's opinion foreclosed finding that the Respondent's "late arrival to work station" rule was unlawfully implemented and that there was no other basis for concluding that the Respondent violated the Act by disciplining and discharging Raleigh Bell, and other employees similarly situated, pursuant to the rule.

Less Express Courier Systems (2-CA-31600; 330 NLRB No. 6) New York, NY Nov. 17, 1999. The Board upheld the administrative law judge's findings that the Respondent interrogated an employee in violation of Section 8(a)(1) of the Act and discharged Kevin Walker because of his activities for Industrial Service, Transport and Health Employees District 6 in violation of Section 8(a)(3) and (1). [HTML] [PDF]

Charge filed by Industrial Service, Transport and Health Employees District 6; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York on June 3, 1999. Adm. Law Judge Margaret M. Kern issued her decision Aug. 18, 1999.

Graphic Communications Local 735-S (Quebecor Printing Hazleton) (4-CB-7981; 330 NLRB No. 1) Hazleton, PA Nov. 17, 1999. The administrative law judge found, and the Board agreed, that Charging Party Patrick Quick resigned union membership by his March 1997 letter to the Union and that the Respondent violated Section 8(b)(1)(A) of the Act by accepting and retaining dues deducted from Quick's wages in the absence of a lawful union-security clause that requires the payment of such dues and after Quick resigned union membership, threatening to take legal action against Quick if he did not pay dues to Respondent, and filing and maintaining a lawsuit against Quick because he did not pay dues. The Board found that the judge correctly recommended that the Respondent reimburse Quick only for the personal expenses he actually incurred in defending against the lawsuit filed by the Respondent, contrary to the Charging Party's exceptions. [HTML] [PDF]

Charge filed by Patrick Quick, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Philadelphia on July 21, 1998. Adm. Law Judge William G. Kocol issued his decision Sept. 14, 1998.

Standard Commercial Cartage, Inc., and its Successor and Alter Ego Standard Environmental Systems Corp. (29-CA-20844; 330 NLRB No. 12) Smithtown, NY Nov. 12, 1999. The Board affirmed the administrative law judge's findings that Respondent Standard Environmental Systems Corp. is the alter ego of Respondent Standard Commercial Cartage, Inc.; and that the Respondents violated Section 8(a)(5) and (1) of the Act by refusing to recognize Teamsters Local 813 and refusing to apply the terms of the Union's collective-bargaining agreement with Standard Commercial Cartage to their unit employees. [HTML] [PDF]

Charge filed by Teamsters Local 813; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on July 20, 1998. Adm. Law Judge Eleanor MacDonald issued her decision Jan. 19, 1999.

Cross Island Telephone Services (29-CA-22290, 22351; 330 NLRB No. 2) Islip, NY Nov. 17, 1999. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to execute the initial collective-bargaining agreement that it had previously agreed to with Communications Workers Local 1105, and by unilaterally modifying the contractual terms by recalling laid-off employees out of seniority. The Board modified the judge's recommended remedy to provide that the Respondent shall apply the terms of its collective-bargaining agreement retroactive to April 23, 1998, noting that the normal remedy for violations like those found here is limited to the 10(b) period, in this case 6 months prior to the filing of the charge on October 23, 1998. See Al Bryant, Inc., 260 NLRB 128 fn. 3 (1982). [HTML] [PDF]

Charges filed by Communications Workers Local 1105; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on May 20, 1999. Adm. Law Judge Joel P. Biblowitz issued his decision July 8, 1999.

Baltimore Gas & Electric Co. (5-RC-14351; 330 NLRB No. 9) Baltimore, MD Nov. 9, 1999. Members Fox and Liebman denied the Employer's request for review of the Regional Director's Order approving Electrical Workers IBEW Local 1900's withdrawal of the petition as it raised no substantial issues warranting review, and denied the Employer's motion to dismiss, or in the alternative to stay, Cases 5-RC-14906, 14907, 14908, and 14909. Member Hurtgen, dissenting, would not permit the Union to "abort the election process after two elections have been held." [HTML] [PDF]

The first election was held in December 1996. It was set aside by agreement of the parties. The second election was held on October 14-15, 1998. The results were 1178 for, and 1298 against, the Union, with 726 challenged ballots. The Employer and the Union filed objections. The challenges and the Union's objections are pending. On October 14, 1999, the Union requested withdrawal of the petition. At the same time, it filed four separate petitions seeking elections in varying units of the Employer's operations.

Members Fox and Liebman held that Section 11116.3 of the Board's Casehandling Manual, cited by their dissenting colleague, "squarely grants the Regional Director the discretion to approve the Petitioner's withdrawal request, since a new election would not be held within 12 months of the previous, October 1998 election." They found "misplaced" Member Hurtgen's attempt to analogize this case to an employer's effort to withdraw its RM petition where the union has won the election and the employer has filed objections.

Members Fox and Liebman noted that if they were to refuse to allow withdrawal of the petition, a hearing must be held and determinations made as to the eligibility of more than 700 challenged voters and the merits of the Union's 17 objections. They wrote: "Rulings on these matters at the regional level may be appealed to the Board and, if the Board proceedings result in certification of the Union, may ultimately be reviewed by a circuit court of appeals. To require the parties and the Board to expend the resources necessary to complete that process in order to reach a result which, at best from the Employer's point of view, would be the same as that which obtains as a result of the union's withdrawal of its petition would, in our view be the height of bureaucratic folly."

Dissenting Member Hurtgen noted that reading the first and second sentences of Section 11116.3 in tandem, "it is clear that the Regional Director lacks the discretion to approve a withdrawal request if neither of the two conditions is present." He added: "The Regional Director has discretion to approve the request if either of the conditions is present. However, that discretion must take into account the first sentence and the strong policy considerations behind it. Phrased differently, there must be a strong showing as to why the preferred policy is not being followed. There is no such showing here." Member Hurtgen conceded that a denial of the withdrawal request would mean that there is additional work to be done; the challenges and objections must be resolved. But, he said the Board should not shrink from its statutory obligation "simply because one party wants it to do so." He believes that his colleagues have "missed the essential similiarity" in RM and RC cases, noting that in both cases, the "critical point is that we should allow the employees' secret-ballot choice to be effectuated."

Freund Baking Co. (32-CA-16293, 32-RC-4221; 330 NLRB No. 13) Hayward, CA Nov. 16, 1999. Chairman Truesdale and Member Fox vacated the decision and order in Case 32-CA-16293 (324 NLRB No. 175), reopened Case 32-RC-4221, set aside the election held on January 30, 1997, revoked the certification of representative, and remanded the case to the Regional Director to conduct a second election. Member Hurtgen dissented. [HTML] [PDF]

In the earlier decision in Case 32-CA-16293, the Board granted the General Counsel's motion for summary judgment, found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Bakery Workers Local 119 following its certification as exclusive representative, and issued cease-and-desist and bargaining orders. The Respondent petitioned the D.C. Circuit for review of the Board's Order and the Board filed a cross application. On January 22, 1999, the court granted the Respondent's petition for review and denied enforcement of the Board's Order. 165 F.3d 928. The court found that the Union impermissibly interfered with the underlying representation election by filing, at its own expense and during the critical period, a class action lawsuit seeking overtime and breaktime pay allegedly due unit employees. The court concluded that the Board erred in not setting aside the election.

Chairman Truesdale and Member Fox in this supplemental decision found no merit to the Respondent's contention that, in the absence of a remand, the Board no longer has jurisdiction over the representation case. They explained: "Sec. 9(d) of the Act does not give the court general authority over the representation proceeding, but authorizes review of the Board's actions in the representation proceeding for the limited purpose of deciding whether to 'enforc[e], modify[ ] or set[ ] aside in whole or in part the [unfair labor practice] order of the Board.' The Board retains authority under Sec. 9(c) of the Act to resume processing the representation case in a manner consistent with the rulings of the court." Chairman Truesdale and Member Fox pointed out that the Board informed the court in its brief in Case 32-CA-16293 that it retained jurisdiction over Case 32-RC-4221 to resume processing it in a manner consistent with the ruling of the court; the direction of a second election is consistent with the court's decision. Thus, in the absence of a statement to the contrary from the court, they saw no reason to delay processing of the representation case by "once again advising the court of the Board's intention." The Respondent's contention that a second election is inappropriate since the showing of interest is stale was also rejected.

Member Hurtgen would return to the court and advise it of the Board's intention to resume processing of Case 32-RC-4221 and, thus, avoid "any misunderstanding" as to whether the court would agree that it never had jurisdiction over Case 32-RC-4221. See NLRB v. Lundy Packing Co., 81 F.3d 25 (1996).

Avondale Industries (15-CA-12171-1, et al.; 329 NLRB No. 93) New Orleans, LA Nov. 10, 1999. A Board majority (Chairman Truesdale and Member Fox) affirmed an administrative law judge's findings of numerous unfair labor practices by the Respondent and concluded a broad cease-and-desist order was warranted enjoining it from violating the Act in any other manner, citing Hickmott Foods, 242 NLRB 1357 (1979). While the Board adopted the judge's recommendation that the Respondent comply with special mailing and published notice remedies, it disagreed that the company's president (or vice president) should personally be required to sign the written notice and read the notice to employees (or permit it to be read by a Board agent in his presence). The Board noted that there was no finding that the company president directly committed any unfair labor practice in this case. [HTML] [PDF]

The judge issued a 426-page decision on February 26, 1998, finding the Respondent had violated Section 8(a)(1) on 73 different occasions from March 1993 through June 1994. He further found 68 violations of Section 8(a)(3) (discriminatory discharges, suspensions, warning notices, assignment of more onerous work, denial of benefits, and a refusal to hire).

In a dissenting opinion, Member Hurtgen said he would "dismiss on 10(b) grounds any 8(a)(1) allegation that is not 'closely related' to a timely filed charge under the test set forth in Redd-I." He also disagreed that there has been a showing of need for special access remedies.

Charges filed by New Orleans Metal Trades Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New Orleans, 165 dates from July 11, 1994, through July 15, 1996. Adm. Law Judge David L. Evans issued his decision Feb. 26, 1998.

California Pie Co. (32-CA-16411, 16435; 329 NLRB No. 88) Livermore, CA Nov. 8, 1999. The administrative law judge found that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by: refusing to discuss Manuel Zuniga's grievance and Nelly Benitez' warning with Bakery Workers Local 125, refusing to provide the Union with requested information concerning the warning, unilaterally adopting a requirement limiting Zuniga's after-shift access to its lunchroom, insisting to impasse on an unlawful "most favored nations" (MFN) proposal, issuing a written warning to Ricardo Pena, coercively interrogating Pena, and limiting Zuniga's after-shift access to its lunchroom. No exceptions were filed to these findings. The Board found no merit to the Union's exception to the remedy recommended by the judge for his finding that the Respondent insisted to impasse on an unlawful "most favored nations" proposal, i.e., that the Respondent withdraw the MFN proposal and return to negotiations in an effort to reconcile the parties' remaining differences. [HTML] [PDF]

Charge filed by Bakery Workers Local 125; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Oakland on May 18, 1998. Adm. Law Judge William L. Schmidt issued his decision June 30, 1999.

Beverly California Corp. (6-CA-20188-28, et al.; 329 NLRB No. 90) Meyersdale, PA Nov. 10, 1999. Affirming the administrative law judge's supplemental decision, the Board ordered the Respondent to pay Debra Wiley the sum of $29,203 and Janet Glen the sum of $19,169. In a decision reported at 310 NLRB 222, the Board found that the Respondent had committed over 130 violations of Sections 8(a)(1), (3), and )(5) of the Act at 33 nursing home facilities throughout the U.S. It ordered the Respondent to make whole Wiley, Glen, and 13 other employees for any loss of earnings they suffered as a result of the Respondent's unlawful conduct. The parties have resolved the backpay issues with respect to the 13 individuals. On February 28, 1994, the U.S. Court of Appeals for the Second Circuit enforced the Board's order in pertinent part, but declined to enforce the extraordinary, corporatewide order. Thereafter, the Court directed the Board to prepare a supplemental decision setting forth a series of cease-and-desist orders and other affirmative relief to remedy the violations found at the individual facilities. The Board issued a decision on remand in 1995, ordering the Respondent to take certain affirmative action. On August 23, 1996, the Court issued a supplemental judgment enforcing in full the Board's remedial order provisions. [HTML] [PDF]

Supplemental hearing at Pittsburgh on Jan. 13, 1997 and in Indianapolis on April 28, 1997. Adm. Law Judge Margaret M. Kern issued her decision Feb. 24, 1998.

Overnite Transportation Co. (18-CA-13481, et al.; 329 NLRB No. 91) Richmond, VA Nov. 10, 1999. Agreeing with an administrative law judge, the Board found the Respondent had committed numerous "hallmark" unfair labor practices in the course of an organizing campaign by the Union that warranted the issuance of a Gissel bargaining order at four service facilities notwithstanding election losses. "[T]he Respondent's course of misconduct, both before and after the elections, clearly demonstrates that the holding of fair elections in the future would be unlikely," the Board concluded. Employees' wishes would be better gauged by old card majorities than by new elections, it stated, citing Charlotte Amphitheater Corp. v. NLRB, 82 F. 3d 1074 (D.C. Cir. 1996). [HTML] [PDF]

All bargaining unit employees were directly affected by the Respondent's misconduct, the Board pointed out. "On a nationwide basis, the Respondent orchestrated a highly coercive 'carrot and stick' campaign." For example, in March 1995, at the height of the organizational effort, the Respondent unlawfully granted its unrepresented employees an unprecedented second wage hike two months after its traditional annual increase.

Other "serious and pervasive" violations committed at each terminal included threats that employees would lose their jobs and that the business would be closed if they selected the Union; asserting to employees that it would be futile to select the Union as their representative; promising employees better benefits, including better uniforms, overtime policies and vacations, and participation in employee committees to determine how benefits dollars would be spent if employees voted to keep out the Union; threatening employees with stricter discipline and adherence to work rules and more onerous working conditions if the employees voted in the Union; threatening employees with loss of pension benefits; threatening employees that their relationship with supervisors would deteriorate if the Union won; inviting employees to quit working for the Respondent if they wanted to have a job with a 'union company'; discriminatorily denying employees access to company bulletin boards to post prounion information; soliciting and promising to remedy employee grievances through supervisors, managers, and troubleshooters, and failing to observe the Johnnie's Poultry safeguards when the Respondent's attorneys interviewed employees in connection with this case.

Member Liebman, in a separate statement, denied the Respondent's recusal motion. She said her prior employment as a Teamsters attorney (1980-1989) would not impede her ability to decide this case fairly on its merits.

Charges filed by Teamsters International and its affiliated locals; complaint alleged violation of Section 8(a)(1), (3), and (5). Adm. Law Judge Benjamin Schlesinger issued his decision on April 10, 1998.

Ansul Inc. (30-CA-13991; 329 NLRB No. 84) Marinette, WI Oct. 29, 1999. Members Fox and Liebman, with Member Hurtgen dissenting, affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by demoting union supporter Jean Dausey and reducing her wages because of her outspoken support of the Auto Workers. Citing Uarco, Inc., 169 NLRB 1153, 1154 (1968), the Board found, contrary to the judge, that the Respondent did not violate Section 8(a)(1) by telling its employees (eight days before a scheduled Board-conducted election) that it had completed a job evaluation and decided to postpone an announcement of the results until after the election results were finalized. Member Hurtgen would dismiss the complaint in its entirety. [HTML] [PDF]

Charge filed by Auto Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Green Bay, Feb. 1-2, 1999. Adm. Law Judge Leonard M. Wagman issued his decision May 27, 1999.

Forrest City Machine Works (26-CA-17735; 329 NLRB No. 85) Forrest City, AR Oct. 29, 1999. The Board affirmed the administrative law judge's supplemental decision that the Respondent violated Section 8(a)(1) of the Act by refusing to permit employee Aaron Williams to rescind both his and employee Robert Field's resignations because it felt that their conduct might incite other employees to seek wage raises or engage in other protected concerted activities for their mutual aid and protection. The Board in 1998 remanded the proceeding to the judge to receive specific evidence and to make explicit credibility determinations and findings with respect to seven issues. 326 NLRB No. 88. In his earlier decision, the judge found that the Respondent violated Section 8(a)(1) by discharging and/or refusing to rehire Williams and Fields because of their protected concerted activity, together with two other employees, in collectively demanding a wage increase. [HTML] [PDF]

Medtech Security, Inc. (2-CA-30250; 329 NLRB No. 81) New York, NY October 29, 1999. The Board affirmed the administrative law judge's finding that the Respondent violated the Act by discriminatorily discharging Eugene Acosta for engaging in prounion activity, by interrogating employees about their union activities, and by threatening employees with reprisals. [HTML] [PDF]

Charge filed by Eugene Acosta, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, June 29 and 30, 1998. Adm. Law Judge Raymond P. Green issued his decision October 7, 1998.

Climatrol, Inc. (6-CA-28008(1-2) et al.; 329 NLRB No. 83) Clarksburg, WV Nov. 2, 1999. The Board held that the Respondent threatened employees with a loss of economic benefits, jobs, and plant closure, and then eliminated those benefits along with the jobs of three employees and reduced work opportunities because of the employees' union activity. It concluded the pervasive and increasingly coercive unfair labor practices within weeks of the advent of the employees' union activity, warranted the issuance of a category I Gissel bargaining order. The judge did not think a bargaining order was necessary if three discriminatees were reinstated pursuant to a recommended order, making a fair election likely. [HTML] [PDF]

The Board distinguished the instant case from Be-Lo Stores v. NLRB, 126 F.3d 268 (4th Cir. 1997), in which the court declined to enforce a bargaining order issued by the Board.

It stated: "Unlike that case, the spate of egregious unfair labor practices here affects every member of the small, single-location unit, the Union unquestionably commands majority support, and turnover within the unit as it was originally constituted is marginal. Further, in our view, a justifiable rather than an inordinate amount of time has elapsed for the processing and litigation of this case to date and for our issuance of a bargaining order."

Charges filed by Sheet Metal Workers Local 33; complaint alleged violation of Section 8(a)(1), (3), (4) and (5). Hearing at Clarksburg and Fairmont, Oct. 17 and 18 and Dec. 2 and 3, 1996. Adm. Law Judge Martin J. Linsky issued his decision April 16, 1997.

Topside Construction, Inc. (20-CA-27725, et al., 20-RC-17245; 329 NLRB No. 75) Sacramento, CA Oct. 22, 1999. Affirming the decision of the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to recall Mike Buttacavoli, Mike Munoz, and Chris McBride because of their activities for Operating Engineers Local 3; and violated Section 8(a)(1) by interrogating employees about their union activities and threatening them with discharge and closure of its operations if they select a union to represent them. [HTML] [PDF]

In Case 20-RC-17245, the challenges to 4 ballots cast in the election held on April 25, 1997 were sustained, the challenge to one ballot was overruled, and the withdrawal of the challenges to 4 ballots was granted. In the absence of exceptions, the Board adopted, pro forma, the judge's recommendations that the Employer's Objections 3, 4, 6, and 7 be overruled, and his conclusion that the absence of union objections is no bar to setting aside the election (based on the Respondent's unlawful conduct that occurred between the filing of the representation petition and the conduct of the election) in the event the revised tally of ballots shows that the Union did not receive a majority of the valid ballots cast.

The Board remanded the case to the Regional Director to open and count the ballots of Steve Peterson, Matt Haser, Doug Young, Don Young, Mike Buttacavoli, Michael Drury, Stan Thrall, Michael Munoz, and Chris McBride and to issue a revised tally of ballots and a certification of representative if the union has received a majority of the valid ballots. If the revised tally shows that the Union did not receive a majority of the valid ballots cast, the Board ordered that the election be set aside and a new election be held.

Charges filed by Operating Engineers Local 3; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Sacramento, Aug. 20-22, 1997. Adm. Law Judge Clifford H. Anderson issued his decision March 10, 1998.

Walt Disney World Co. (12-CA-18484; 329 NLRB No. 77) Orlando, FL Oct. 26, 1999. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to furnish the Actors' Equity Association with relevant and necessary information it requested about the job assignments of employees covered by the parties' collective-bargaining agreement and the Respondent's alter ego relationship with other corporations, and by delaying the production of such information. [HTML] [PDF]

Charge filed by the Actors' Equity Association; complaint alleged violation of Section 8(a)(1) and (5). Hearing by telephone July 27 and Aug. 3, 1998 and at Tampa on Aug. 5, 1998. Adm. Law Judge Howard I. Grossman issued his decision Dec. 23, 1998.

The Hertz Corporation (12-CA-19733; 329 NLRB No. 78) West Palm Beach, FL Oct. 26, 1999. The Board affirmed the administrative law judge's dismissal of the complaint alleging that the Respondent, through its agent and supervisor Hoffman, threatened employees with loss of retroactive pay if they chose to participate in a strike. The one complaint allegation pertained to a conversation between employee McClintock and Hoffman. The General Counsel did not call McClintock to testify, nor, was any reason advanced for the failure to do so. The credited testimony of Hoffman did not contain any unlawful threat. [HTML] [PDF]

Charge filed by Teamsters Local 390; complaint alleged violation of Section 8(a)(1). Hearing at Miami on May 13, 1999. Adm. Law Judge William N. Cates issued his decision June 8, 1999.

Eckert Fire Protection Co. (25-CA-26184; 329 NLRB No. 79) Indianapolis, IN Oct. 28, 1999. Chairman Truesdale and Members Fox and Liebman found that the one-page memorandum purporting to be an answer to the complaint dated February 8, 1999 and filed by the Respondent's president, Wayne Bennett, does not constitute a proper answer to the complaint under Section 102.20 of the Board's Rules and Regulations because it fails to address any of the factual or legal allegations of the complaint, and therefore is legally insufficient under the Board's Rules. See American Gem Sprinkler Co., 316 NLRB 102, 103 (1995) (respondent's apparently pro se answer stating that it does not "agree with the Union's position" too vague to constitute an acceptable answer). Even under the more lenient standard applicable to pro se respondents, the majority found that the Respondent's answer is still inadequate because it fails to specifically address the substance of any complaint allegations. See e.g., American Gem, supra, 316 NLRB at 103, fn. 5. [HTML] [PDF]

In the absence of good cause being shown for the failure to file a sufficient answer, the majority granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate striking employees upon their unconditional offer to return to work, refusing to hire or consider for hire certain applicants, increasing employees' wages, and changing its work rules; and violated Section 8(a)(1) by threatening its employees with plant closure if they select Indiana State Pipe Trades Association and Plumbers Local 669 as their collective-bargaining representative.

Members Hurtgen and Brame, dissenting, would deny the General Counsel's motion for summary judgment. They wrote: "The unrepresented employer has acknowledged receipt of the papers and timely responded. In response to the complaint, the pro se Respondent said that it denied any and all of the allegations. The Respondent clearly puts the General Counsel's allegations in issue, and we believe that this is a sufficient denial to put the General Counsel to his proof at a hearing."

Charges filed by Indiana State Pipe Trades Association and Plumbers Local 669; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment June 24, 1999.

Produce Warehouse of Coram, Inc. (29-CA-22012; 329 NLRB No. 80) Coram, NY Oct. 27, 1999. Agreeing with the administrative law judge, the Board held that the Respondent legally discharged Richard Davis for being out of uniform at work (wearing a union hat and refusing to replace it with a company hat) in violation of company policy that employees wear company supplied clothing; and dismissed the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act. The judge found that the Respondent's rule requiring employees to wear company supplied clothing, including hats, is a valid special circumstance to justify prohibiting employees from wearing union insignia and an exception to an employee's general right to display union insignia. The General Counsel failed to establish discriminatory enforcement of the valid uniform policy, the judge ruled. [HTML] [PDF]

Charge filed by Food and Commercial Workers Local 342-50; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn on Jan. 21, 1999. Adm. Law Judge Steven Fish issued his decision June 15, 1999.

AmeriHealth Inc./AmeriHealth HMO (4-RC-19260; 329 NLRB No. 76) Atlantic and Cape May Counties, NJ Oct. 18, 1999. The Board denied the Petitioner's (Food and Commercial Workers Local 56) request for review of the Regional Director's decision and order dismissing the Union's petition seeking to represent all primary care and specialty physicians employed by AmeriHealth in Atlantic and Cape May Counties, New Jersey. Like the Regional Director, the Board found that the petitioned-for physicians are independent contractors under the common law agency test as discussed in Roadway Package System, 326 NLRB No. 72 (1998), and not employees within the meaning of Section 2(3) of the Act. The Board particularly agreed with the Regional Director's finding that the relationship between the petitioned-for physicians and AmeriHealth is similar to the relationship between the advertising agency and the freelance advertisement photographers who were found to be independent contractors in Young & Rubicam International, 226 NLRB 1271 (1976). [HTML] [PDF]

Contrary to the Regional Director, the Board accorded little weight to the fact that AmeriHealth does not exercise substantial control with respect to the physicians' physical conduct in the performance of services such as examining patients, diagnosing illnesses, and performing specific procedures, since it is not customary in the medical profession for fully trained physicians, including traditional staff physicians employed by hospitals or clinics, to be subject to substantial controls over the manner in which they perform their professional duties. The Board also accorded less weight than the Regional Director to the absence of on-site supervision in light of AmeriHealth's other means of monitoring the physicians' performance by paperwork, telephone, and computer. Member Brame did not find that the Regional Director accorded undue weight to the degree of control which AmeriHealth exercises over the physicians' performance of medical services or to the absence of the on-site supervision.

The Board pointed out that in denying review, it was not necessarily precluding a finding that physicians under contract to health maintenance organizations may, in other circumstances, be found to be statutory employees.

BE & K Construction Company (32-CA-9474, et al.; 329 NLRB No. 68) Birmingham, AL Sept. 30, 1999. Finding that there is no genuine issue as to any material fact, the Board granted the General Counsel's motion for summary judgment, denied the Respondent's cross-motion for summary judgment, and found that the Respondent violated Section 8(a)(1) of the Act by filing and maintaining a civil lawsuit against the Charging Party Unions in Federal district court. Applying Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983), the Board agreed with the General Counsel and the Unions that the Respondent's suit was unmeritorious and that it was filed in retaliation against the Unions' protected activities, i.e., the Unions' legislative lobbying, suit filing, and instituting grievance and arbitration proceedings. It also rejected the Respondent's contention that some of the complaint allegations are time barred. The Board ordered the Respondent to make the Unions whole by reimbursing them for the attorneys' fees they incurred in defending against the suit. [HTML] [PDF]

Charges filed by Plumbers Local 342, et al.; complaint alleged violation of Section 8(a)(1). General Counsel filed motion for summary judgment March 13, 1996.

John P. Scripps Newspaper Corp. d/b/a The Sun (19-UC-596; 329 NLRB No. 74) Bremerton, WA Sept. 30, 1999. The issue on review is whether the Employer newspaper's creative services department employees should be added to the existing unit of employees performing composing room work through the Union's (Communications Workers Local 14671) unit clarification petition (whether the nonunit employees to whom the work was transferred [the Creative Services employees] will remain outside the unit). [HTML] [PDF]

Chairman Truesdale and Members Fox and Liebman set forth a new test to be applied in unit clarification proceedings involving bargaining units defined by the work performed, relying on Bay Shipbuilding, Corp., 263 NLRB 1133, 1140 (1982), enfd. 721 F.2d 187 (7th Cir. 1983), United Technologies Corp., 287 NLRB 198, 204, 1987), enfd. 884 F.2d 1569 (2d Cir. 1989), and Illinois-American Water Co., 296 NLRB 715 (1989), enfd. 933 F.2d 1368 (7th Cir. 1991). Applying the new test to this case, the majority concluded that Creative Services employees should be added to the existing unit of employees performing composing room work and clarified the unit to include them. Members Hurtgen and Brame wrote separate dissents.

"We recognize, as our dissenting colleagues argue, that Bay Shipbuilding, United Technologies, and Illinois-American, unlike this case, were unfair labor practices cases involving the transfer of employees from the unit. While not dispositive of the issues presented here, these cases are nonetheless clearly analogous and provide useful guidelines for our analysis. Each of these cases involved functionally described units. The issue presented was whether the new jobs were sufficiently dissimilar from the jobs performed by unit employees to justify the employer's removal of the work from the unit. That is precisely the issue presented here. Although the Employer in this case has not removed people from the current unit, it has removed work by creating new job classifications that clearly involve the performance of unit work, just as in those unfair labor practice cases. Thus, the principles that guided the Board and the courts in those cases in deciding whether the new positions were unit positions are clearly relevant to resolving the analogous issue in this case. In fact, in Bay Shipbuilding, the court said 'Clarification of the unit through the unfair labor practice proceeding was . . . entirely appropriate." NLRB v. Bay Shipbuilding, supra, 721 F.2d at 191. Thus, it is to the principles of these cases to which we turn to determine the appropriate standards to be applied in analogous representation proceedings.

Accordingly, we shall apply the following standard in unit clarification proceedings involving bargaining units defined by the work performed: If the new employees perform job functions similar to those performed by unit employees, as defined in the unit description, we will presume that the new employees should be added to the unit, unless the unit functions they perform are merely incidental to their primary work functions or are otherwise an insignificant part of their work. Once the above standard has been met, the party seeking to exclude the employees has the burden to show that the new group is sufficiently dissimilar from the unit employees so that the existing unit, including the new group, is no longer appropriate.

In determining whether the presumption has been rebutted, we will consider community-of-interest factors that relate to changes in the nature and structure of the work. As discussed above, however, a showing that technological innovation has affected unit work will not suffice to exclude new classifications performing that work from the unit unless the work has changed to such an extent that the unit would no longer make sense if it included the disputed employees. Thus, the presumption will apply if the only significant differences in the work performed 'flow directly from the improved methodology and increased efficiency brought on by computer technology.' United Technologies, supra, 287 NLRB at 204.

Further, reliance on community-of-interest factors that are solely within the employer's control would usually not be appropriate to rebut the presumption. For example, reliance on differences in wage rates between existing unit employees and employees sought to be included would be misplaced. Wages of unit employees, of course, are subject to negotiations, which necessarily do not control wages of nonunit employees. Any resulting disparity should not provide a separate basis for continuing to exclude employees from the unit when those employees now perform work covered by the unit description. To permit reliance on factors that an employer can manipulate in an effort to exclude employees from the unit would be a 'patent form of circular reasoning.' [Oxford Chemicals, Inc., 286 NLRB 187, 188 fn. 5 (1987). See also Austin Cablevision, 279 NLRB 535, 537 (1986).] We recognize that the burden we impose to show sufficient dissimilarity is a substantial one, but we believe it is both appropriate and necessary to protect the integrity of the bargaining unit the parties have agreed to."

Member Hurtgen, dissenting, would apply extant principles and not include these employees in the existing unit without their consent. He wrote: "In sum, extant law places a heavy burden on the party who wishes to add, without consent a new classification to an existing unit. By contrast, my colleagues place the substantial burden on the party who wishes to avoid the forced representation of these employees. And, my colleagues essentially eschew the 'community of interest' principles that have historically governed the resolution of unit issues. I would follow extant principles, and thereby respect the Section 7 rights of the employees."

In his dissent, Member Brame wrote: "Without analyzing the majority's laborious manipulation of the facts, more appropriate to the resolution of a jurisdictional dispute than a unit placement issue, the obvious point here is that of course, where, as here, nonunit employees are assigned work that in some respect falls within the bargaining unit description, there will be some similarity between certain of their functions and those of unit employees. Since this is a given, it should be the starting point of any unit placement analysis. By taking this given, the logical starting point of any analysis, and making it their analytical conclusion, my colleagues clarify only that their decision to include the creative services employees in the bargaining unit is outcome oriented and that it is driven neither by law nor logic, but only by the engine of their own presumption. Thus, . . . . the majority's analysis of this unit placement must fail because it has no basis in logic, the law, or the facts.

Finally, if the application of the traditional accretion analysis, which the Regional Director correctly applied here, requires a finding that the creative services employees, or any other group of employees, should not be accreted into the bargaining unit, so be it. The result is not erroneous simply because it offends the majority, and it does not justify the majority's placement of a presumptive thumb on the scales of justice to ensure a contrary outcome."

Service Employees International and its Local 525 (5-CB-6558, et al., 5-CC-1118 (1,2), et al.; 329 NLRB No. 64) Washington, DC Sept. 30, 1999. The Board held that the Respondents violated Section 8(b)(1)(A), (i), and (ii)(B) of the Act by coercing employees in the exercise of their Section 7 rights and by enmeshing Washington Square Limited Partnership (WSLP), The Lenkin Company Management, Inc. (Lenkin), PMI, Monument Parking, the law firm of Arent, Fox, Kintner, Plotkin & Hahn (Arent, Fox), and other neutrals in their primary labor dispute with janitorial contractors Red Coats Co. and United Service States Service Industry (USSI). In agreement with the judge, the Board dismissed allegations that the Respondents violated the Act by attempting to impede a General Maintenance employee from crossing their picket line; by their October 25 (noontime), 26, and 29, 1990 rallies outside the Washington Square building; by organizer Kevin Brown's comments during their October 25 after-work rally; by their October 19 visit to Washington Square offices; by their November 2 demonstration outside 2301 M Street, N.W.; and by their November 6 distribution of flyers at Lenkin's Bethesda, Maryland headquarters. [HTML] [PDF]

The majority opinion is by Members Hurtgen and Brame. Member Hurtgen wrote a separate concurring opinion to note other situations in which he might be willing to find that neutrality has been lost. Member Liebman, dissenting in part, would dismiss all allegations that the Respondents violated Section 8(b)(4) except for their picketing of the PMI and Monument parking garages. Member Brame, dissenting in part, found three additional incidents in which the Respondents' secondary activity was coercive.

The consolidated complaint allegations involve the SEIU's attempt to organize janitorial workers in Washington, D.C., as part of the Unions' nationwide campaign titled "Justice for Janitors." Some allegations stem from a brief strike led by the SEIU at a building serviced by janitorial employees of the General Maintenance Company. Others allege that the SEIU engaged in unlawful secondary activity when it picketed, handbilled, and demonstrated at buildings and homes owned and/or managed by the Charging Parties, and their principals, as part of a campaign to obtain recognition for janitors employed by primary employers Red Coats and USSI.

Members Hurtgen and Brame found that the Respondents' secondary conduct included their October 31 picketing of the PMI-managed garage in Washington Square; the November 1 "trashing" incidents at Washington Square (1130 and 1133 Connecticut Avenue, N.W.); demonstrating at the Aspen Hill Racquet Club on November; their November 15 conduct at the law offices of Arent, Fox; and the November 1, 14, and 16 demonstrations outside the homes of Albert and Ronald Abramson. They found no merit to either the Respondents' claims that Charging Parties Lenkin and WSLP (or their principlas), or Arent, Fox, forfeited their neutrality by engaging in a joint venture with primary employers USSI or Red Coats--through the Apartment and Office Building Association (AOBA) or otherwise--to oppose unionization of the primaries' janitorial employees; or to their dissenting colleagues' view that the Charging Parties essentially became parties to the labor dispute and thus lost their neutrality to that dispute. Members Hurtgen and Brame found that Charging Parties WSLP and Lenkin are not "allies" of the primary employers Red Coats or USSI and that the Charging Parties do not substantially control the working conditions of the primaries' employees. Accordingly, they held that under extant law, the judge correctly found that the Charging Parties remain "neutrals."

Member Liebman agreed that the Charging Parties are neither "allies" nor a single employer with Red Coats or USSI, under traditional Board law. However, she would find that, by their choice to actively support and participate, through the AOBA, in the campaign to thwart the Unions' attempt to organize and represent the employees of Red Coats and USSI, the Charging Parties forfeited their "neutrality" in the labor dispute and the protection afforded by 8(b)(4) to neutral employers.

Charges filed by General Maintenance Service Co., Lerner Enterprises, Theodore Lerner, Mark Lerner, Albert Abramson and Gary Abramson, d/b/a Washington Square Limited Partnership, and The Lenkin Company Management; complaint alleged violation of Section 8(b)(1)(A), (i), and (ii). Hearing at Arlington on various dates in June, July, and Aug. 1991. Adm. Law Judge Arline Pacht issued her decision Nov. 6, 1992.

Royal Motors Sales (20-CA-22989, et al.; 329 NLRB No. 71) San Francisco, CA Sept. 30, 1999. The Board reversed an administrative law judge's determination that the Respondents, three auto dealers, had lawfully bargained to impasse prior to implementing final bargaining proposals during negotiations in 1989. Instead, it found the Respondents violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith and unilaterally implementing impermissibly broad merit wage proposals and by unlawfully locking out certain bargaining unit employees, among other unfair labor practices. The majority opinion is by Chairman Truesdale and Member Fox. Member Brame, dissenting in part, would adopt the judge's impasse findings. [HTML] [PDF]

"Applying that principles of McClatchy II and III, we find . . . that the wage proposals implemented by the Respondents were merit pay proposals and that they do not contain definable objective procedures and criteria for their application. Accordingly, we find that the proposals conferred impermissible broad employer discretion over wages and, thus, that the Respondents' unilateral implementation of the proposals violated Section 8(a)(5) and (1) of the Act."

"First, they label any union statement which suggests a resolute and uncompromising opposition to flat-rate systems as 'posturing' while labeling the unions' last minute statements of professed interest in flat rate as 'genuine.' They engage in this one-sided labeling without sharing with the parties or reviewing court the magic formula by which they, reading from a cold record and in utter disregard for the judge's contrary findings, could discern these underlying motivations. Second, and contrary to all our rules, they cavalierly override the judge's credibility resolutions regarding the genuineness of the unions' last minute proffers."

Charges filed by Teamsters Local 665; Machinists Local Lodge 1305 and District Lodge 190; and Auto, Marine and Specialty Painters Local 1176; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at San Francisco, 30 days between July 20, 1992 and February 11, 1993. Adm. Law Judge Michael D. Stevenson issued his decision December 30, 1993.

Food & Commercial Workers Locals 951, 1036 & 7 (Meijer, Inc.) (16-CB-3850, et al.; 329 NLRB No. 69) Grand Rapids, MI Sept. 30, 1999. Affirming an administrative law judge, the Board held in a 4-1 decision that the Union did not violate Section 8(b)(1)(A) of the Act by charging nonmember Beck objectors for organizing expenses. [HTML] [PDF]

The majority (Chairman Truesdale and Members Fox, Liebman and Hurtgen) observed that "organizing is both germane to a union's role as a collective-bargaining representative and can benefit all employees in a unit already represented by a union." It continued:

"Unions are able to negotiate higher wages for the employees they represent when the employees of employers in the same competitive market are organized, and unions are less able to do so when they are not organized. Thus, represented employees, whether or not they are members of the union that represents them, benefit, through the results of collective bargaining, from that union's organization of other employees and consequently, under Beck, may be charged their fair share of the union's organizing expenses."

The majority found that the Supreme Court's Ellis decision is distinguishable and not controlling under the NLRA. It stated:

"Ellis was an action by airline employees challenging fees charged by the union that represented their bargaining unit under the Railway Labor Act. As we held in California Saw, precedent under public sector labor law and the Railway Labor Act, although possibly providing useful guidance, is not binding in the context of the NLRA. In this instance, we find that Ellis' rationale in holding organizing expenses, nonchargeable is inapplicable to cases under the NLRA."

While dissenting Member Brame joined his colleagues in adopting the judge's findings that the Union had engaged in certain Beck violations, such as notifying newly hired employees that they were required to become union members as a condition of employment, he disagreed on the majority's principal finding that organizing expenses are chargeable to objecting nonmembers. He pointed out the Court held in Ellis that under Section 2, Eleventh of the Railway Labor Act organizing expenses are not chargeable to objectors, and the Court in Beck found that Section 8(a)(3) of the NLRA has the same meaning as Section 2, Eleventh of the RLA.

Adm. Law Judge William J. Pannier III issued his supplemental decision Jan. 31, 1997.

Woodbridge Foam Fabricating, Inc. (10-CA-27548, 10-RC-14487; 329 NLRB No. 72) Chattanooga, TN Sept. 30, 1999. In this proceeding, an administrative law judge found that the Respondent (1) had violated Section 8(a)(1) of the Act by unlawfully soliciting grievances and promising to remedy them. Although he found a violation, he did not set aside the election, which the Union had lost. The judge also dismissed allegations that the Respondent had told employees that unionization would be an exercise in futility, and (2) had ascribed an alleged reduction in a pay increase to the employees' union activities. [HTML] [PDF]

A panel majority (Chairman Truesdale and Member Fox) agreed with the judge's finding of the 8(a)(1) violation on soliciting grievances. In a separate dissent, Member Brame would find the Respondent committed no unfair labor practices and would dismiss the complaint in its entirety. A different panel majority (Chairman Truesdale and Member Brame) agreed with the judge's dismissal of the two other 8(a)(1) allegations and his conclusion that the Respondent "did no more than explain the sometimes harsh economic realities of collective bargaining." That same panel majority agreed with the judge that the election should not be set aside. In a separate dissent, Member Fox would find violations of those allegations and set aside the election.

Charge filed by Needletrades, Industrial and Textile Employees; complaint alleged violation of Section 8(a)(1). Adm. Law Judge Phillip P. McLeod issued his decision Nov. 14, 1995.

King Broadcasting Co. d/b/a KGW-TV (36-RC-5583; 329 NLRB No. 39) Portland, OR Sept. 30, 1999. Chairman Truesdale and Members Fox and Liebman concluded, contrary to the Regional Director, that the associate producers and assignment editors employed by the Employer in the news department of its television station KGW-TV are not supervisors within the meaning of Section 2(11) of the Act because they do not exercise independent judgment in assigning or directing other employees in their performance of their duties. The majority relied on precedent finding similarly situated individuals in the broadcast industry were not Section 2(11) supervisors where they were part of an integrated production team in which their skills and responsibilities were joined in a collaborative effort with those of other news department employees in order to coordinate and develop a single product. See Westinghouse Broadcasting Co. (WBZ-TV), 215 NLRB 123 (1974); Post-Newsweek Stations, 203 NLRB 522 (1973); Meredith Corp. v. NLRB, 679 F.2d 1332, 1342 (10th Cir. 1982), enfg. 243 NLRB 323 (1979). [HTML] [PDF]

Members Hurtgen and Brame, dissenting in part, would find that the assignment editors are statutory supervisors based on their role in assigning work to employees and exclude them from the unit.

The American Federation of Television and Radio Artists seeks to represent producers, associate producers, assignment editors, and copy editors in the news department.

Plumbers Local 562 (14-CD-935, et al.; 329 NLRB No. 53) O'Fallon, MO Sept. 30, 1999. The Board decided that employees of Grossman Contracting Company and C & R Heating and Service Company represented by Plumbers Local 562 rather than employees represented by Sheet Metal Workers Local 36 are entitled to perform the work in dispute. [HTML] [PDF]

In Case 14-CD-935, the disputed work, at the MEMC facility in O'Fallen, Missouri, involves the installation of a piping containment system for separating piping and potential leaks of noxious fumes from the clean room; the attachment to installed duct work of clean rooms, of test ports for gauging temperature and humidity regulation compliance; and the installation of scrubbers to reactor systems for cleaning the air and contaminants produced by reactors. At the Automated Data Processing facility in Sunset Hills, Missouri, it involves installation of nonconducted cooling units in the mainframe computer room. And, at the Harrah's Casino project in Maryland Heights, Missouri, the installation of vertical stack fan coil units in the gambling complex hotel. Employees of Grossman represented by the Plumbers are entitled to perform this work.

In Case 14-CD-936, the work in dispute work awarded to Plumbers-represented employees of C & R Heating and Service Company involves the installation of a small, nonducted air-conditioning unit at the construction site of the Washington University School of Law in St. Louis, Missouri.

In Case 14-CD-937, the work in dispute awarded to Plumbers-represented of Grossman involves the installation of variable air volume boxes with attached hot water reheat booster coils in the gambling complex hotel and casino at the Harrah's Casino project in Maryland Heights, Missouri; and the installation of a metalbestos emergency exhaust flue at building #181 at the Anheuser-Busch project in St. Louis, Missouri.

GTE Southwest Inc. (16-CA-17012; 329 NLRB No. 57) Irvine, TX Sept. 30, 1999. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to supply Communications Workers Local 6171 with requested relevant information concerning the structured interview test for the customer care advocate position. Contrary to the judge's recommended remedy, the Board ordered the Respondent to bargain with the Union concerning disclosure of the requested information, rather than to supply the information. The Respondent conceded that the requested information was relevant to the Union's grievance processing needs, but it asserted a confidentiality defense. [HTML] [PDF]

Charge filed by Communications Workers Local 6171; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Fort Worth on Aug. 10, 1995. Adm. Law Judge Albert A. Metz issued his decision Oct. 23, 1995.

McGraw Hill Broadcasting Co., Inc., d/b/a KGTV (21-RC-19478; 329 NLRB No. 48) San Diego, CA Sept. 30, 1999. The Board found, contrary to the Regional Director, that the five producers/directors who are employed in the program operations department of the Employer's television station, KGTV, in San Diego, California, are not statutory supervisors. The case was remanded to the Regional Director for further appropriate action. Nabet Local 54 is the petitioning union. The Board found controlling precedent, as more fully discussed in KGW-TV, 329 NLRB No. 39 (1999), that has found that similarly situated individuals in the broadcast industry were not Section 2(11) supervisors where they were part of an integrated production team in which their skills and responsibilities were joined in a collaborative effort with those of other news department employees in order to coordinate and develop a single product. [HTML] [PDF]

MGM Grand Hotel (28-RD-776, et al.; 329 NLRB No. 50) Las Vegas, NV Sept. 30, 1999. Chairman Truesdale and Members Fox and Liebman granted the Petitioner's request for review and, on review, affirmed the Regional Director's conclusion that a reasonable time to bargain had not elapsed at the time the decertification petitions were filed and the petitions should be dismissed as barred by the Employer's voluntary recognition of Culinary Workers Local 226 and Bartenders Local 165. Members Hurtgen and Brame wrote separate dissenting opinions. [HTML] [PDF]

Voca Corp. (9-CA-32133-2, 32278; 329 NLRB No. 60) OH, WV, NC, MD, DC Sept. 30, 1999. Members Fox and Liebman, with Member Brame dissenting, agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by the suggestion inherent in the exclusionary language of its corporate-wide bonus program (VOCA Incentive Plan (VIP)) that unrepresented employees will forfeit the plans' benefits if they chose union representation, by telling employees that their benefits would automatically be reduced because they transferred from a nonunion to a union-represented facility, and by impliedly promising benefits to Huntington, West Virginia bargaining unit employees if they continued to reject the Union (SEIU District 1199). [HTML] [PDF]

No exceptions were filed to the judge's findings, adopted by the Board, that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union over the payment of the bonus to the Huntington unit employees and failing to furnish requested information regarding the VIP plan. The Board reversed the judge's findings that the Respondent violated Section 8(a)(3) by changing its established rule excluding union-represented employees from participation in the VIP program and by delaying the distribution of the VIP payment from August to October 1994.

Charges filed by Service Employees International and its District 1199; complaint alleged violation of Section 8(a)(1), (3), and (5). Adm. Law Judge Judith A. Dowd issued her decision May 22, 1996.

VFL Technology Corp. (9-RC-16740, et al.; 329 NLRB No. 49) West Chester, PA Sept. 30, 1999. In a 4-1 decision, the Board found, contrary to the Acting Regional Director, that the Employer and the Steelworkers (USWA) have a collective-bargaining agreement that constitutes a 9(a) contract sufficient to bar the instant petitions filed by Operating Engineers Local 18 and Laborers Local 265. Although the majority found that the contract between the Employer and the USWA is a 9(a) agreement, the case was remanded to the Regional Director to reopen the record regarding the effectiveness of the alleged disclaimer of interest by the USWA in representing the Employer's employees, specifically as to whether the petitions are barred by the current contract. The majority (Chairman Truesdale and Members Fox, Liebman, and Hurtgen) wrote: [HTML] [PDF]

"We reject as inherently contradictory the view of the Regional Director and our dissenting colleague that even though the relationship between the Union and the Employer was converted from an 8(f) relationship to a 9(a) relationship by virtue of the Employer's voluntary recognition of the Union as the majority representative of its employees, the agreement somehow remained an 8(f) agreement and therefore may not bar an election."

In his dissent, Member Brame wrote: "I agree with the Acting Regional Director's finding that, assuming that the Employer is primarily engaged in the construction industry, the prehire contract entered into by the Employer and the United Steelworkers of America (USWA) was not transformed into a Section 9 contract simply by the Employer's later recognition of the USWA as its employees' majority representative. Thus, as a prehire contract cannot serve as a contract bar, I would find that, assuming the Employer is primarily engaged in the construction industry (an issue that my colleagues find unnecessary to resolve), the USWA's prehire contract with the Employer does not bar the Petitioners' election petitions."

Polaroid Corp. (1-CA-29966, et al.; 329 NLRB No. 47) Cambridge, MA Sept. 30, 1999. The Board upheld an administrative law judge's finding that the Respondent violated Section 8(a)(2) of the Act by establishing an employee participation committee that constituted a labor organization within the meaning of Section 2(5) and existed for the purpose of "dealing with" the Respondent concerning terms and conditions of employment. The majority opinion is by Chairman Truesdale and Member Liebman. Member Brame issued a concurring opinion and Member Hurtgen dissented. [HTML] [PDF]

The Respondent conceded that it dominated and supported the 30-member Employee-Owners' Influence Council (EOIC) and that the group addressed statutory conditions of work. However, the company maintained that EOIC was a unilateral mechanism limited to brainstorming or information-sharing as permitted in E.I. du Pont & Co., 311 NLRB 893 (1993). It also contended that the EOIC did not represent other employees.

Rejecting those arguments, the Board found that the EOIC met the statutory definition of labor organization because it existed "for the purpose of dealing with" the Respondent concerning grievances, labor disputes, wages, rates or pay, hours of employment or conditions of work. The Board stated:

"[T]he record evidence establishes that the EOIC was not limited to a unilateral mechanism of brainstorming, information sharing, suggestion box, or survey of the employee population, by which the Respondent gained knowledge regarding its employees' preferences. Nor was the EOIC simply a mechanism by which the Respondent communicated information to its employees, or equipped selected employees to answer questions regarding existing policies or programs. The evidence establishes that the EOIC functioned, on an ongoing basis, as a bilateral mechanism in which that group of employees effectively made proposals to management, and management responded to these proposals by acceptance or rejection by word or deed."

The majority opinion also found the evidence did not support the Respondent's contention that the EOIC presented only proposals of its individual members, rather than group proposals. It noted "the Respondent would often poll the group to determine majority sentiment on the particular issue under consideration."

In his concurring opinion, Member Brame noted that in determining whether an employer is "dealing with" a labor organization, "the statutory question is whether the organization engages in a bilateral process whereby over time the parties discuss issues relating to terms and conditions of employment and the employees propose resolutions to the questions or problems discussed to which the employer responds." He said he did not believe the Board's decision expanded established interpretations of Section 8(a)(2).

In dissent, Member Hurtgen would find the EOIC was not a labor organization since it was designed to serve the employer's purpose of obtaining information and ideas upon which to make a management decision. He stated:

"In essence, a labor organization is designed to express employee concerns to management (through proposals). If the employer interferes with the independence of the entity, Section 8(a)(2) is violated. By contrast, an employer may create an entity designed to obtain information and ideas for its own purpose, i.e., to use as a factor in employer decision-making. The employer's control of this mechanism is consistent with the fact that the mechanism is designed to achieve an employer purpose."

Charges filed by Charla Scivally, an individual; complaint alleged violation of Section 8(a)(2). Hearing held at Boston, MA on June 19-23, 1995. Adm. Law Judge Marvin Roth issued his decision on June 14, 1996.

Sam Kiva, d/b/a Sam Kiva Management (2-CA-32052; 329 NLRB No. 40) Brooklyn, NY Sept. 30, 1999. The Board declined to grant the General Counsel's Motion for Summary Judgment against the Respondents for allegedly failing to file an answer to a complaint. Instead, noting the Respondent's pro se status, the Board found the Respondents' brief letter to the Region denying the refusal-to-bargain charge sufficiently responsive to the complaint to warrant a hearing on the merits. [HTML] [PDF]

Charge filed by Service Employees Local 32E; complaint alleged violation of Section 8(a)(1) and (5). General Counsel Filed motion for summary judgment June 21, 1999.

Centurion Auto Transport (12-RC-7744; 329 NLRB No. 42) Jacksonville, FL Sept. 30, 1999. The Board, holding a single-employer relationship exists among the four companies (Centurion, SED, Eagle, and ATC), directed an election be held among employees in a unit of drivers found appropriate. Included in the unit are SED drivers who own a majority of the company's class A shares of stock, but are not "powerful enough to effectively control policy of their employer," as the Board stated. [HTML] [PDF]

Albertson's/Max Food Warehouse (27-UD-99; 329 NLRB No. 44) Denver, CO Sept. 30, 1999. Overruling City Markets, Inc., 266 NLRB 1020 (1983), the Board held that the National Labor Relations Act preempts the union-security deauthorization procedures contained in Colorado's labor law. The state law places greater restraints on unit members' right to file a deauthorization petition than the NLRA by limiting such a filing to a 15-day window period. The majority opinion by Chairman Truesdale and Members Hurtgen and Brame stated: [HTML] [PDF]

"We think it is evident that through Section 14(b), Congress intended to authorize only those state laws that are more restrictive of union-security agreements than Federal law, and thus, Federal law will take precedence over any less restrictive state law."

In dissent, Members Fox and Liebman would affirm the Regional Director's dismissal of the deauthorization petition in this case for the reasons set forth in then Chairman Fanning's concurring opinion in Asamera Oil (U.S.) Inc., 251 NLRB 684 (1980), adopted by the Board in City Markets. They do not believe Section 14(b) only authorizes the States to enact legislation which is in every single respect more restrictive of union security than the NLRA.

In reversing the Regional Director's dismissal of the petition, the Board remanded the case to the Regional Director for further processing.

Plumbers Local 562 (Charles E. Jarrell Contracting) (14-CD-938; 329 NLRB No. 54) St. Louis, MO Sept. 30, 1999. In this Section 10(k) proceeding, the Board concluded that employees represented by the Pipefitters Union are entitled to perform the work in dispute with the Sheet Metal Workers Union based on the factors of employer preference and past practice, area and industry practice, and economy and efficiency of operations. [HTML] [PDF]

Regal Recycling, Inc. (29-CA-16739; et al; 329 NLRB 38) Brooklyn, NY Sept. 30, 1999. Affirming an administrative law judge, the Board found the Respondent unlawfully interrogated and discharged seven employees in undocumented alien status for their support of the Union. The Respondent contended that it had lawfully laid them off until they could produce documentation proving their eligibility under the immigration laws to work in the U.S. The decision is by Chairman Truesdale and Member Liebman, with Member Brame concurring in part and dissenting in part. [HTML] [PDF]

The majority modified the judge's recommended backpay remedy to be in accord with A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 53 (an employer's obligation to reinstate allegedly undocumented workers should be conditioned on their satisfaction of requirements under the Immigration Reform and Control Act). Member Brame, dissenting on the backpay remedy and agreeing with then Member Cohen's dissent in A.P.R.A. on this point, maintained "the discriminatees are not entitled to backpay except for periods for which they can establish their eligibility to work legally in the United States."

Member Brame also objected to the majority's special remedy of providing employee names and addresses to the Union as an alternative to a Gissel bargaining order, given the passage of seven years since the violations and small size of the bargaining unit (fewer than 20 employees).

Charges filed by Teamsters Local 813; complaint alleged violation of Section 8(a)(3) and (1). Adm. Law Judge Steven Davis issued his decision May 17, 1994.

Zurn/N.E.P.C.O. (12-CA-15833 et al.; 329 NLRB No. 52) Tampa, FL Sept. 30, 1999. Agreeing with the administrative law judge, the Board dismissed a complaint that alleged the Respondent unlawfully had refused to hire or consider for hire a large number of union members at three construction sites in Florida. [HTML] [PDF]

The Respondent's longstanding hiring policy gives preference to former employees and to employees referred by the Respondent's current managers, supervisors, and employees. The General Counsel argued that this policy was unlawful because it allegedly gave advantage to nonunion applicants and screened out applicants likely to favor unionization. However, the judge found and the Board agreed that the policy does not on its face preclude or limit the possibilities for consideration of applicants with union preferences or backgrounds. In fact, union members were hired at one of the sites.

Charges filed by Boilermakers International, Carpenters Local 140, Plumbers Local 624, and Lawrence Roberts, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tampa, 18-day trial starting Dec. 12, 1994 and ending May 10, 1995. Adm. Law Judge Richard J. Linton issued his decision Nov. 2, 1995.

Flying Dutchman Park, Inc. and Teamsters Local 665 (20-CA-26331, 26403, 20-CB-9671; 329 NLRB No. 46) San Francisco, CA Sept. 30, 1999. The Board held the Respondent unlawfully refused to sign a new written contract that it had orally agreed to with the Union. An administrative law judge concluded he could not require the Respondent to sign the agreement submitted by the Union because it contained an unlawful clause in its union-security provision. The judge found, in effect, that the one unlawful clause voided the entire contract and recommended that the complaint be dismissed. The decision is by Chairman Truesdale and Member Liebman. Member Fox concurred in part and dissented in part. [HTML] [PDF]

While the Board agreed the clause was unlawful on its face, it stated, citing Tulsa Sheet Metal Works and Custom Sheet Metal & Service Co.:

"The judge failed to consider in his analysis whether the Respondent's refusal to sign the contract was motivated by the presence of the unlawful clause in the contract or by other considerations. In cases where a contract contains an unlawful provision, but the employer's refusal to sign the contract is motivated by reasons other than the presence of the unlawful provision in the contract, the Board requires the employer to execute the contract with the unlawful provision deleted."

Because the contract does not provide for an exclusive hiring hall arrangement with the Union, the clause in question - which required employees "engaged outside of the Union office" to obtain a "referral from the Union before starting to work" - the Board concluded the clause was unlawful on its face. Member Fox dissented on this one issue, explaining:

"In my view, the reference to the requirements of obtaining a 'referral' from the Union does not, in context, mandate either that employees must be approved by the Union before they are hired or that they must join the Union before they can lawfully be required to under the 8(a)(3) proviso."

Charges filed by Toby Kelly, an individual; complaint alleged violation of Section 8(a)(1), (2), (3) and (5) and Section 8(b)(1) (A) and (2). Hearing at San Francisco, July 27, 1995. Adm. Law Judge Jay R. Pollack issued his decision Nov. 9, 1995.

Elmhurst Extended Care Facilities (1-RC-20080; 329 NLRB No. 55) Providence, RI Sept. 30, 1999. Reversing the Regional Director's finding, Chairman Truesdale and Member Fox concluded that the Employer's charge nurses (CNs) are not statutory supervisors and accordingly remanded the case for further appropriate action. The majority found that the Employer's charge nurses are distinguishable from the LPNs who were found to be supervisors in Bayou Manor Health Center, 311 NLRB 955 (1993), relied on by the Regional Director. Here, the Employer failed to meet its burden of establishing that the charge nurses perform a supervisory function in evaluating employees, the majority concluded, answering what it termed the "essential question" (whether the nurses effectively recommend a reward or other personnel action concerning other employees). "Since the answer to this question is that they do not, they are not statutory supervisors," it held. [HTML] [PDF]

Member Brame, dissenting, would adopt the Regional Director's finding that the CNs are statutory supervisors within the meaning of Section 2(11) based on their authority to evaluate the CNAs. He found the majority's purported grounds for distinguishing Bayou Manor are "wholly unpersuasive" because the evaluations prepared by the CNs in this case like those in Bayou Manor, "directly determine [] the amount of the merit increase [the CNAs] received . . ." Moreover, Member Brame added, the CNs also prepare probationary evaluations, which directly determine whether a probationary employee is terminated retained, or their probationary period is extended.

The New England Health Care Employees District 1199 is seeking to represent an overall unit of employees at the Employer's 189-bed nursing home, including the approximately 32 registered nurses (RNs) and licensed practical nurses (LPNs) employed as charge nurses.

Sheridan Manor Nursing Home (3-CA-19083, et al.; 329 NLRB No. 51) Tonawanda, NY Sept. 30, 1999. Chairman Truesdale and Member Fox reversed the administrative law judge and held that the Respondent violated Section 8(a)(1) of the Act by its January 6, 1995 memorandum that solicited employees to oppose the Union's announced ratification procedure for a collective-bargaining agreement; and violated Section 8(a)(5) and (1) by withdrawing recognition of Communications Workers Local 1168 as bargaining representative based on an antiunion petition tainted by its unlawful conduct. [HTML] [PDF]

The majority affirmed the judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(5) and (1) by refusing to execute the collective-bargaining agreement, finding that the parties never reached a mutual understanding to a material term (the agreement's effective date). However, because the Respondent's withdrawal of recognition occurred shortly after tentative agreement on all contractual terms other than an effective date, the majority ordered the Respondent, on request, to bargain with the Union concerning the unresolved subject. If an understanding is reached on the effective date of the tentative agreement ratified on January 12, 1995, following such bargaining, the Respondent shall execute the agreement.

Member Hurtgen, dissenting, found that the Respondent merely stated its 8(c) opinion as to how the ratification process should be conducted and, thus, the employee antiunion petition was not tainted by unlawful conduct. In light of these conclusions, he found it unnecessary to pass on whether the parties agreed that contract ratification was a condition precedent to reaching a binding agreement.

Charge filed by Communications Workers Local 1168; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Buffalo, July 24-31, 1995. Adm. Law Judge Howard Edelman issued his decision Dec. 7, 1995.

Transport Workers of America and its Local 525 (Johnson Controls World Services) (12-CB-3552, et al.; 329 NLRB No. 56) Cape Canaveral, FL Sept. 30, 1999. The Board agreed with the administrative law judge that Respondent Local 525 violated Section 8(b)(1)(A) and (2) of the Act by refusing to honor the objection filed by Mitchell Sohm upon his resignation from union membership, by thereafter refusing to provide Sohm a breakdown of representational and nonrepresentational expenses charged to him, and by failing to refund to Sohm the nonrepresentational portion of dues received and retained by the Respondents since receipt of his objection. Further, the Respondents violated Section 8(b)(1)(A) by maintaining and enforcing a Beck objection policy which prevents employees in the Johnson Controls collective-bargaining unit who have resigned from the Union from filing objections to the payment of fees for expenditures reflecting nonrepresentational activities for a reasonable time after their resignations. [HTML] [PDF]

The Board found, in agreement with the judge, that the Respondent International's practice of not allocating all expenses on a unit-by-unit basis does not violate the Act, and that Local 525's practice of charging objectors for extra unit representational expenses is also not in and of itself unlawful. The Board also rejected the General Counsel's claim that, because certain expenditures enumerated in the parties' stipulation of facts were not directly attributable to the objectors' bargaining units, the Respondents violated the Act by treating those expenditures as chargeable to the objectors. These complaint allegations were dismissed.

The Board severed issues regarding the chargeability of certain expenses by the Respondent International to Beck objectors and remanded them to the judge for further proceedings, including, if necessary, a reopening of the hearing to adduce additional evidence, and for the issuance of a supplemental decision.

Charges filed by Luman J. Eggleston, Sr., Noah B. Butt, IV, Mitchell L. Sohm, and Charles N. Barrett, individuals; complaint alleged violation of Section 8(b)(1)(A) and (2). Adm. Law Judge Lawrence W. Cullen issued his decision June 3, 1994.

Sandusky Mall Company (8-CA-25097; 329 NLRB No. 62) Sandusky, OH Sept. 30, 1999. Chairman Truesdale and Members Fox and Liebman held that the Respondent violated Section 8(a)(1) of the Act by refusing to permit nonemployee representatives of Carpenters Northeast Ohio District Council to distribute "area standards" handbills in the Respondent's shopping mall while permitting access for other commercial, civic, and charitable purposes; and by summoning the police to have the representatives arrested. The majority acknowledged that the U.S. Court of Appeals for the Sixth Circuit, in which this case arises, has rejected the Board's interpretation of "discrimination" as used in Babcock & Wilcox, 316 NLRB 158 (1995), and that the Fourth and Seventh Circuits have expressed doubt as to that interpretation. The majority "respectfully" disagreed with the Sixth Circuit's conclusion and adhered to the view that an employer that denies a union access while regularly allowing nonunion organizations to solicit and distribute on its property unlawfully discriminates against union solicitation. [HTML] [PDF]

Member Hurtgen, dissenting, would find that the Respondent acted lawfully by prohibiting nonemployee union agents from engaging in "area standards" handbilling on its property and dismiss the complaint. He noted particularly that the union agents sought to persuade the public to boycott a mall tenant.

In a separate dissent, Member Brame concluded that the record does not establish that the Respondent's conduct in excluding the Union comes within the narrow "discrimination exception" to its right to exclude nonemployee solicitations from its property. He explained: "[T]he Respondent's rule which, in application affords access to charitable organizations and commercial ventures not in conflict with the interest of the mall and its tenants is not unlawful because it operates to exclude solicitation by organizations, such as the Union, whose avowed objective is to undermine one of the businesses in the mall. Moreover, there is no evidence that the Respondent's valid no-solicitation rule was not consistently applied."

The Sandusky Mall is an enclosed shopping center containing approximately 96 stores. A common area or concourse at the center of the mall provides access to the tenant stores, places to sit and rest, and space leased for additional "free standing" retail outlets, such as a mall information booth, a jewelry booth, and a watch kiosk. The union business agents handbilled at the entrance to the Attivo store, a mall tenant located in the east concourse. The handbills asked the general public not to patronize Attivo because "they are undermining construction wage and benefit standards in this area" by employing nonunion R.E. Crawford Construction to remodel its store.

Charge filed by Carpenters Northeast Ohio District Council; complaint alleged violation of Section 8(a)(1). Parties waived their right to a hearing before an administrative law judge.

TCI Cablevision of Washington (19-RD-3297; 329 NLRB No. 66) Seattle, WA Sept. 30, 1999. Members Hurtgen and Brame affirmed the hearing officer's recommendation to overrule the Union's Objection 3 alleging that the Employer impliedly made a promise to all its employees that they would receive a pay raise and a retirement plan if they voted the Union out, and certified that a majority of the valid ballots cast in the election held January 22, 1997 were not for Communications Workers Local 7855. Members Hurtgen and Brame found this case is analogous to Viacom Cablevision, 267 NLRB 1141 (1983), where in a decertification context, the employer compared the pay and benefits of employees in its nonunion locations with those received in its unionized locations. Here, as in Viacom, the employer informed the employees about a "historical fact," a benefit which its unrepresented employees received, the majority concluded. And, as in Viacom, the Employer advised the employees that it could not make any promises. Members Hurtgen and Brame found the cases cited by their dissenting colleague are inapposite to the facts here. [HTML] [PDF]

Member Fox, dissenting, would find merit in Objection 3, set aside the election, and direct a second election. She pointed out that "the gravamen of the Union's objection was not only that the Employer told employees that they would be covered by the 401(k) plan if the Union was decertified, but that it conveyed to the employees the message that it would not agree to allow them to be covered by the 401(k) plan unless they voted to decertify the Union. As the Union correctly argues, such conduct has long been held by the Board to be both unlawful and grounds for setting aside an election."

Piqua Steel Co. (9-CA-32839; 329 NLRB No. 67) Piqua, OH Sept. 30, 1999. Chairman Truesdale and Member Brame found that the Respondent lawfully laid off Richard R. Hedke Jr. for lack of work and dismissed the complaint allegations that the Respondent violated Section 8(a)(1) of the Act by threatening to discharge and discharging Richard R. Hedke, Jr. because of his protected concerted refusal to operate a Lima truck crane that he believed to be unsafe and because he believed that his action was authorized by the Respondent's collective-bargaining agreement with Operating Engineers Local 18. Member Fox dissented. [HTML] [PDF]

The administrative law judge found that the Respondent did not discharge Hedke, but rather unlawfully laid him off because of his protected refusal to operate the crane. Chairman Truesdale and Member Brame found, contrary to the judge, that the General Counsel failed to prove that the Respondent's decision to lay Hedke off was motivated by his refusal to operate the crane. They found, instead, that the Respondent laid Hedke off because it had no work for him at the time of the layoff, other than to operate the crane, which he refused to do. When the crane had been repaired, the Respondent promptly reinstated Hedke. Because they found that the layoff was lawful, Chairman Truesdale and Member Brame found it unnecessary to decide whether Hedke's refusal to operate the crane was protected by Section 7. They assumed, for the purposes of analysis only, that his conduct was protected.

In dissent, Member Fox found that the Respondent violated Section 8(a)(1) of the Act by failing to recall Hedke from layoff when work became available, thus effectively converting the layoff to a discharge.

Charge filed by Operating Engineers Local 18; complaint alleged violation of Section 8(a)(1). Adm. Law Judge Stephen J. Gross issued his decision April 25, 1996.

Thoreson-McCosh, Inc. (7-UD-457; 329 NLRB No. 63) Troy, MI Sept. 30, 1999. Chairman Truesdale and Members Hurtgen and Brame decided to adhere to the Board's decision in Wahl Clipper Corp., 195 NLRB 634 (1972), and to affirm the Regional Director's Decision on Challenged Ballots, Order, Revised Tally of Ballots and Certification of Results of Election. Members Fox and Liebman wrote separate dissents. [HTML] [PDF]

The tally of ballots for the election held November 13, 1996 shows that 5 were cast for and 4 against deauthorization, with challenges to the ballots of 6 unreinstated former strikers, a sufficient number to affect the results of the election. The Regional Director found that, under Wahl Clipper, the six challenged former strikers were ineligible to vote because they are permanently replaced economic strikers who had not been reinstated by the October 27, 1996 eligibility date, preceding an election scheduled more than 12 months after commencement of the strike. In its request for review, the Union (Auto Workers and its Local 417) urged the Board to overrule the precedent of Wahl Clipper.

Chairman Truesdale and Members Hurtgen and Brame found the reasoning in Wahl Clipper, which the Board has applied consistently since 1972, remains "sound" and that neither the Union nor their dissenting colleagues have presented a "convincing" argument why they should abandon it. In Wahl Clipper, the Board construed Section 9(c) of the Act, as amended in 1959, to preclude permanently replaced former economic strikers from voting in an election held more than 12 months after the commencement of the economic strike. The Board noted that the legislative history of the provision showed that it was adopted as a compromise among various modifications proposed in both Houses of Congress, to replace the existing total prohibition against eligibility for replaced strikers. The Board concluded that the legislative history describing the final compromise reached on Section 9(c)(3) supported the view that the 12-month limitation period was established as a maximum period of voting eligibility for permanently replaced economic strikers.

Member Fox said that she agrees with the dissent in Wahl Clipper and her dissenting colleague here that Section 9(c)(3) does not preclude permanently replaced former economic strikers from voting in an election conducted more than 12 months after the commencement of the strike. She also agrees that eligibility of such former strikers to vote in an election should properly be determined on a case-by-case basis under the same test used to determine whether laid-off employees are eligible to vote, i.e., whether the employee has a reasonable expectancy of reemployment with the employer in the foreseeable future. Member Fox wrote separately "to point out the particular irrationality of extending the rationale of Wahl Clipper to the circumstances of this case and to note how this case illustrates the discriminatory treatment of former strikers under that decision."

Dissenting Member Liebman wrote: "The Board's decision in Wahl Clipper is contrary to the plain words of Section 9(c)(3) and in conflict with subsequent law regarding the reinstatement rights of permanently replaced former economic strikers. Yet today my colleagues in the majority refuse to abandon this precedent. Their action results in the continuing diminishment of the statutory right to strike--a right that Congress sought to protect in enacting the 1959 amendments. I dissent."

Ross Stores, Inc. (5-CA-23991; 329 NLRB No. 59) Carlisle, PA Sept. 30, 1999. Overruling Nippondenso Mfg. U.S.A., 299 NLRB 545 (1990), a Board majority affirmed an administrative law judge's finding that a sufficient factual relationship exists between a timely-filed Section 8(a)(3) discharge allegation in the original charge and two untimely-filed 8(a)(1) allegations in an amended charge under the test of Nickles Bakery and Redd-I to survive a Section 10(b) challenge. [HTML] [PDF]

The majority position on this issue is by Chairman Truesdale and Members Fox and Liebman. The majority noted the D.C. Circuit's rejection of the Board's attempts in Drug Plastics & Glass Co. to distinguish Nippondenso:

"Based on the foregoing, we agree with the judge that the 8(a)(3) discharge allegation in the original charge and the 8(a)(1) allegations in the amended charge are closely related under the test of Nickles Bakery and Redd-I."

Members Hurtgen and Brame, in separate dissents, would find the 8(a)(1) allegations time-barred under 10(b). Member Hurtgen would dismiss the complaint in its entirety, while Member Brame concurred with the majority that the Respondent unlawfully discharged an employee based on his union activities.

Members Fox and Liebman, dissenting in part, disagreed with Chairman Truesdale and Members Hurtgen and Brame that the Respondent did not violate 8(a)(1) by threatening that the Respondent "would do anything in [its] power to keep the Union out of the building." Like the judge, they would find this statement violated 8(a)(1).

Charge filed by David L. Jumper, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Carlisle Feb. 7 and 8, 1994. Adm. Law Judge Michael O. Miller issued his decision April 5, 1995.

Plumbers Local 342 (Contra Costa Electric) (32-CB-4435; 329 NLRB No. 65) Oakland, CA Sept. 30, 1999. Reversing an administrative law judge, the Board held in a 4-1 opinion that "mere negligence in hiring hall operations, as in other contexts where the union is administering a contract provision, does not breach the duty of fair representation." The majority said it was following the Supreme Court's instruction in Air Line Pilots Assn. O'Neill that the same "arbitrary, discriminatory, or in bad faith" standard for finding a breach of the duty applies to all union activity. The decision is by Chairman Truesdale and Members Fox, Liebman, and Hurtgen. [HTML] [PDF]

The judge, relying on Iron Workers Local 118 (California Erectors), had found that the Union's inadvertent failure to refer applicant Jacoby from its exclusive hiring hall violated Section 8(b)(1)(A) and (2) of the Act, even though no invidious or unfair considerations had been shown.

In dissent, Member Brame said nothing in O'Neill or another Supreme Court decision relied on by the majority, Steelworkers v. Rawson, "stands in the way of finding violations of both subsections of the Act based on the Union's conduct toward Jacoby." He continued: "These Supreme Court cases concern court suits alleging a breach of the duty of fair representation. They have no relevance at all to a legal theory that focuses on a violation of Section 8(b)(2) under Radio Officers and then derives a traditional 8(b)(1)(A) unfair labor practice from that predicate."

Charges filed by Joe Jacoby, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Oakland on Aug. 21, 1995. Adm. Law Judge Mary Miller Cracraft issued her decision on Dec. 5, 1995.

TNS, Inc. (10-CA-17707, 18785; 329 NLRB No. 61) Jonesboro, TN Sept. 30, 1999. In a case on remand from the D.C. Circuit, a Board majority of Members Fox and Liebman found a work stoppage at the Respondent was protected by Section 502 of the Act and that the Respondent was not entitled to hire permanent replacements for the employees who had walked off the job because of conditions that they reasonably believed were abnormally dangerous. Member Hurtgen dissented. The majority concluded: [HTML] [PDF]

"Accordingly, we find that the Respondent was without a legitimate business justification when it refused to reinstate the unit employees upon their unconditional offer to return to work and, thereby, violated Section 8(a)(3) and (1). In addition, by withdrawing recognition from and refusing to bargain with the Union based on the contention that the decertification petition signed by the replacement employees evidenced the Union's loss of majority support, the Respondent further violated Section 8(a)(5) and (1)."

"In sum, as a matter of statutory interpretation and Congressional policy, we hold that an employer cannot permanently replace employees engaged in a Section 502 work stoppage. The Mackay employer privilege, and its underlying rationale, apply only to the circumstances of a pure economic dispute. It would be particularly inappropriate to extend it to employers whose employees are forced to leave their workplace because of potentially life-threatening, abnormally dangerous working conditions, such as those which prompted the TNS employee work stoppage."

Section 502 states in pertinent part: "Nothing in this Act shall be construed to require an individual employee to render labor or service without his consent . . . nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act." Applying this statutory provision in this case, the Board found in its initial decision, 309 NLRB 1348 (1992), by a 3-1 vote that conditions at the Respondent's plant were not abnormally dangerous within the meaning of Section 502 when employees engaged in a work stoppage on May 1, 1981, and, accordingly, the Respondent did not violate Section 8(a)(3) and (1) by permanently replacing the employees.

In the prior decision, a two-member plurality (former Chairman Stephens and Member Oviatt) reversed the judge and dismissed the complaint, in pertinent part, on the grounds that the General Counsel had failed to prove that, at the time of the walkout, "the totality of available evidence supplied a sufficient basis for a reasonable good-faith belief that the employees' working conditions were 'abnormally dangerous' within the meaning of 502."

A third Member (Raudabaugh) concurred but relied on a sole-cause test for Section 502 subsequently rejected by the Court, which remanded the case to the Board for reconsideration. The court's instructions were "to articulate a majority-supported statement of the rule that [it] will be applying now and in the future . . . in determining the applicability of Section 502 in the context of occupational exposure to low-level radiation."

[W]e adopt the following test to be applied in this and future cases involving cumulative, slow-acting dangers to employee health and safety. In order to establish that a work stoppage is protected under Section 502, the General Counsel must demonstrate by a preponderance of the evidence that the employees believed in good-faith that their working conditions were abnormally dangerous; that their belief was a contributing cause of the work stoppage; that the employees' belief is supported by ascertainable, objective evidence; and that the perceived danger posed an immediate threat of harm to employee health or safety. Applying this test, we find . . . that the General Counsel met the burden of proving that the Respondent's employees engaged in a Section 502 work stoppage. Further, we hold that employees who quit work under circumstances governed by Section 502 are not economic strikers and are not subject to permanent replacement. We therefore conclude that the Respondent violated Section 8(a)(3) and (1) by failing to reinstate the employees when they offered to return to work and violated Section 8(a)(5) by withdrawing recognition from the Union and refusing to bargain with it."

In dissent, Member Hurtgen would dismiss the complaint in its entirety. He stated:

"In sum, I find that an employer, whose employees have quit work because of abnormally dangerous working conditions within the meaning of Section 502, does not violate the Act by choosing to hire permanent replacements to continue business. It is clearly reasonable to permit the hiring of permanent replacements, in light of the foregoing review of Section 502's language, its legislative background, and relevant Board and judicial precedent. Accordingly, I find that the Respondent did not violate Section 8(a)(3) and (1) by permanently replacing and failing to reinstate employees who ceased work in protest of alleged abnormally dangerous working conditions. Consequently, I conclude that the Respondent also did not violate Section 8(a)(5) by withdrawing recognition from the Union based on the decertification petition signed by the replacement employees."

Bethlehem Steel Corp. (5-UC-336; 329 NLRB No. 31) Sparrows Point, MD Sept. 27, 1999. The Board reversed the Regional Director's finding that the petition was untimely; reinstated the petition seeking to exclude the product marketing representatives, product application consultant, and secretaries (product marketing employees) from the existing unit of employees working at the Employer's Sparrows Point, Maryland facility; and remanded the case to the Regional Director for a determination on the merits. [HTML] [PDF]

The Regional Director had found that the existing contract between the Employer and the Steelworkers defined the scope of the unit and that the product marketing employees were not included. The Board wrote: "Because the petition seeks to have the Board determine the placement of employee classifications which are not expressly covered in the contract, which did not exist at Sparrows Point at the time the parties executed their contract, and which have been in dispute since they came into being at that location, we find that it would not be disruptive of the collective-bargaining relationship to entertain the clarification petition at this time."

Bethlehem Steel Corp. (5-UC-334; 329 NLRB No. 32) Sparrows Point, MD Sept. 27, 1999. The Board granted the Employer's request for review of the Regional Director's Decision and Order dismissing the unit clarification petition seeking the exclusion of customer service account representatives, telephone operators, and administrative assistants (customer service employees) from the existing unit; and affirmed the dismissal of the petition. [HTML] [PDF]

In doing so, Chairman Truesdale and Members Fox and Liebman did not rely on the Regional Director's finding that the petition was untimely under Wallace Murray Corp., 192 NLRB 1090 (1971), and found instead that the customer service employees have been historically excluded from the bargaining unit represented by the Steelworkers, and since no party has established that recent and substantial changes have occurred, the Employer's claims are not appropriately resolved in a unit clarification proceeding.

Members Hurtgen and Brame, concurring, agreed that the petition is not dismissable under Wallace Murray, but they would entertain the petition, and on the merits, would continue the historic exclusion of the classification contested herein.

Bethlehem Steel Corp. (5-UC-341; 329 NLRB No. 33) Sparrows Point, MD Sept. 27, 1999. The Board reversed the Acting Regional Director's finding that the petition was untimely under Wallace Murray Corp., 192 NLRB 1090 (1972), reinstated the petition seeking the exclusion of senior credit representatives from the existing unit, and remanded the case to the Regional Director for a determination on the merits. [HTML] [PDF]

The Board decided that unit clarification is appropriate here because the petition seeks to clarify the unit placement of a "new" classification that did not exist at the Employer's Sparrows Point, Maryland facility before the execution of the parties' most recent contract in 1973. It explained:

"Contrary to the Acting Regional Director, we find that the exempt status of the senior credit representatives is not determinative, albeit the unit description covers only nonexempt employees." In agreeing with his colleagues, Member Brame stressed that the exempt status of the senior credit representatives remains a relevant factor in determining whether these employees belong in the historical bargaining unit.

First Security Services Corp. (34-RC-1472; 329 NLRB No. 25) Bridgeport, CT Sept. 27, 1999. Members Fox and Liebman, with Member Brame dissenting, found no sufficient basis to rebut the presumption of a single-facility unit and held that the unit petitioned-for by the United Plant Guard Workers limited to guards working for First Security Services Corp. at the Bridgeport Community Hospital, is an appropriate unit for bargaining and directed an election in that unit. [HTML] [PDF]

The Employer provides guard services pursuant to contracts with business entities in Maine, Massachusetts, Rhode Island, Connecticut, New York, Maryland, and the District of Columbia. Its operations are divided into four regions. Region 2 covers the Employer's Connecticut, Westchester County, New York, and Southern Massachusetts operations. Region 2 is further subdivided into three districts, with Bridgeport Hospital and 16 other clients comprising the southern district. The contracts with the 17 clients involve 30 sites. The nearest of the other Connecticut sites to Bridgeport is 5-10 miles away while the furthest is 28 miles away. The Employer contends that a Bridgeport Hospital unit is too narrow and that the smallest appropriate unit must include the 230 guards working in the southern district of the Employer's region 2.

Members Fox and Liebman wrote after reviewing the record: "The evidence overall establishes that the identity of the Employer's guards is with the Bridgeport Hospital site, not with the southern district or with any other of the Employer's client sites, some of which are located a substantial distance from Bridgeport." They noted that the level of interchange between Bridgeport Hospital employees at other sites is marginal, as best; that a substantial number of the guards in the unit are former Bridgeport Hospital guards, who are strongly identified with Bridgeport Hospital and only Bridgeport Hospital; the authority of local supervision at the Bridgeport Hospital, while limited, involves critical day-to-day workplace issues such as work assignments and employee evaluations; and the guards wear uniforms that identify them with this site.

Dissenting Member Brame wrote: "In stretching the single-facility presumption beyond its intended limits, my colleagues find that an appropriate guard unit here can be restricted to only one of the 17 client accounts for which the Employer's New Haven, Connecticut district office is responsible. Such a result conflicts with the Board's unit determinations made in comparable situations involving employers who provide contract security service to other businesses. Like, the Regional Director, I would follow existing precedent and find that the Bridgeport Hospital guard unit requested by the Petitioner is an inappropriate unit."

Trump Taj Mahal Casino (4-UD-342; 329 NLRB No. 30) Atlantic City, NJ Sept. 28, 1999. Chairman Truesdale and Member Fox overruled the individual Petitioner's objection and certified that a majority of the employees eligible to vote have not voted to withdraw the authority of Operating Engineers Local 68-68A-68B and Theatrical Stage Employees Local 917 to require, under their agreement with the Employer, that employees make certain lawful payments to the Unions as a condition of employment, in conformity with Section 8(a)(3) of the Act. Member Hurtgen dissented in part. [HTML] [PDF]

In her objection, the Petitioner alleged that the Unions coerced employees by making threatening statements about what would ensue if the unit employees voted in favor of deauthorization, including a threat that the Unions would cease to represent the employees and a threat that their continuation in the union pension fund might be sacrificed. The Regional Director found that the threat to cease representation was objectionable, relying on Hospital 1115 Joint Board (Pinebrook Nursing Home), 305 NLRB 802 fn. 1 (1991), which held that a union's statement in connection with a deauthorization election that it would no longer represent the unit employees if they voted to deauthorize the union-security clause of the collective-bargaining agreement coerces employees in violation of Section 8(b)(1)(A) of the Act and constitutes objectionable conduct unless the union provides the unit employees with objective evidence that it would be economically infeasible to represent them in the absence of the clause.

Chairman Truesdale and Member Fox, in finding that the statements concerning cessation of representation, did not interfere with the election, overruled Pinebrook and relied on Bake-Line Products, 329 NLRB No. 29 (1999). They agreed with the Regional Director that the Unions' statement regarding pension coverage was a permissible statement about the consequence of a termination of the collective-bargaining relationship between the Unions and the Employer.

For the reasons set forth in his dissenting opinion in Bake-Line Products, Member Hurtgen found that the Unions' threat to cease representation if the unit employees voted in favor of deauthorization is objectionable conduct sufficient to set aside the election results. He found it unnecessary to pass on the statement concerning the pension plan.

Production and Maintenance Local 101 (Bake-Line Products, Inc.) (13-CB-15575, 13-UD-433; 329 NLRB No. 29) Des Plaines, IL Sept. 28, 1999. Chairman Truesdale and Members Fox and Liebman, with Members Hurtgen and Brame dissenting, overruled Hospital Employees 1115 Joint Board (Pinebrook Nursing Home), 305 NLRB 802 (1991), which found unlawful certain statements made during an election campaign, because it is "at odds with earlier cases reflecting the sound views of the Board and reviewing courts concerning the circumstances under which union disclaimers of representation should be freely allowed and given effect." [HTML] [PDF]

The majority explained: "These [earlier] cases make clear that a union may disclaim its role as collective-bargaining representative and may do so even in apparent response to the employees' filing of a deauthorization petition or the loss of a deauthorization election. We further hold that a union may so inform employees without providing them with objective evidence that its continued representation of them would be infeasible." In this regard, the majority agreed with concurring Member Stephens' view in Pinebrook, (id at 802): "Nothing in the Act necessarily prevents a union from abandoning its role as collective-bargaining representative or informing employees that it will no longer act as their bargaining representative should the employee[s] decide to revoke the union-security provisions of the contract."

The majority, in finding that the dissent's analogy between plant closure statements and cessation of representation statements fails, wrote: "Thus, when a union says it may disclaim representation if it loses a deauthorization petition, this is a statement based on the objective reality of representation. Unlike the plant closure statements, there is full symmetry between cessation of representation statements and the decision to cease representation in the deauthorization context. Member Fox added: "Because there is no Section 7 right to compel a particular union to represent employees, there is no need to specify stringent conditions that a union must satisfy before telling unit employees that it will not represent them if the unit does not assure continuing financial support for the representation."

Turning to the instant case, the majority dismissed the complaint, finding that the Respondent neither violated the Act nor engaged in conduct that warrants setting aside a deauthorization election by (1) telling employees that if it lost the election by a decisive margin it would consider disclaiming recognition and that this would leave the employees unrepresented and would void the collective-bargaining agreement, and (2) telling employees in the absence of the contract the Employer might not give them the next scheduled wage increase and would be free to fire employees without good cause.

Members Hurtgen and Brame would adhere to Pinebrook and find the Respondent's conduct here to be unlawful and objectionable. They wrote: "If a union threatens to abandon representation of employees, in reprisal for their deauthorization of union-security, we believe that the threat is unlawful and objectionable. . . . Our colleagues start with the proposition that a union can disclaim representation of employees. They then leap to the conclusion that a union can threaten to do so. We agree with the first proposition. However, the second proposition is a non-sequitur, and we disagree with it. . . . We would treat a statement about cessation of representation in the same way as the law treats statements about plant closure."

Charge filed by Efrain Jimenz, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Chicago on March 11, 1998. Adm. Law Judge William G. Kocol issued his decision May 19, 1998.

Bridon Cordage, Inc. (18-CA-13178, et al.; 329 NLRB No. 35) Albert Lea, MN Sept. 29, 1999. Unlike the administrative law judge who dismissed the allegation, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to notify the Steelworkers of a May 23, 1994 group layoff and affording the Union an opportunity to bargain over the layoff and its effects as a direct result of its nonbargainable decision to reduce inventory. The Board found that the Respondent was not required to bargain with the Union over its decision to reduce inventory, which resulted in a series of four layoffs, because that decision was made prior to the Union's victory in a Board election. The first three layoffs were announced before the Board election, but the fourth layoff was announced May 9, 1994, 3 days after the Union's certification. The Board found that the fourth layoff on May 23 was a mandatory subject of bargaining as an effect of the decision to reduce inventory. See Fast Food Merchandisers, 291 NLRB 897, 900 (1988); and Litton Business Systems, 286 NLRB 817, 820 (1987), enfd. in pertinent part 893 F.2d 1128 (9th Cir. 1990), reversed in part on other grounds 501 U.S. 190 (1991). [HTML] [PDF]

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Minneapolis, Sept. 5-6, 1995. Adm. Law Judge William J. Pannier issued his decision Feb. 29, 1996.

Electrical Workers IBEW Local 3 (Teknion, Inc.) (29-CC-1267; 329 NLRB No. 34) Flushing, NY Sept. 30, 1999. Affirming the administrative law judge, the Board held that the Respondent Union violated Section 8(b)(4)(ii)(B) of the Act by threatening James G. Kennedy & Company, and PEM, Inc., that its members would not install Teknion, Inc.'s workstations, in order to cause Kennedy and PEM to pressure Securities Industry Automation Corp. to cease using, selling, handling, transporting, or otherwise dealing in the products of, and to cease doing business with Teknion. The Board, in affirming the judge's recommended broad remedial order, relied particularly on the fact that in July 1996, a little more than 2 years ago, the Respondent consented to entry of an order by the Second Circuit Court of Appeals requiring the Respondent to comply with its obligations under prior outstanding court judgments and not to further violate Section 8(b)(4) of the Act. The violation of Section 8(b)(4)(ii)(B) in the instant case sufficiently demonstrates that the Respondent has a proclivity for violating the Act, the Board said. [HTML] [PDF]

Charge filed by Teknion, Inc.; complaint alleged violation of Section 8(b)(4)(ii)(B). Hearing at Brooklyn on May 11, 1999. Adm. Law Judge Michael A. Marcionese issued his decision June 17, 1999.

Tinius Olsen Testing Machine Company (4-RC-19586; 329 NLRB No. 37) Willow Grove, PA Sept. 30, 1999. The Board overruled the Petitioner's (Teamsters Local 115) Objection 5 which alleges that the Employer violated Kalin Construction Co., 321 NLRB 649 (1996), by distributing employee paychecks containing raises retroactive to December 21, 1995 on the morning of an election held January 13, 1999, in an attempt to sway the election. The tally of ballots shows 20 for the Petitioner and 23 for the Intervenor (Electrical Workers UE Local 155). The Board certified the Intervenor as the exclusive representative of the Employer's production and maintenance employees. [HTML] [PDF]

Chairman Truesdale and Member Fox found that it is not clear that the inclusion of the retroactive pay constitutes a change in employees' paychecks within the meaning of Kalin. In Kalin, the Board adopted a "strict rule against changes in the paycheck process for the purpose of influencing the employees' votes in the election, during a period beginning 24 hours before the scheduled opening of the polls and ending with the closing of the polls." Id. at 652. Even viewing the inclusion of the retroactive pay as a change encompassed by Kalin, Chairman Truesdale and Member Fox found that the Employer established a legitimate business reason for making the change (the collective-bargaining agreement providing for the retroactive increase was ratified by employees on about January 7). Thus, they held that by granting the wage increase with retroactive pay in the next regular paycheck, the Employer honored its collective-bargaining agreement with the Intervenor and respected the rule set out in RCA del Caribe, Inc., 262 NLRB 963 (1982).

Member Hurtgen, concurring in the result, does not agree with his colleagues' Kalin analysis. As stated in his dissent in United Cerebral Palsy Association of Niagara County, Inc., 327 NLRB No. 14 (1998), he does not "subscribe to the holding in Kalin that any of four enumerated changes in the payroll process within 24 hours of the election is per se objectionable, absent an employer justification for the action which is unrelated to the election." Instead of presuming per se employer misconduct (and placing the consequent burden on the employer of disproving an objectionable act, Member Hurtgen would consider all of the facts and circumstances surrounding an employer's changes to the paycheck process shortly before an election, including but not limited to, employer motive, justification, and the circumstances of the changes. Considering all of the relevant factors, he found that the Employer's election-day grant of a wage increase did not interfere with the election.

St. Elizabeth Manor, Inc. (14-RM-700; 329 NLRB No. 36) Florissant, MO Sept. 30, 1999. By a 3 to 2 decision, the Board held that once a successor employer's obligation to recognize an incumbent union has attached (where the successor has not adopted the predecessor's contract), the union is entitled to a reasonable period of time for bargaining without challenge to its majority status through a decertification effort, an employer petition, or a rival petition, and therefore overruled Southern Moldings, Inc., 219 NLRB 119 (1975), where the Board held that, absent the successor's adopting the existing contract, the union has only a rebuttable presumption of continuing majority status. The majority (Chairman Truesdale and Members Fox and Liebman) said it saw "no reason to distinguish between those situations in which the predecessor had no current contract with the incumbent at the time of the successorship and one in which there was an existing contract which the successor chose not to assume," adding: [HTML] [PDF]

"Understandably, the historical use of the term 'recognition bar' has come to mean situations arising from voluntary recognition based on an employer's good faith acceptance of a union's demonstrated showing of majority status. In that context, an employer's recognition is voluntary since it may refuse to offer recognition and instead demand that an election be held. By contrast, in the successorship situation, the employer's recognition is voluntary only to the extent that it chooses to hire its predecessor's employees represented by the incumbent union as the majority of its work force. Once an employer has made that choice, the incumbent union's majority status is presumed by operation of law. Thus, the use of the term 'recognition bar' may not be the best choice of terms in this context. To avoid confusion, henceforth we will employ the term 'successor bar' to describe the preclusion of petitions challenging the union's majority status for a reasonable period after a successor employer's obligation to recognize an incumbent unit is triggered."

The majority reversed the Regional Director's Decision and Direction of Election, to the extent that it is based on Southern Moldings and found that the successor Employer-Petitioner's voluntary recognition of Service Employees Local 50 did not constitute a bar to the instant petition because under extant law, recognition bar applies only in initial organizing situations, and not where recognition has been accorded by a successor employer. The case was remanded to the Regional Director to determine whether a reasonable period for bargaining had elapsed at the time the instant petition was filed and to take further appropriate action.

Dissenting Members Hurtgen and Brame would continue to follow Southern Moldings and Harley-Davidson Transportation Co., 273 NLRB 1531 (1985), and would direct the opening and counting of the impounded election ballots. They wrote: " Unlike our colleagues, we do not believe that an otherwise timely petition challenging the majority status of an incumbent union following its recognition by a successor employer should be barred, nor do we think such an employer should be precluded from withdrawing recognition before a contract is agreed upon, if based on the traditional test for withdrawal, it appears that a majority of the successor's employee complement no longer support the incumbent union. Of paramount importance to us is the employees' exercise of their Section 7 right to select a union representative of their own choice or to have no union represent them at all. Imposition of a 'successor bar' defeats this goal and runs counter to the purposes and policies of the Act."

A. Russo & Sons, Inc. (1-RC-20508; 329 NLRB No. 43) Watertown, MA Sept. 30, 1999. Addressing an issue specifically left open in Esco Corp., 298 NLRB 837, 841 fn. 7 (1990), the Board held (3-2) that A. Harris & Co., 116 NLRB 1628 (1956), does not apply where an employer operates on both a wholesale and retail basis and that it will instead apply the traditional community of interest test in deciding whether a warehouse unit in a combined retail and wholesale operation is appropriate. Chairman Truesdale and Members Fox and Liebman thus overruled Napa Columbus Parts Co., 269 NLRB 1052 (1984). Applying the traditional community of interest test, the majority also affirmed the Regional Director's conclusion that the petitioned-for warehouse unit, consisting of the Employer's truckdrivers, order pickers, and processors constitute an appropriate unit for bargaining. The majority wrote: [HTML] [PDF]

"Our dissenting colleagues rely on the fact that Napa has been on the books for 15 years and is therefore established precedent. Contrary to the dissents, we view Napa as an aberration. Napa failed to mention that A. Harris was designed to apply only to retail store warehouse operations, let alone to explain why it should apply to mixed wholesale/retail operations. During the 15 years from the Napa decision to the present, no other published Board case has applied A. Harris to mixed wholesale/retail operations. We therefore believe, contrary to our dissenting colleagues, that compelling policy considerations support the overruling of Napa."

Member Hurtgen, dissenting, would uphold extant law, find the unit to be inappropriate, and dismiss the petition filed by Teamsters Local 829. He wrote: "I do not believe that the A. Harris-Napa analysis is inconsistent with a community-of-interest approach. Rather, that analysis takes into account community-of-interest facts, and the character of a retail/wholesale operation. Based on these factors, A. Harris/Napa formulates general rules for guidance. I would apply those rules here."

Dissenting Member Brame, would reverse the Regional Director and find the petitioned-for unit to be inappropriate. He would adhere to the Board's Napa decision and include the store clerk, cashier, bagger, and florist classifications in the unit as well. Member Brame explained: "Indeed, unlike the majority, I see no tension between the application of the A. Harris criteria to employers like Napa and the Board's community of interest test. . . . Furthermore, contrary to the majority, I think that the same storewide unit result would be reached if we were to apply the community-of-interest approach to the instant facts. The Employer's operations are at one location; there they are functionally integrated and interdependent. The retail store employees and warehouse employees share some supervision, have similar working conditions. This factual scenario fully supports the larger employee unit."

In A. Harris, the Board set forth a restrictive test, consistent with its policy at that time of favoring wall-to-wall units in the retail industry, that warehouse units may be appropriate in a retail operation if certain criteria are met. Applying this test, the Board concluded that the establishment of a separate unit of warehouse employees was appropriate. Subsequently, the Board applied the A. Harris criteria, to a combined wholesale and retail operation (Napa Columbus Parts) and a wholesale operation (Roskin Bros. Inc., 274 NLRB 413 (1985)), finding the petitioned-for units to be inappropriate.

Machinists District Lodge 160 and Local Lodge 79 (American National Can Co.) (19-CB-7970; 329 NLRB No. 41) Kent, WA Sept. 30, 1999. Chairman Truesdale and Member Hurtgen found unlawful that portion of the Respondents' Beck procedure that provides that objections be filed during a 1-month period, solely with respect to the failure to grant employees who resign their union membership a separate window period following resignation in which to file a Beck objection, and that the Respondents violated their duty of fair representation by requiring unit members who register their objections during the October window period to wait until January to receive the reduction in their dues. Accordingly, the Respondents violated Section 8(b)(1)(A) of the Act by maintaining and applying that portion of their Beck procedure which prevents unit employees who have resigned from the Union from filing Beck objections within a reasonable time after their resignation, and by maintaining and applying that portion of their Beck procedure which provides that dues reductions will not become effective, for unit members who file Beck objections during the 1-month October window period, until the following January 1. [HTML] [PDF]

Member Liebman, dissenting in part, would dismiss the complaint allegation that the Respondents violated the Act by maintaining and applying to newly resigned employees a 1-month window period for the invocation of their Beck rights.

Charge filed by Keith Zurn and Majorie Zurn, individuals; complaint alleged violation of Section 8(b)(1)(A). Parties waived their right to a hearing before an administrative law judge.

Naperville Ready Mix, Inc.; et al. (13-CA-31031, et al.; 329 NLRB No. 19) Naperville, IL Sept. 21, 1999. The Board found that Naperville Ready Mix, Inc., T&W Trucking, Inc., and Wehrli Equipment Co., as affiliated business enterprises, comprise a single employer and violated Section 8(a)(5), (3), and (1) of the Act; and that a strike by unit employees which began on June 17, 1992, was an unfair labor practice strike by virture of the Respondent's unlawful conduct. Specifically, the Respondent violated the Act by transferring out unit work to owner-drivers without bargaining in good faith to impasse with Teamsters Local 673 and discharging unit employees and replacing them with owner-drivers, refusing to provide the Union with information it requested concerning the transfer of ownership of trucks formerly driven by unit employees, dealing directly with employees concerning the continuation of their employment on a non-union basis, threatening unit employees with the loss of their jobs and encouraging striking employees to abandon their full support of the Union, and refusing to reinstate unfair labor practice strikers. [HTML] [PDF]

Charges filed by Teamsters Local 673; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Chicago, June 27-July 12, 1994. Adm. Law Judge Robert T. Wallace issued his decision Oct. 13, 1995.

CCY New Worktech, Inc., et al. (29-CA-22260, 22469; 329 NLRB No. 24) Brooklyn, NY Sept. 21, 1999. The Board affirmed the administrative law judge's decision granting the General Counsel's motion for summary judgment against Respondents CCY New Worktech, KAM FAI Fashion, Inc., and XMG Fashions, Inc., and finding that KAM FAI, CCY, and XMG are affiliated businesses and constitute a single employer and violated the Act by discharging and failing to offer to reinstate five employees because of their protected concerted activities. The Respondents did not file answers to the complaint or appear at the hearing. CCY and KAM FAI did not file exceptions to the judge's decision. The Board found XMG's exceptions to be without merit. In its exceptions, XMG's president asserts that neither he nor his employees read English, that he did not receive any notices or letters informing him that XMG was the subject of a complaint made by employees of the other Respondents, and that none of his employees recall receiving any mail from the Board. [HTML] [PDF]

Charges filed by Qui F. Zhu and Zhen Lui Li, individuals; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn on June 22, 1999. Adm. Law Judge Raymond P. Green issued his decision July 12, 1999.

Waste Management of Palm Beach (12-CA-19010; 329 NLRB No. 20) Boynton Beach, FL Sept. 22, 1999. Chairman Truesdale and Member Liebman, emphasizing the timing of the announcement with respect to the representation election, agreed with the administrative law judge that the Respondent violated the Act by announcing, at a company sponsored dinner party held on October 14, 1997, 3 days prior to the election, that as of January 1, 1998, there would be a corporatewide increase in its matching contribution to the 40l(k) plan. They reversed his finding that the holding of the dinner party was an independent violation of Section 8(a)(1). Affirming the judge, Chairman Truesdale and Member Liebman also held that the Respondent unlawfully promulgated, maintained, and threatened to enforce by removal from the property an invalid no-solicitation/no-distribution rule; and unlawfully solicited employee grievances and impliedly promised to remedy them. When the Respondent asked employees at employer-held meetings during the organizing campaign to identify their concerns, they complained about monetary penalties imposed on drivers involved in on-the-job traffic accidents at the Palm Beach location but not at other facilities. The judge found that the Respondent violated Section 8(a)(1) by promising to refund the penalties and violated Section 8(a)(3) by the actual refunding of them. [HTML] [PDF]

Member Hurtgen, dissenting in part, found that the Respondent did not violate the Act by announcing to employees a corporatewide increase in matching contributions to its 401(k) plan because the decision and grant of the benefit occurred in July 1997 before the petition was filed; or by promising to refund and the actual refund of monetary penalties because the penalties were contrary to a practice at the Respondent's facilities and in violation of a policy that was set prior to the union campaign.

Charge filed by Teamsters Local 390; complaint alleged violation of Section 8(a)(1) and (3). Hearing held June 15-16, 1998. Adm. Law Judge Lawrence W. Cullen issued his decision July 13, 1998.

International Ship Repair & Marine Services (12-CA-18879, 12-RC-8105; 329 NLRB No. 27) Tampa, FL Sept. 23, 1999. Affirming the decision of an administrative law judge, the Board held that the Respondent violated the Act and interfered with an election held on June 30, 1997 by suspending, laying off, refusing to recall, and assigning Arthur Davenport more onerous working conditions because of his union activities; threatening employees with plant closure, relocation, and unspecified reprisals if they selected the Tampa Metal Trades Council to represent them; and warning employees that it would be futile to chose to be represented by the Union. The Board sustained the Union's election objections that track the unfair labor practices found, set aside the election (the Union lost 103-50), and directed that the Regional Director conduct a second election among the production and maintenance employees. The Board affirmed the judge's dismissal of two additional union objections alleging that the Respondent interfered with the election by (1) assisting employees who campaigned against the Union, and (2) promising and granting benefits in order to discourage employees from voting for the Union. [HTML] [PDF]

Charge filed by Tampa Metal Trades Council; complaint alleged violation of Section 8(a)(1). Hearing held on eight dates from March 5 through June 15, 1998. Adm. Law Judge David L. Evans issued his decision Feb. 17, 1999.

OXY USA, Inc. (17-CA-17689; 329 NLRB No. 26) State of Kansas Sept. 23, 1999. The Board, in finding that the Respondent's bargaining proposal is not unlawful under Section 302 of the Act, deferred to the opinion of the U.S. Department of Justice, which has the responsibility for enforcing that Section, and dismissed complaint allegations that the Respondent violated Section 8(a)(1) and (5) by insisting to impasse, and as a condition to reaching any collective-bargaining agreement, that the Oil, Chemical, and Atomic Workers International agree to serve as the sponsor and administrator of the health care plan of bargaining unit employees. The Board in 1996 approved the parties' stipulation of facts and motion to transfer the case directly to the Board for a decision and order. Subsequently, it solicited the views of the U.S. Department of Labor and the Criminal Division of the U.S. Department of Justice. Both agencies submitted comments. [HTML] [PDF]

The Respondent (OXY) is engaged in the exploration and production of petroleum from various sites throughout Kansas and other locations in the U.S. The parties' most recent collective-bargaining agreement covering the Respondent's Kansas employees expired on January 31, 1994 and negotiations for a new contract began about January 11 and 12, 1994. On October 21, 1994, the parties agreed that they were at impasse on several issues, including who would serve as sponsor of the health insurance plan. The Union requested that the Respondent continue to serve as sponsor of the health care plan. The Respondent reiterated that it would prefer not to continue in that role given the time, expense, and administrative burden involved. About October 26, 1994, the Respondent implemented certain terms of its final offer. It did not implement any change with respect to health care and has remained the sponsor of the existing health care plan provided by Aetna.

Charge filed by the Oil, Chemical and Atomic Workers International; complaint alleged violation of Section 8(a)(1) and (5). Parties waived their right to a hearing before an administrative law judge.

Beverly Enterprises-Massachusetts, Inc., d/b/a Cape Cod Nursing & Retirement Home (1-RC-19926; 329 NLRB No. 28) Buzzards Bay, MA Sept. 24, 1999. The Board granted the Employer's request for review of the Regional Director's supplemental decision with regard to the role of the Employer's licensed practical nurses (LPNs) in evaluating employees and concluded, contrary to the Regional Director, that the LPNs are statutory supervisors within the meaning of Section 2(11) of the Act because they exercise independent judgment in completing evaluations of the Employer's nursing assistants (NAs) on an annual basis, and the evaluations are the basis on which the Employer awards specific merit increases. The Board denied the Employer's request for review with respect to the LPNs who act as "float" nurses, as the record established that they do not complete evaluations of NAs. Thus, it found that they are not supervisors in this or any other respect. Member Brame would also grant review of the unit placement issues involving the LPNs who act as "float" nurses. The Board remanded the case to the Regional Director for further appropriate action. [HTML] [PDF]

Metalsmith Recycling Co. d/b/a Martin Bush Iron & Metal and its alter ego Second Street Recycling Co. (18-CA-13396; 329 NLRB No. 15) Minneapolis, MN Sept. 10, 1999. The Board affirmed the administrative law judge's conclusions that Second Street Recycling is an alter ego of Metalsmith Recycling Co. and that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to continue to recognize Electrical Workers UE Local 1139 and honor Metalsmith's collective-bargaining agreement with the Union. However, unlike the judge who found no antiunion motivation, the Board held that the creation of Second Street, in addition to having an objective of permitting Smith to escape further criminal liability for hazardous waste violations, also had an objective of escaping further dealings with the Union. In finding no merit to an Employer contention that the judge's findings were precluded by the rejection of the collective-bargaining agreement in bankruptcy proceedings, the Board said: "Rejection of a collective-bargaining agreement under the Bankruptcy Code constitutes a breach of the agreement. It does not invalidiate or otherwise extinguish the agreement." [HTML] [PDF]

Charge filed by Electrical Workers UE Local 1139; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Minneapolis, June 22-23, 1995. Adm. Law Judge William J. Pannier III issued his decision Jan. 23, 1996.

Maximillion Cruises, Inc. (29-CA-22509; 329 NLRB No. 16) Fort Lauderdale, FL Sept. 14, 1999. The administrative law judge found, with Board approval, that the Respondent refused to bargain with the Seafarers International concerning the effects on unit employees of the Respondent's decision to close its Brooklyn, New York facility in violation of Section 8(a)(5) and (1) of the Act. The Board modified the judge's Transmarine remedy language to conform with changes it adopted in Melody Toyota, 325 NLRB No. 158 (1998). [HTML] [PDF]

Charge filed by the Seafarers International; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on May 5, 1999. Adm. Law Judge Howard Edelman issued his decision July 2, 1999.

Painters District Council 9 (29-CC-1257; 329 NLRB No. 17) New York and Islip, NY Sept. 16, 1999. Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing at We're Associates, Inc.'s Huntington, New York facility at a time when primary employers Gary & George Bronze Painting and Vincent Bonomo Painting Corp. were not working at the facility and with picket signs that did not disclose the employer with whom Respondent had a primary dispute; and by picketing at gates reserved for neutral employers, with an object of forcing or requiring We're to cease doing business with Bronze and Bonomo. [HTML] [PDF]

Charge filed by We're Associates, Inc.; complaint alleged violation of Section 8(b)(4)(i) and (ii)(B). Hearing held October 28, 1998. Adm. Law Judge Steven Fish issued his decision Feb. 22, 1999.

Steelworkers and its Local 4800 (George E. Failing Co.) (17-CB-3803, 4080; 329 NLRB No. 18) Pittsburgh, PA and Enid, OK Sept. 17, 1999. Chairman Truesdale and Member Hurtgen held that the Respondents, by maintaining that portion of their Beck procedure which prevents employees who have resigned from the Union from filing a Beck objection within a reasonable period after their union resignation, violated Section 8(b)(1)(A) of the Act. Citing California Saw & Knife Works, 320 NLRB 224 (1995), they found that the Respondent's Beck procedure unlawfully fails to provide a separate window period during which employees who resign their union membership may file objections. See Polymark Corp., 329 NLRB No. 7 (1999). Chairman Truesdale and Member Hurtgen dismissed the remaining complaint allegations that the Respondents failed to provide notice of Beck rights to two groups of nonmember employees-employees when they resign their union membership and employees when they are rehired by the Employer, and that the Respondents violated Section 8(b)(2) of the Act by attempting to cause and causing the Employer to discriminate against its employees in violation of Section 8(a)(3). [HTML] [PDF]

Member Liebman, dissenting in part, would dismiss the allegation that the window period is unlawful because it does not grant employees who resign their union membership a separate, new window period following resignation in which to file a Beck objection. She found that "the requirement that Beck objections be filed during a window period does not unreasonably restrict the right of employees to file Beck objections, and in no sense impairs their right to resign union membership." See the dissent of Members Fox and Liebman in Polymark.

Charges filed by Donald F. Hughes; complaint alleged violation of Section 8(b)(1)(A) and 8(b)(2). Parties waived their right to a hearing before an administrative law judge.

Wire Products Mfg. Corp. (30-CA-13239, et al.; 329 NLRB No. 23) Merrill, WI Sept. 17, 1999. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by encouraging employees on February 5 and 27, 1997, to join Machinists Local 200 for the purpose of voting against a proposed collective-bargaining agreement at a contract ratification meeting and then to revoke their union membership after voting. In so doing, the Board found it unnecessary to rely on the judge's reference to previous unfair labor practices committed by the Respondent as evidence of its willingness to engage in economic reprisals against employees who support the Union, and instead found it sufficient to consider the reasonable tendency of the Respondent's statements to interfere with the unit employees' protected right to engage in collective bargaining through their exclusive union representative. The Board reversed the judge and dismissed the 8(a)(5) complaint allegation that the Respondent unilaterally posted a job vacancy in a newly created trainer classification before bargaining with the Union over the wage rate to be paid employees in the new classification. [HTML] [PDF]

Charges filed by Machinists Local 200; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Wausau, July 8-10 and Aug. 5, 1997. Adm. Law Judge Leonard M. Wagman issued his decision April 30, 1998.

Mariner Post-Acute Network d/b/a Warren Manor Nursing Home (15-RC-8178; 329 NLRB No. 14) Demopolis, AL Aug. 31, 1999. In a Decision and Direction of Second Election, the Board adopted the hearing officer's recommendation that a March 10, 1999 election (44 votes for and 62 against the Union) be set aside on the basis of an Employer statement in a letter to employees that suggested they might lose their jobs in the event of a strike. The Board stated the Employer's letter failed to adequately explain the consequences of an economic strike and the rights of economic strikers under Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). [HTML] [PDF]

Sasco Electric, d/b/a Sasco Valley Electric (32-CA-16668; 329 NLRB No. 8) Menlo Park, CA Sept. 3, 1999. Affirming an administrative law judge, the Board dismissed a complaint alleging the Respondent had violated Section 8(a)(4) and (1) of the Act by refusing to hire employee-applicant Sweeting. The judge had concluded Sweeting was not hired because of objectionable behavior he had engaged in at a previous job and that his name had been placed on the "not eligible for rehire list" for good cause. [HTML] [PDF]

Charge filed by Joseph Sweeting, an individual; complaint alleged violation of Section 8(a)(4) and (1). Hearing at Oakland on March 9, 1999. Adm. Law Judge Joan Wieder issued her decision on May 18, 1999.

Tres Estrellas de Oro (21-CA-30443, et al.; 329 NLRB No. 3) Huntington Park, CA Sept. 3, 1999. A Board majority of Chairman Truesdale and Member Liebman agreed with the administrative law judge's finding that the Respondent's agent, Victor Guzman, unlawfully created the impression of surveillance of employee Juan Monroy's union activities. Concurring in part and dissenting in part, Member Brame thought the General Counsel failed to establish that the Respondent created the impression of surveillance and would dismiss that allegation. [HTML] [PDF]

Charges filed by Teamsters Local 495; complaint alleged violation of Section 8(a)(1). Hearing at Los Angeles, Feb. 24-28, 1997. Adm. Law Judge Mary Miller Cracraft issued her decision May 15, 1997.

Network Ambulance Services, Inc. (4-RC-19511; 329 NLRB No. 13) Easton, PA Aug. 31, 1999. In a Decision and Certification of Results of Election, the Board found lawful the Employer's implementation of a new benefit (two floating holidays a year) during the critical election period, and concluded that a certification should be issued in an election the Union lost (9 for, 25 against, with no challenges). Citing Kauai Coconut Beach Resort, 317 NLRB 996, 997 (1995), the hearing officer had recommended that the election be set aside since the Employer offered no reason why it could not have deferred the new benefit until after the election. The Board noted that the benefit was implemented at the direction of the Employer's parent company for the legitimate business reason of equalizing benefits. [HTML] [PDF]

President Riverboat Casinos of Missouri, Inc. (14-CA-23814; 329 NLRB No. 10) St. Louis, MO Sept. 7, 1999. Affirming an administrative law judge, the Board majority of Members Fox and Liebman found a statement by Beverage Manager Faust to an inquiring employee during an election campaign that wages might be reduced as a result of unionization to be an implied threat in violation of the Act. The majority also found unlawful, as did the judge, an "interrogation" by Executive Sous Chef Althanus of another employee about unions. Dissenting Member Hurtgen would find the discussions were not coercive and contained no overt threat. [HTML] [PDF]

Charge filed by Hotel & Restaurant Employees Local 74; complaint alleged violation of Section 8(a)(1). Hearing held at St. Louis on May 7 and 8, 1996. Adm. Law Judge Michael O. Miller issued his decision on Aug. 23, 1996.

Georgia-Pacific Corporation (13-CA-34827; 329 NLRB No. 5) University Park, IL Sept. 7, 1999. The Board affirmed the administrative law judge's conclusion that under Harte & Co., 278 NLRB 947 (1986), the Respondent unlawfully repudiated its collective-bargaining agreement and failed to recognize and bargain with the Union after unilaterally transferring operations at two locations (Elgin and Harvey) to a facility at University Park, Illinois. The Respondent's pertinent operations at University Park were substantially the same as its operations at Elgin and Harvey and the collective-bargaining agreement should have remained in effect, the judge determined. [HTML] [PDF]

Charge filed by Teamsters Local 786; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago on Nov. 5 and 6, 1997. Adm. Law Judge John H. West issued his decision on Feb. 26, 1998.

Noveau Elevator Industries, Inc. (29-CA-21999, et al.; 329 NLRB No. 11) Brooklyn, NY Sept. 9, 1999. The Board adopted an administrative law judge's recommended order dismissing a complaint by the union petitioner (Elevator Constructors Local 1) that the employer Respondents had unlawfully threatened and coerced employees about not voting for the Petitioner in elections for three separate bargaining units, which a competing union (Electrical Workers IBEW Local 3) subsequently won. Evidence showed the Respondents were interested in maintaining a collective-bargaining relationship with IBEW Local 3, the incumbent union. [HTML] [PDF]

Charges filed by Elevator Constructors Local 1; complaint alleged violation of Section 8(a)(1). Hearing held at New York, March 2-3, 1999. Adm. Law Judge Raymond P. Green issued his decision May 4, 1999.

Regional Home Care d/b/a North Atlantic Medical Services (1-CA-32995(1-2), et al., 1-RC-20292; 329 NLRB No. 6) Leominster, MA Sept. 9, 1999. Chairman Truesdale and Member Liebman affirmed the findings of the administrative law judge and granted a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 595 (1969). The judge wrote: "Respondent's unfair labor practices were committed by the top two officials of the Respondent, touched all of the employees in a relatively small unit, and, since they involved discriminatory terminations and threats of reprisal, are the types of hallmark violations that cannot easily be cured and require a bargaining order. Particularly destructive was Respondent's unlawful unit packing scheme that showed its contempt for free elections. Indeed, the unfair labor practices continued well after the election. Respondent fired the top union adherent in the midst of this case in violation of Section 8(a)(3), (4), and (1) of the Act." [HTML] [PDF]

On another issue, Chairman Truesdale and Member Liebman found, in agreement with the judge and contrary to their dissenting colleague, that the Respondent violated Section 8(a)(3) when it removed union supporter Gary Roy from light duty work and then discharged him, and laid off union supporter Marc Kirouac. They sustained the challenges to 5 ballots, overruled the challenges to 3 ballots, including those of Roy and Kirouac, and directed that the Regional Director open and count the 3 ballots and issue a revised tally of ballots. If the revised tally shows that the Union has received a majority of the valid ballots cast, the Regional Director shall issue a certification of representative. Otherwise, the petition will be dismissed and the proceedings in Case 1-RC-20292 will be vacated.

Member Hurtgen, dissenting in part, would not find that the Respondent violated Section 8(a)(3) and (1) either when it removed Roy from light duty work and later terminated him or when it temporarily laid off Kirouac because the General Counsel failed to prove that the Respondent had knowledge of their union sympathies. Even if the General Counsel proved knowledge and the other elements of a prima facie case, the Respondent rebutted that prima facie case by showing that, in any event, it would have terminated Roy and laid off Kirouac for valid business reasons, Member Hurtgen said. He would not resolve the Gissel issue now, noting that the election results were 5 to 2, in favor of the Union, and there is a likelihood that the Union has won the election and will be certified.

Charges filed by Teamsters Local 170; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Boston, May 28-21, June 4-7 and 17-21, 1996 and Feb. 12-13, 1997. Adm. Law Judge Judith Ann Dowd issued her decision March 17, 1998.

Becker Group, Inc., Urethane Div. (7-CA-39059; 329 NLRB No. 9) Sterling Heights, MI Sept. 9, 1999. Chairman Truesdale and Member Liebman, with Member Hurtgen dissenting, affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging open and active union supporters Carl Jennings and Annie O'Neal on October 1, 1996, the eve of the beginning of negotiations for an initial contract. The Respondent's employees had elected Jennings to be a member of the Union's bargaining committee and O'Neal to be a steward. [HTML] [PDF]

Turning to other alleged violations, the Board agreed with the judge that the Respondent violated Section 8(a)(1) by maintaining an overly broad no-solicitation rule and when its agent Mark Smith stated to employees that there is no union representation at its Urethane Division facility; violated Section 8(a)(3) and (1) by issuing disciplinary actions to and discharging bargaining committee member Annette Cooper; and violated Section 8(a)(5) by laying off unit employees in July 1996 without providing the Union with notice and the opportunity to bargain over the layoffs.

Charge filed by Auto Workers; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Detroit, July 14-16, 1997. Adm. Law Judge Wallace H. Nations issued his decision Jan. 15, 1998.

Naomi Knitting Plant, a Div. of Andrex Industries Corp. (11-CA-15771, 16376, 11-RC-5954; 328 NLRB No. 180) Zebulon, NC Aug. 30. 1999. Chairman Truesdale and Member Liebman found, in addition to the administrative law judge's conclusions, that the Respondent violated Section 8(a)(1) of the Act through Frank Carter's and Barbara Alson's interrogation of employee Debrorah Baines, Carter's interrogation of the members of the "Design Team," and Supervisor Renate Hord's solicitation of grievances from employees; and violated Section 8(a)(3) and (1) by discharging Mary K. Harris for engaging in protected activity. The Chairman and Member Liebman found that the allegations raised in the Union's Objections 2, 3, and 7 to the election held in Case 11-RC-5954, and other objections coextensive with the additional unfair labor practices are sufficient to warrant a finding that the Respondent interfered with the conduct of the election and that a second election should be held. [HTML] [PDF]

Member Brame, dissenting in part, would not find the additional Section 8(a)(1) violations. He agreed with the judge that the interactions between the Respondent's agents and the employees would not reasonably tend to interfere with their Section 7 rights.

No exceptions were filed to the judge's findings that the Respondent violated Section 8(a)(1) by granting employees benefits to discourage union support, threatening to withhold scheduled pay raises to discourage employees from union activity, and threatening employees with a loss of benefits if they selected the Union, engaged in union activity, or filed charges with the Board; violated Section 8(a)(2) and (1) by dominating or interfering with the formation or operation of a labor organization called the Design Team; and that a Gissel bargaining order is not appropriate in this case. In the absence of exceptions, the Board adopted pro forma, the judge's recommendation that Objections 2, 3, and 7, concerning the threat of a loss of benefits, the granting of benefits, and a threat to withhold benefits be sustained, and that a new election be held.

Charges filed by Ladies' Garment Workers International; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing at Raleigh for 7 days between March 13 and May 23, 1995. Adm. Law Judge Richard J. Linton issued his decision Jan. 25, 1996.

Atlas Concrete Construction Co. (9-CA-35198-2, 35410; 329 NLRB No. 1) Louisville, KY Sept. 1, 1999. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to execute and abide by a collective-bargaining agreement reached with Teamsters Local 89 on August 1, 1997, withdrawing recognition of the Union, and failing to provide information requested by the Union. [HTML] [PDF]

Charges filed by Teamsters Local 89; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Louisville on April 7, 1998. Adm. Law Judge Karl H. Buschmann issued his decision July 22, 1998.

State Materials, Inc. (8-CA-28582, 8-RC-15431; 328 NLRB No. 184) Girard, OH Aug. 31, 1999. The Board found, in affirming the administrative law judge's recommendation, based on NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), that a bargaining order is warranted in this case, that this case clearly falls within the second Gissel category comprising "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." Id. at 614. The Board wrote: [HTML] [PDF]

"We stress that beginning immediately after the organizing campaign commenced, the Respondent, through its manager and co-owner, Tony Bucci, committed numerous and pervasive unfair labor practices, including such 'hallmark' violations as discharging five employees for their union or protected concerted activities and threatening virtually all the employees with discharge and closure of the business if they supported the Union. The discharges and threats are highly coercive violations directed by a top management official against employees working in a relatively small unit of only approximately 33 employees. The threats of job loss followed by the discriminatory discharges demonstrated to the unit employees the Respondent's willingness to carry out its threats and brought home to employees that the penalty for union support would be severe. As the judge correctly noted, these are among the most flagrant of unfair labor practices that can be committed during an organizing campaign and are of a type that are likely to have a lasting inhibiting effect that renders unlikely the holding of a fair election."

The Board found it unnecessary to pass on the judge's finding that the unfair labor practices fall within Gissel category one--those so outrageous and pervasive that a bargaining order might be justified even without "inquiry into majority status on the basis of cards or otherwise." Id. at 613.

Charge filed by Teamsters Local 377; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Cleveland, April 8-11, 1997. Adm. Law Judge Bruce D. Rosenstein issued his decision June 17, 1997.

Laborers' Local 210 (3-CD-628-1, 628-2; 328 NLRB No. 182) Buffalo, NY Aug. 31, 1999. Relying on the factors of the collective-bargaining agreements, employer preference and past practice, area practice, relative skills, and economy and efficiency of operations, the Board decided that the employees of Concrete Cutting & Breaking, Inc. represented by Laborers Local 210, rather than those represented by Operating Engineers Local 17, are entitled to operate the self-propelled concrete slab or flat saws, self-propelled concrete curb cutting saws, and self-propelled concrete wall cutting saws used by the Employer on various jobsites in New York State. [HTML] [PDF]

Polymark Corp. and Electrical Workers IUE and its Local 795 (9-CA-28091, 9-CB-7783-1, 7783-2; 329 NLRB No. 7) Cincinnati, OH Sept. 1, 1999. Citing Marquez v. Screen Actors Guild, 525 U.S. 33 (1998), the Board affirmed the administrative law judge's finding that the union-security clause in the Respondents' collective-bargaining agreement is not facially invalid; and citing California Saw & Knife, 320 NLRB 224 (1995), it affirmed the judge's finding that the Respondent Union unlawfully refused to honor Robert Mohat's attempt to file a Beck objection because it occurred outside of the window period in violation of Section 8(b)(1)(A) of the Act. The Board reversed the judge's finding that the Union violated Section 8(b)(1)(A) and (2) by failing to advise Mohat that the only condition of employment was the payment of dues and fees relating to representational purposes; and relying on Auto Workers Local 1752 (Schweizer Aircraft Corp.), 329 NLRB 528 (1995), affd. sub nom. Williams v. NLRB, 105 F.2d 787 (2d Cir. 1996), it reversed his finding that the Respondent Employer violated Section 8(a)(1), (2), and (3) by failing to honor Mohat's post-resignation attempt to revoke his dues-checkoff authorization. [HTML] [PDF]

Members Fox and Liebman, dissenting in part, would not find that the Respondent Union violated its duty of fair representation by refusing to honor Mohat's November 1990 Beck objection because it was not filed during April pursuant to the Union's established procedures. They would overrule California Saw insofar as it holds that a union may not lawfully refuse to honor Beck objections filed by employees who resign after the expiration of an annual window period, and would dismiss the complaint altogether.

In a separate concurrence, Member Hurtgen said that he agreed that the union-security clause is not unlawful on its face. However, contrary to the majority, he noted that the clause does not track the statute, i.e., it reads in terms of "member in good standing" rather than "member." But, there is no evidence of any Respondent constitution or by-law which defines "member in good standing," Member Hurtgen pointed out, adding: "If there were, and if the terms were defined in ways that go beyond the payment of dues and fees, I would consider whether the language of the union-security clause in that context was unlawful."

Member Brame concurred in part and dissented in part. While he agreed that the Union violated the Act in failing to follow Mohat's instructions respecting his dues objection promptly, it is based on a "very different reading of the law" from that of his colleagues. Member Brame would also find that the majority erred in dismissing the allegations against the Respondent Employer for failing to accept Mohat's revocation of his dues-checkoff authorization. He explained that "because cases dealing with the lawfulness of a union's window period for dues objections under Beck involve the statutory prohibition against 'restraint or coercion,' I would hold that a union must accept and give immediate effect to all dues objections from any nonmember, at the election of the nonmember rather than at the convenience of the union. In addition, I would require an employer to honor a nonmember's revocation of dues-checkoff authorization and a union to recognize this obligation on the part of an employer."

Charge filed by Robert J. Mohat, an individual; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing at Cincinnati on Dec. 11, 1991. Adm. Law Judge Karl H. Buschmann issued his decision Sept. 30, 1992.

Teamsters Local 75 (Schreiber Foods) (30-CB-3077; 329 NLRB No. 12) Green Bay, WI September 1, 1999. As in Polymark Corp., this case presents several issues regarding the Beck rights of employees subject to a contractual union security clause. The charging parties, Sherry and David Pirlott, resigned from the Union in 1989, stating they would pay for a "financial core obligation" but not for "any non-collective bargaining activity." Subsequently, they filed charges rejecting both the union's financial disclosure statements and its appeal procedures. Citing Marquez, the full Board affirmed the Administrative Law Judge's finding that the union security clause was not unlawful. It reversed the judge's finding, however, that the Union did not violate the Act by failing to notify newly-hired employees of their Beck rights, relying on California Saw and Weyerhauser which issued after the judge's decision. The Board noted on this issue that a union official testified that the union never informed any unit employees hired after May 1989 of their Beck rights prior to joining the Union. [HTML] [PDF]

A Board majority of Chairman Truesdale and Members Fox, Liebman and Hurtgen, reversed the judge's finding that the union's financial disclosure statements to the charging parties contained insufficient information. Applying California Saw, the majority said a Union is "to disclose to the objector a breakdown of its calculations by 'major categories' of expenditures, designating which expenditures it claims are chargeable or nonchargeable to objectors. The major categories must be sufficient 'to enable objectors to determine whether to challenge' a union's claim that its designated expenditures are for representational activities." In dissent, Member Brame agreed with the judge that the information provided by the Union was insufficient contended and that the Board's standard permits a union to include in its financial disclosure statements to objectors numbers that bear no "relation to reality."

The Board severed and remanded to the judge issues pertaining to the chargeability of union expenses for activities outside the bargaining unit, including organizing expenses and expenses attributable to the representation of public sector employees. It noted that this case was litigated prior to the issuance of California Saw. Dissenting Member Brame said he would find that the organizing costs in both the private and public sectors are not chargeable, as well as representational expenses for public sector units.

Charge filed by Sherry Lee Pirlott and David E. Pirlott, individuals; complaint alleged violation of 8(b)(1)(A). Hearing at Green Bay, WI on March 5, 1992. Adm. Law Judge Joel P. Biblowitz issued his decision September 4, 1992.

Amoco Chemical Co. et al. (16-CA-16278, et al.; 328 NLRB No. 174) Texas City, TX, Wood River, IL, and Yorktown, VA Aug. 18, 1999. The Board reversed the administrative law judge's dismissal of the complaint and held that the Respondents, corporate subsidiaries of Amoco Corporation, violated Section 8(a)(5) of the Act by unilaterally implementing changes affecting the health and medical insurance benefits for collective-bargaining units of employees working at facilities in Texas City, Texas, Wood River, Illinois, and Yorktown, Virginia, without the Unions' consent and during the term of the collective-bargaining agreements covering each of the units. The judge concluded that the Respondents acted lawfully in accord with reservation-of-rights language, set forth in summary plan documents describing the Amoco Medical Plan (AMP), that he found to be incorporated by reference into the parties' collective-bargaining agreements. The Board disagreed. Citing Georgia Power Co., 325 NLRB No. 59 (1998), enfd. mem. 176 F.3d 494 (11th Cir. 1999), it found that the reservation-of-language relied on by the Respondents does not meet the standard for clear and unmistakable waiver of the Unions' right to bargain about the AMP. [HTML] [PDF]

Charges filed by Oil Workers Locals 4-449, 7-776, 3-1, and 4-449; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Houston, Oct. 12-14 and Nov. 21, 1994. Adm. Law Judge Richard J. Linton issued his decision March 17, 1995.

Teamsters Local 299 (Overnite Transportation Co.) (7-CB-10490 and 7-RC-20512; 328 NLRB No. 178) Romulus, MI Aug. 19, 1999. Affirming the decision of an administrative law judge, Chairman Truesdale and Member Liebman dismissed a complaint alleging that the Respondent Union violated Section 8(b)(1)(A) of the Act and interfered with an election held on March 15, 1995 by photographing and/or videotaping employees who were entering and leaving Overnite's facility before, during, and after the polling periods. The majority certified Teamsters Local 299 as the exclusive representative of all drivers, dock workers, mechanics and switchers employed by Overnite at its Romulus, Michigan facility. In affirming the judge's decision, the majority relied on Randell Warehouse of Arizona, 328 NLRB No. 153 (1999), which issued subsequent to the judge's decision. Randell Warehouse overruled Pepsi Cola Bottling Co., 289 NLRB 736 (1988), relied on by the Employer in this case, and held that a union's photographing or videotaping of employees engaged in protected activities during an election campaign, in the absence of any express or implied threats or other coercion, is not objectionable. [HTML] [PDF]

Consistent with well-established law before Randell Warehouse and with his dissent in that case, dissenting Member Hurtgen would find that the Respondent Union engaged in objectionable conduct and violated Section 8(b)(1)(A).

Charge filed by Overnite Transportation Co.; complaint alleged violation of Section 8(b)(1)(A). Hearing held June 27-28, 1995. Adm. Law Judge Peter E. Donnelly issued his decision Oct. 5, 1995.

Plumbers Local 562 (14-CD-940, 941; 328 NLRB No. 176) St. Louis, MO Aug. 20, 1999. The Board awarded the disputed work to the employees represented by Plumbers consistent with the Employers' current assignments. As to C & R Heating & Service Co., it concluded that the Plumbers-represented employees are entitled to perform the installation of covers and backs on the tube radiators at the construction site of the Washington University School of Law in St. Louis, Missouri based on company preference and past practice, area practice, and economy and efficiency of operations. As to Corrigan Co. Mechanical Contractors, a Division of Corrigan Brothers, Inc., the Board awarded the installation of sheet metal duct sleeves at Stockhouse 19, Anheuser-Bush, St. Louis, Missouri to the Plumbers-represented employees based on collective-bargaining agreements, company preference and past practice, and economy and efficiency of operations; and it awarded the installation of the dirty side intake piping of the scruber system at the MEMC facility in O'Fallon, Missouri to the Plumbers-represented employees based on collective-bargaining agreements, company preference and past practice, area practice, relative skills, and economy and efficiency of operations. [HTML] [PDF]

U.S.A. Polymer Corp. (16-CA-17189, 17455; 328 NLRB No. 177) Houston, TX Aug. 24, 1999. The Board agreed with the administrative law judge's findings that the Respondent committed numerous, egregious violations of Section 8(a)(1), (3), and (4) of the Act and that a bargaining order should issue under the principles enunciated in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Chairman Truesdale and Member Fox found that "the Respondent's intimidating course of conduct places it among those exceptional cases warranting a bargaining order under category I of the Gissel standard, because traditional remedies cannot erase the coercive effects of the conduct, making the holding of a fair election impossible." They added: "Even if we were to find, however, that the violations were less than 'outrageous,' a bargaining order is warranted under category II standards." Member Hurtgen found it unnecessary to pass on whether a bargaining order is warranted under category I standards. He agrees with his colleagues that a bargaining order is warranted under category II standards. [HTML] [PDF]

The Respondent embarked on a series of pervasive and increasingly coercive unfair labor practices within weeks of the advent of the employees' union activity. The first union contact with employees occurred in the latter part of September 1994, and the Union began its formal organizing campaign in the early part of October 1994. By January 27, 1995, the Union had attained majority status in the bargaining unit.

The Respondent's unlawful conduct included interrogating employees about their union activity and the union activity of their fellow employees, and threatening employees with more onerous working conditions, physical harm, layoff, discharge, and other unspecified reprisals for engaging in union and protected concerted activity. Employees were unlawfully subjected to surveillance and unlawfully promised a bonus or other rewards for not supporting the Union. The interrogations were widespread, involving 7 different supervisors and at least 20 different employees. The Respondent made good on its threat of layoff or discharge by laying off 29 unit employees or 45 percent of the proposed bargaining unit between January 27 and 30, 1995. The Respondent continued to violate the Act after the General Counsel issued the complaint by penalizing employees who testified as witnesses for the General Counsel at the ensuing unfair labor practice hearing.

Charges filed by Texas-Oklahoma-Arkansas District Council-UNITE; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Houston, June 5-21 and Oct. 17-18, 1995. Adm. Law Judge Wallace H. Nations issued his decision March 25, 1996.

President Container, Inc. (22-RC-11667; 328 NLRB No. 181) Moonachie, NJ Aug. 26, 1999. Contrary to the hearing officer, the Board sustained the Intervenor's Objection 17, which alleged that the Employer's owner, Marvin Grossbard, interfered with the election held on March 5, 1999 by announcing to gathered employees on the eve of the election that he would not deal or negotiate further with the Intervenor, the incumbent union. The Board said that it did not take issue with the hearing officer's concern that Grossbard's conduct may have been intended to furnish the basis for an objection should the Petitioner (President Container Employees Association) win the election, adding: [HTML] [PDF]

"Here, however, Grossbard's refusal to bargain was not directed at both unions or at the prevailing Petitioner, but solely at the Intervenor, which was the losing party. Of course, it is not beyond imagination that the Intervenor could have colluded with the Employer to manufacture an election objection in this fashion. Had such collusion been shown, this would be a different case; we would not allow a party to profit from its own misconduct. On the record before us, however, we cannot find that the Intervenor played any role in orchestrating Grossbard's statement and walkout. Thus, even assuming that the Employer had a hidden agenda in engaging in objectionable conduct, there is no evidence that the Intervenor was anything other than an injured party."

The Board set aside the election on the basis of the conduct at issue in Objection 17 and found it unnecessary to pass on the other exceptions to the Regional Director's findings and the hearing officer's recommendations besides those that it adopted pro forma. The tally of ballots shows 138 votes for the Petitioner, 65 votes for the Intervenor, 7 votes against union representation, and 12 challenged ballots, an insufficient number to affect the results. In the absence of exceptions, the Board adopted pro forma the hearing officer's recommendation that Intervenor's Objections 11, 12, and 19 be overruled and the Regional Director's finding that the Intervenor's Objections 2, 3, 4, 6-10, 13, and 18 be overruled.

WBAI Pacifica Foundation (2-UC-496, 517; 328 NLRB No. 179) New York, NY Aug. 26, 1999. The Board concluded, contrary to the Regional Director, that unpaid staff are not employees within the meaning of Section 2(3) of the Act and, accordingly, clarified the existing bargaining unit in the collective-bargaining agreement between the Employer and Electrical Workers (UE) and its Local 404 to exclude them. [HTML] [PDF]

The Employer is a not-for-profit corporation engaged in operating a noncommercial FM radio station. On February 12, 1997, the Regional Director issued a Decision and Order Clarifying Unit finding it appropriate to include the classifications of Business Director and unpaid staff in the existing unit. On June 4, 1997, the Board granted the Employer's request for review of the Regional Director's inclusion of the unpaid staff.

In this decision on review, the Board found that the unpaid staff are not employees within the meaning of Section 2(3) because there is no economic aspect to their relationship with the Employer, either actual or anticipated, explaining:

"In this connection, we, like the Court in Pittsburgh Plate Glass [404 U.S. 157 (1971)], find that this case is not a doubtful one. The ordinary meaning of employee does not include unpaid staff; unpaid staff do not work for another for hire. As we have observed earlier, to work for hire is to receive compensation for labor or services. Unpaid staff do not receive compensation for their work at the station."

The Board noted these factors in reaching its conclusion. The unpaid staff receive no wages or fringe benefits. To the contrary, they often raise money or contribute money to the station. To the extent that unpaid staff receive compensation for their work, it is not compensation from the Employer and is not economic in nature. The testimony of the unpaid staff showed that they work out of an interest in seeing the station continue to exist and thrive, out of concern for the content of the programs they produce, and for the personal enrichment of doing a service to the community and receiving recognition from the community. Nor do the contractual provisions allowing unpaid staff to receive reimbursement for travel and a child care allowance require a different result. That unpaid staff are paid when they substitute for paid staff is also not evidence that they receive compensation from their work for the Employer. Finally, the finances that unpaid staff receive for their programs is not a form of remuneration for services they have rendered to the Employer.

Auto Workers Local 735 (7-CB-11729; 328 NLRB No. 172) Ypsilsanti, MI Aug. 16, 1999. As recommended by the administrative law judge, the Board dismissed complaint allegations that the Union violated Section 8(b)(1)(A) of the Act when its agent Gary O'Neal threatened employees of General Motors Corporation with physical harm because they did not pay union dues. Based on his review of the evidence and evaluation of the witnesseses' testimony, the judge found that O'Neal did not make the statements as alleged by the General Counsel. [HTML] [PDF]

Charge filed by Thomas G. DeMiro; complaint alleged violation of Section 8(b)(1)(A). Hearing at Detroit on Feb. 8, 1999. Adm. Law Judge Bruce D. Rosenstein issued his decision May 7, 1999.

Acme Markets, Inc. (4-RC-18933; 328 NLRB No. 173) PA, DE, ME, and NJ Aug. 16, 1999. The Board found that a four-state, employerwide unit consisting of all employees employed by the Employer in all of its pharmacies in Pennsylvania, Delaware, Maryland, and New Jersey is appropriate for collective bargaining; and remanded the proceeding to the Regional Director for further appropriate action. The Board agreed with the Regional Director that the petitioned-for unit consisting of pharmacy employees in only three of the four states in which the Employer operates is inappropriate. Contrary to the Regional Director, however, it found that separate units limited to pharmacies in each of three separate states also are not appropriate for bargaining. The Board wrote: "Although it is clear that the employees in the originally petitioned-for unit share a significant community of interest, the record fails to show that their community of interest is distinct from the community of interest they share with the employees of the Employer's New Jersey stores." The Board affirmed the Regional Director's finding that the Employer's pharmacy managers are not statutory supervisors. [HTML] [PDF]

In affirming the Regional Director's findings concerning the pharmacy managers' lack of supervisory authority, Member Brame found it unnecessary to rely on Providence Hospital, 320 NLRB 717 (1996); Ten Broeck Commons, 320 NLRB 806 (1996); and Altercare of Hartville, 321 NLRB 847 (1996).

Auto Workers International and various of its Local Unions (31-CB-7841, et al.; 328 NLRB No. 175) Los Angeles, CA Aug. 16, 1999. The Board held that the Respondent International's use of the "local presumption" in its 1991 Expenditures Report provided to nonmember objectors did not breach its duty of fair representation in violation of Section 8(b)(1)(A) of the Act, and that the Respondent International and Respondent Local 376 did not violate Section 8(b)(1)(A) and 8(b)(2) or breach their duty of fair representation in providing charging party George Gally with notice regarding his Beck rights prior to seeking his discharge. The Board denied the General Counsel's Motion for Summary Judgment, granted the Respondents' cross-motion, and dismissed the complaint in its entirety. [HTML] [PDF]

The complaint alleges that beginning in June 1992, the Respondent International distributed a Report on Expenditures Incurred in Providing Collective Bargaining Related Services for Fiscal Year 1991 to all nonmember unit employees of various employers who, at the time, had on file with the International a current objection to the payment of dues or fees for nonrepresentational activities within the meaning of Beck, and that the report contained no information regarding the expenditures of the specific Respondent Locals other than a discussion of the application of the International's allocation between chargeable and nonchargeable expenditures to that portion of dues and fees retained by the various locals.

The Board found that the Respondent International's failure to provide objecting nonmembers further information regarding the expenditures of the various locals and its use of this "local presumption" in its Report did not breach its duty of fair representation. It agreed with the General Counsel that the use of a totally unreasoned or unsupported local presumption would not meet a union's duty of fair representation, because it would not provide objectors with sufficient information to enable them to decide whether or not to challenge the union's figures. Contrary to the General Counsel, however, it found that the Respondents provided adequate support for their use of the local presumption in this case.

The complaint also alleges that in August 1989 and June 1990, the International provided Gally, a nonmember employee of Colt, with Beck notices included in its Solidarity magazine containing certain information. Subsequently, the Respondent requested Gally to pay monetary amounts equivalent to full union dues. When Gally did not comply, the Respondents requested that Colt discharge him under the terms of the union-security clause in the parties' collective-bargaining agreement.

The Board found that the International's initial Beck notices satisfy its duty of fair representation, and that the International and Local 376 did not act unlawfully by failing to provide Gally with additional information concerning dues and fees before seeking his discharge. In agreement with the Respondent, the Board concluded that the duty of fair representation does not require that initial Beck notice must contain the percentage of union funds spent in the last accounting year on nonrepresentational activities. It wrote: "The record is clear that Gally had resigned his union membership but had not exercised his right under Beck to object to the payment of his dues and fees on nonrepresentational activities. Thus, the failure to provide Gally with this information did not violate the Respondents' duty of fair representation as embodied in Section 8(b)(1)(A) of the Act."

Charges filed by Various Individuals; complaint alleged violation of Section 8(b)(1)(A) and 8(b)(2). General Counsel filed motion for summary judgment June 10, 1993.

King David Center and U.S. Manangement (12-CA-16368, et al.; 328 NLRB No. 159) West Palm Beach, FL Aug. 6, 1999. The Board found the Joint Employer Respondents committed numerous unfair labor practices during the Union's one-year organizing campaign starting in the summer of 1993, including discharging or otherwise discriminating against union supporters, but it dismissed several complaint allegations. The Union won the election held on August 5, 1994. The administrative law judge failed to address other allegations pertaining to allegedly retaliatory reductions in staffing levels and working hours and accordingly the Board remanded those unresolved issues to him. The decision is by Members Hurtgen and Brame. Member Fox dissented with respect to the majority's reversal of the judge's findings the Respondents unlawfully surveilled a union organizing meeting at a local Pizza Hut restaurant, by transferring an employee to a more onerous work assignment and by constructively suspending her for one week. [HTML] [PDF]

Charges filed by 1115 Nursing Home Hospital and Service Employees Union-Florida; complaint alleged violation of Section 8(a)(1), (2), (3), and (5). Hearing at West Palm Beach, FL, on 15 trial days between Feb. 6 and March 31, 1995. Decision issued by Adm. Law Judge Robert C. Batson, February 29, 1996.

Lin R. Rogers Electrical Contractors (16-CA-17563, 17563-2; 328 NLRB No. 163) Lewisville, TX Aug. 6, 1999. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act when it refused to hire six union applicants at its Lewisville, Texas jobsite, and discharged employee Roger Grizzle, who revealed his intent to organize after he was hired and who was terminated on the day he joined a union picketline. [HTML] [PDF]

The Respondent conceded that the General Counsel satisfied his Wright Line burden of showing that antiunion animus was a motivating factor in its refusal to hire the six union applicants. It contended however that it would not have hired those applicants even in the absence of their protected activities because it was following a lawful policy of filling positions by transferring employees from other jobsites on which work had finished. The Board and the judge rejected this defense.

On another alleged violation, the Board held that the Respondent violated Section 8(a)(1) through Diane Coger's statement to her husband and foreman Doug Coger, in the presence of Grizzle, that she had told the Western Staff Services manager that the Respondent could not "use" Lynch because he was "union." Coger's statement unlawfully indicated that the Respondent would refuse to hire applicants who were "union" and is clearly coercive, the Board held. The judge had found that Diane Coger, who was responsible for advertising and dealing with temporary help agencies to secure electricians for the project, made the statement and that she was an agent of the Respondent. The General Counsel excepted to the judge's failure to find that the Respondent committed an 8(a)(1) violation through Coger's statement.

Charges filed by Electrical Workers IBEW Locals 59 and 116; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Fort Worth, April 15-16, 1996. Adm. Law Judge Philip P. McLeod issued his decision June 11, 1996.

Siemens Energy & Automation (15-CA-12149; 328 NLRB No. 164) Jackson, MS Aug. 10, 1999. The Board agreed with the administrative law judge that the Respondent did not unlawfully refuse to reinstate Jesse Banks after a strike, and that it lawfully suspended and subsequently discharged him for engaging in serious strike misconduct: i.e., throwing roofing tacks (also referred to as roofing nails) on the roadway at a vehicular entrance to the plant during the strike, and kicking a car as it passed through the picket line. [HTML] [PDF]

By unpublished order dated December 21, 1998, the Board remanded the case to the judge to make findings of fact concerning whether alleged discriminatee Jesse Banks in fact kicked cars or threw roofing nails onto the roadway entrance at the Respondent's plant. Chairman Truesdale did not participate in the remand order. Member Brame dissented from the remand order, as he would have adopted the judge's original decision recommending dismissal of the complaint.

In affirming the judge's supplemental decision recommending dismissal of the complaint, Chairman Truesdale and Member Liebman found that he inappropriately applied the framework analysis set forth in Wright Line. They noted that in cases like this, where the issue is whether an employer may lawfully refuse to reinstate (and thus discharge) a striker on the basis of alleged strike misconduct, the first of a two-part analysis is set forth in Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984), enfd. 765 F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986); the second part is set forth in Rubin Bros., 99 NLRB 610 (1952), General Telephone Co., 251 NLRB 737 (1984), and Axelson, Inc., 285 NLRB 862 (1987). Applying those principles to the facts of this case, Chairman Truesdale and Member Liebman affirmed the judge's conclusion that the Respondent lawfully refused to reinstate Banks after the strike and lawfully discharged him for engaging in the strike misconduct.

Member Brame, concurring, agreed with his colleagues regarding the proper framework for analyzing this case, but he would dismiss the complaint for the reasons stated in the judge's original decision. He explained: "Thus, in agreement with the judge, I would find that the underhanded throwing motions which Banks made on the picket line alone, under the circumstances of this case, reasonably tended to coerce employees in the exercise of their Section 7 right to choose to work during the strike. . . . This conduct was undisputed and establishes that the Respondent's failure to reinstate Banks after the strike was not unlawful. . . . In such circumstances, a remand was unnecessary. Of course, the judge's supplemental decision, and his conclusion that Banks did throw the tacks further demonstrates that the Respondent lawfully failed to reinstate him."

Charge filed by Auto Workers Local 1956; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Jackson in June 1998. Adm. Law Judge William N. Cates issued his decision July 6, 1998 and his supplemental decision Jan. 9, 1999.

M. J. Metal Products (27-CA-15523, et al., 27-RC-7813; 328 NLRB No. 170) Casper, WY Aug. 10, 1999. Chairman Truesdale and Member Liebman, agreeing with the administrative law judge that a Gissel bargaining order should be issued, found that "the Respondent's course of misconduct both before and after the election clearly demonstrates that the holding of a fair election in the future would be unlikely and that the 'employees' wishes are better gauged by an old card majority than a new election.'" Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078 (D.C. Cir. 1996) (quoting Gissel, 395 U.S. at 613-614). Member Hurtgen, dissenting in part, would not now pass on the Gissel issue. See his dissent in General Fabrications Corp., 328 NLRB No. 166 (1999). [HTML] [PDF]

In concluding that Gissel order is warranted, Chairman Truesdale and Member Liebman noted these factors. (1) The Respondent committed "hallmark" violations such as the discharge of 4 union supporters in a unit of about 15 employees, more than 25 percent of the unit employees, as well as threats to sell the business and shut down operations if the Union were selected. (2) The Respondent committed numerous other and pervasive unfair labor practices including: retaliating against unit employees for their union activity by changing their work schedules, requiring them to bring doctors' slips when they are absent and to document repairs to products, and refusing to give them previously approved time off for personal business; interrogation; threats; and failing to observe the safeguards of Johnnie's Poultry, 146 NLRB 770 (1964), enf. denied 344 F. 2d 617 (8th Cir. 1979) when the Respondent's attorney interviewed employees in connection with this case. (3) The misconduct directly affected the entire unit and began the day after the Union requested recognition and continued even after the election and involved high-ranking officials. (4) The issues which concerned some courts in denying enforcement of Gissel orders are not present here, i.e., the passage of time between the Gissel order and the unfair labor practices which justified it, or because of the intervening turnover of employees and management.

Chairman Truesdale and Member Liebman disagreed with the judge's statement in his remedy section that the bargaining order is "provisional" and that it "shall become effective in the event a majority of ballots in the representation matter herein has not been cast for the Union." Under Board precedent, the Union is entitled to both a bargaining order and a certification of representative in the event the revised tally of ballots shows that it won the election, they pointed out in modifying the judge's recommended Order and finding without merit their dissenting colleague's position that the Board should reserve judgment on the Gissel bargaining order until after the election results are known. See the majority opinion in General Fabrications Corp.

Charges filed by Sheet Metal Workers Local 207; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Casper, April 21-22, 1998. Adm. Law Judge Gerald A. Wacknov issued his decision Aug. 26, 1998.

Consec Security (22-CA-22679; 328 NLRB No. 171) Kearny, NJ Aug. 12, 1999. The administrative law judge found, with Board approval, that under the rationale of Great Western Produce, Inc., 299 NLRB 1004 (1990), the Respondent's discharge of employee Wendy Harris pursuant to its unlawfully implemented shift exchange rule violated Section 8(a)(5) of the Act. In Great Western, the Board held that if an employer's unlawfully imposed rules were a factor in the discharge of an employee, then the discharge violates Section 8(a)(5). The Board also noted that an employer could raise at the compliance stage defenses to the reinstatement and backpay remedy for employees discharged in violation of Section 8(a)(5). [HTML] [PDF]

The Board modified the judge's recommended Order to conform to the remedy given in those cases cited by him where an employee was discharged pursuant to an unlawfully implemented employment rule, and ordered that any other unit employees in addition to Harris who were discharged pursuant to the unlawfully implemented rule be reinstated with backpay and have the appropriate expungement from the Respondent's files. Great Western Produce, Inc., supra and Randolph Children's Home, 309 NLRB 341 (1992). See also Tocco, Inc., 323 NLRB 480 (1997).

In joining this broad remedy covering "any other unit employees [besides Harris] who were discharged pursuant to the unlawfully implemented employment rule," Member Brame stressed that "it remains the General Counsel's burden, at any compliance proceeding, to establish by evidence that would be admissible at an unfair labor practice hearing the casual connection between the Respondent's rule and the discharge action as the basis for granting relief."

Charge filed by Teamsters Local 102; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Newark on Feb. 3, 1999. Adm. Law Judge Raymond P. Green issued his decision March 24, 1999.

M.B. Consultants, Ltd. (3-RC-10769; 328 NLRB No. 162) South Fallsburg, NY July 30, 1999. The Board certified the results of an election held on January 8, 1999, which Food and Commercial Workers Local 174 lost 59-53. In the absence of exceptions, the Board adopted, pro forma, the hearing officer's recommendation that the Union's objections pertaining to alleged unlawful threats, interrogations, surveillance, and coercive changes in the lunch hour, and the Employer's objections be overruled. [HTML] [PDF]

Contrary to the hearing officer, the Board found insufficient evidence to establish that a conversation between plant manager Jeremias Marcano and two employees could have affected the results of the election. The Board noted that there is no affirmative evidence in the record indicating that Marcano's statements to union activist Garay and her sister were disseminated to any other employees. In fact, Garay testified that she took no action based on Marcano's suggestion to "put the union aside" and then to "get a group of people" together to speak directly to upper management about employee concerns. "In light of Garay's testimony, there is no basis for finding that those statements could have affected more than two votes," the Board said, adding: "Under the circumstances, and given the six-vote margin in the election, we are unable to conclude that this single incident could have affected the results of the election."

Held & Held Masonry, Inc. (7-CA-39551; 328 NLRB No. 158) Tipton, MI Aug. 2, 1999. The Respondent violated Section 8(a)(1) of the Act by discharging Marty Canales because he asserted a claim pursuant to a collective-bargaining agreement that he did not receive overtime pay rate for hours worked, the Board held in agreement with the administrative law judge. The Respondent argued that Canales would have been laid off in any event when that particular project ended about a month after his discharge. The judge found that such matters in the construction industry are more appropriately resolved during compliance proceedings relying on Holder Construction Co., 327 NLRB No. 68 (1998), citing Dean General Contractors, 285 NLRB 573 (1987). [HTML] [PDF]

Chairman Truesdale and Member Hurtgen would leave to compliance issues relating to the Respondent's obligation to reinstate and make whole Canales. Without passing on the validity of Dean General Contractors, Member Brame would not in any event apply the remedy approved in that case in circumstances where, as here, the discriminatee is a recent hire. See, e.g., Cash Equipment Rental, 326 NLRB No. 99, fn. 2 (1998).

Charge filed by Marty Canales, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Detroit on Jan. 7. 1999. Adm. Law Judge William G. Kocol issued his decision March 1, 1999.

Bethany Medical Center (17-CA-17927; 328 NLRB No. 161) Kansas City, KS Aug. 3, 1999. The Board agreed with the administrative law judge that the Respondent's catheterization laboratory employees were engaged in protected concerted activity when on March 9, 1995, they walked off their job for 2 hours in protest of certain terms and conditions of employment; and that Bethany Medical Center violated Section 8(a)(1) of the Act by discharging and thereafter refusing to reinstate catheterization laboratory employees Janise Selbe, Mary Zeller, Margaret Fergus, Jackie Hoelting, and Deborah Tanner because of the activity. [HTML] [PDF]

The catheterization laboratory employees gave notice of their walkout only 15 minutes prior to the first catheterization procedure scheduled for the day. The Board rejected the Respondent's contentions that the walkout was "unlawful" based on Section 8(g) and that the employees' refusal to perform the scheduled procedures and their refusal to return to perform an emergency procedure was indefensible conduct. The judge found, and the Board agreed, that special strike notice requirements of Section 8(g) apply only to labor organizations, not to groups of employees; and that the employees were not legally required to do anything more than they did to preserve their Section 7 rights since no labor organization was involved in the walkout. The Board found also that the catheterization laboratory employees' work stoppage and refusal to terminate it to perform an emergency catheterization "did not foreseeably create such a risk of harm to patients" as to justify depriving them of the Act's protection.

In agreeing with his colleagues that the catheterization laboratory employees' walkout and failure to return on request was protected, Chairman Truesdale found that this case is more like East Chicago Rehabilitation Center v. NLRB, 710 F.2d 397 (7th Cir. 1983), where the court upheld the Board's finding that a spontaneous 2-hour walkout by 17 nurses aides was protected, than NLRB v. Federal Security, 154 F.3d 751 (7th Cir. 1998), where the court agreed with his dissent and found a walkout by security guards at a public housing project unprotected. The Chairman wrote: "As the court noted in Federal Security, unlike the nurses aides in East Chicago, who were 'provided cover' by doctors and nurses, the guards in Federal Security were 'front line' and left behind unattended stations. 154 F.3d at 756. Here, there were other persons to 'provide cover' for the employees by arranging for alternative care for the patients."

Charge filed by Janise Selbe, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Overland Park, Jan. 25-26, 1996. Adm. Law Judge William N. Cates issued his decision April 26, 1996.

Affiliated Foods, Inc. (16-CA-18695(1-2); 328 NLRB No. 165) Amarillo, TX Aug. 4, 1999. Affirming the administrative law judge, the Board concluded that the General Counsel failed to prove by a preponderance of the evidence that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Ronald Hunt, John Weeks, and Alphonse Fred Buss; and dismissed the complaint. [HTML] [PDF]

Chairman Truesdale and Member Liebman reached the result despite their disagreement with the judge's finding that language about unions in the Respondent's employee handbook was not evidence of the Respondent's animus against unions and those who support them. They explained: "Even if we were to find that the General Counsel had met the threshold burden of proving antiunion motivation, we agree with the judge's further finding that the Respondent proved it would have discharged the three alleged discriminatees even in the absence of their protected union activities." Contrary to his colleagues, Member Hurtgen, does not find that the handbook provisions constitute evidence of animus such as to support a violation of Section 8(a)(3). See his dissenting position in Wire Products Mfg. Corp., 326 NLRB No. 62, slip op. at 6 (1998).

Charge filed by Food and Commercial Workers Local 548; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Amarillo, March 9-10, 1998. Adm. Law Judge Keltner W. Locke issued his decision March 11, 1998.

Vencor Hospital-Los Angeles (31-RC-7181; 328 NLRB No. 167) Los Angeles, CA Aug. 5, 1999. Contrary to a hearing officer's recommendation, the Board found that 33 registered nurse team leaders are not statutory supervisors "since they do not assign, direct, discipline, or evaluate using independent judgment within the meaning of Section 2(11) of the Act." Accordingly, the Board directed that the Employer's challenges to the ballots of these employees in a July 14, 1994 election be overruled. The proceeding was remanded to the Regional Director to prepare a revised tally of ballots and issue the appropriate certification. [HTML] [PDF]

The original tally showed that of 65 eligible voters, 56 cast ballots: 4 were for the Union, 7 against, and 45 ballots were challenged. The hearing officer recommended, and the Board agreed, that the Union's challenges to 10 ballots based on supervisory grounds be overruled. The Board applied the traditional test of supervisory status it used in Providence Hospital, 320 NLRB 717 (1996), and Ten Broeck Commons, 320 NLRB 806 (1996), in finding the 33 RN team leaders were not supervisors. "The burden of proving supervisory status rests with the party asserting that status," and the Employer failed to do so here, the Board said.

Among the factors the Board cited in arriving at this ruling were: (1) The RN team leaders have no authority to assign staff employees to teams; that is done by the RN house supervisor. (2) The record also failed to show that the RN team leaders use independent judgment in directing the work of their team members. (3) The record evidence does not establish that the RN team leaders either discipline team members or effectively recommend disciplinary action. The Employer relied on the ability of the RN team leaders to issue oral warnings and to recommend discipline as demonstrating supervisory status. (4) Although the RN team leaders participate in the preparation of employee evaluations, and their prior written reports which were placed in the employee's file are also considered, the evaluations are not the sole product of the RN team leaders.

The Board pointed out in a footnote that its approach to the charge nurse supervisory issue has been upheld by the Seventh, Eighth, Ninth and District of Columbia Circuits. NLRB v. Audubon Health Care Center, 170 F.3d 662 (7th Cir. 1999); Lynwood Health Care Center, Minnesota, Inc. v. NLRB, 148 F.3d 1042 (8th Cir. 1998); Grandview Health Care Center v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997); Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir. 1997). In contrast, the Third, Fourth and Sixth Circuits have denied enforcement of the Board's orders in similar cases, rejecting the Board's distinction. Beverly Enterprises, Virginia, Inc. v. NLRB, 165 F.3d 290 (4th Cir. 1999); Passavant Retirement and Health Center v. NLRB, 149 F.3d 242 (3d Cir. 1998); Mid-America Care Found v. NLRB, 148 F.3d 638 (6th Cir. 1998). The Board stated it will continue to adhere to its decision in Providence Hospital, supra, and respectfully declined to follow the latter circuits' opinions. It also noted that this case arises within the geographical jurisdiction of the Ninth Circuit.

General Fabrications Corp. (8-CA-29443, et al., 8-RC-15667; 328 NLRB No. 166) Sandusky, OH Aug. 5, 1999. Chairman Truesdale and Member Liebman affirmed the administrative law judge's conclusion that a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), was warranted after finding that the Respondent's misconduct both before and after the election, fell into the second category described in Gissel as "less extraordinary" yet still having a "tendency to undermine majority strength and impede the election processes." [HTML] [PDF]

Member Hurtgen, dissenting, would not issue a Gissel bargaining order at this time. He noted that the election held January 20, 1998 resulted in 13 votes cast for, and 14 votes cast against, Sheet Metal Workers Local 33, with four challenged ballots, all of which have been overruled and include ballots of three of the discriminatees. Citing Demi's Leather Corp., 321 NLRB 966, 967 (1996), Member Hurtgen believes that the case should be returned to the Board after the issuance of a revised tally of ballots. If the Union has lost, he would then decide the Gissel issue.

Chairman Truesdale and Member Liebman, in finding that the effect of the Respondent's unfair labor practices could not be erased by traditional remedies and that the holding of a fair election would be unlikely, noted that the Respondent's misconduct included "hallmark" violations such as the discharge, layoff, and suspension of employees who engaged in union activity during the organizational campaign, as well as threats of job loss, plant closure, and futility in the event of a union victory; and other serious and pervasive unfair labor practices. They noted also that the violations began almost immediately after the Respondent learned of employees' union organizing activity and in one instance continued even after the election; the small unit of approximately 31 employees; that the violations affected the entire unit; and that the misconduct emanated from the highest level officials, with many attributable to the Respondent's general manager and its owner/president. Chairman Truesdale and Member Liebman concluded:

"Although the unlawfully discharged and laid-off employees are entitled to reinstatement and backpay, these remedies would not, in our view, erase the coercive effects of the Respondent's antiunion conduct. The reinstated employees would not likely again risk incurring the Respondent's wrath and another period of unemployment by resuming their union activities."

In response to their dissenting colleague, Chairman Truesdale and Member Liebman noted that it is well settled that the Union is entitled to both a bargaining order and a certification of representative in the event the revised tally of ballots shows that it won the election, and that Demi's Leather is not inconsistent with those cases.

Charges filed by Sheet Metal Workers Local 33; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Port Clinton, June 8-12, 1998. Adm. Law Judge George Carson II issued his decision Sept. 17, 1998.

Mississippi Power & Light Company (15-UC-132; 328 NLRB No. 146) Jackson, MS July 26, 1999. In a 3 - 2 decision, the Board upheld the Regional Director's dismissal of the Employer's unit clarification petition seeking to exclude, as supervisors, the Employer's distribution dispatchers and system dispatchers from the bargaining unit represented by the Unions. In finding the dispatchers at issue are not statutory supervisors, the Board overruled Big Rivers Electric Corp., 266 NLRB 380 (1983). The majority opinion is by Chairman Truesdale and Members Fox and Liebman; Members Hurtgen and Brame dissented. [HTML] [PDF]

In concluding the dispatchers are not supervisors within the meaning of Section 2(11) of the Act, the majority found that "the dispatchers' purported authority to assign and direct field employees does not involve the exercise of independent judgment within the meaning of Section 2(11)." The Board stated:

"We believe that the Board in Big Rivers, and the courts in the cases leading to the Board's decision, may have been swayed by the complexity of the dispatchers' responsibilities and the adverse consequences to the well-being, safety, and lives of the public and employees that might result from systems supervisors' (dispatchers herein) faulty decisions regarding switching sequences. That severe consequences might flow from the dispatchers' misjudgments in their own work, however, does not necessarily make their judgments supervisory. See Cooper/T.Smith, Inc. v. NLRB, 161 LRRM 2526 (11th Cir. 1999)."

Dissenting Members Hurtgen and Brame argued the dispatchers were supervisors and should be excluded from the unit. They pointed out "the dispatchers must use such independent judgment to make complex decisions when assigning and directing work-electing among a myriad of complex factors (including, but not limited to the availability and capabilities of complex equipment, field employee skill and availability, weather and environmental factors, and the varying power needs of the affected customers)."

Members Hurtgen and Brame stated "the majority has not presented a compelling case for overruling Big Rivers or rejecting the weight of court law holding dispatchers to be Section 2(11) supervisors."

Garvey Marine, Inc. (13-CA-33241, 33342, 13-RC-19061; 328 NLRB No. 147) Lemont, IL July 27, 1999. The Board held that the Respondent's unfair labor practice violations during the course of the union's unsuccessful election campaign were sufficiently severe to warrant the issuance of a Gissel bargaining order, notwithstanding the violations occurred in 1995 and the administrative law judge's decision issued in 1996. The judge also had found the Respondent's conduct unlawful, including the discharge of two union activist deck hands and the imposition of a stricter disciplinary system after the union campaign began, but he declined to issue a bargaining order as requested by the General Counsel. The majority opinion is by Chairman Truesdale and Member Fox; Member Hurtgen dissented. [HTML] [PDF]

The majority distinguished this case from Wallace International de Puerto Rico, 328 NLRB No. 3 (Apr. 12, 1999), in which the Board decided not to seek extraordinary remedies-even though warranted-because its four-year delay in rendering a decision made court enforcement of a bargaining order difficult. Here, however, "the extent and severity of the violations. . . including over 30 serious violations of Section 8(a)(1) and 3 violations of Section 8(a)(3), surpass even the hallmark violation found in Wallace" [the employer threatened plant closure if the employees voted for the union].

In dissent, Member Hurtgen agreed with the judge that the General Counsel had failed to show an "extraordinary" remedy was necessary, and that the violations could be corrected by traditional remedies. He noted as factors militating in favor of a fair election and against a bargaining order that only 4 of the 21 original unit employees remained, and that the violations occurred in July 1995.

Charges filed by Longshoreman's Local 2038; complaint alleged violation of Section 8(a)(1) and (3). Hearing held July 10-14 and 24-28, 1995. Adm. Law Judge Thomas R. Wilks issued his decision March 13, 1996.

Traction Wholesale Center Co., Inc. (4-CA-25952, et al., 4-RC-19107; 328 NLRB No. 148) Philadelphia, PA July 28, 1999. Affirming the administrative law judge, the Board found that the Respondent unlawfully solicited and implicitly promised to remedy grievances during a 1997 union organizing campaign, citing Reliance Electric Co., 191 NLRB 44, 46 (1971), enfd. 457 F.2d 503 (6th Cir. 1972). It concluded the judge properly authenticated a signature on an authorization card by comparing it to documents in the Respondent's personnel records in establishing the Union's majority status. (Counting that card, the Union had 11 signed cards from 20 unit employees.) The Board adopted the judge's recommendation of a Gissel bargaining order. [HTML] [PDF]

The majority opinion is by Chairman Truesdale and Member Liebman. In dissent, Member Brame would set aside the election and direct a second election rather than issue a bargaining order. He contended the authorization card in question could not be properly authenticated by comparing it to signatures on other documents which had not themselves been authenticated, citing Be-Lo Stores, Inc. v. NLRB, 126 F.3d 268, 279-280 (4th Cir. 1997).

Charges filed by Teamsters Local 115; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Philadelphia, Nov. 3-5, 1997. Adm. Law Judge George Aleman issued his decision Sept. 25, 1998.

Plumbers Local 412 (28-CA-14684; 328 NLRB No. 155) Albuquerque, NM July 29, 1999. Affirming an administrative law judge, the Board dismissed a complaint that had alleged that the Respondent Union unlawfully discharged a clerical employee, who was not covered by a collective bargaining agreement, for discussing her wages and a matter regarding her pension eligibility with members of the Union's executive board and other employees. The judge determined she had not engaged in protected concerted activity and that there was no evidence to indicate the Respondent was aware the employee had discussed these matters with the board. [HTML] [PDF]

Charge filed by Susie K. Quesnell, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Albuquerque, NM, September 17-18, 1998. Adm. Law Judge Mary Miller Cracraft issued her decision March 29, 1999.

Carlon, A Lamson & Sessions Co., Cement Workers Lodge D465, and the Iron Workers International (17-CA-15845-1, 17-CB-4129-1, 4129-2; 328 NLRB No. 154) Oklahoma City, OK July 26, 1999. In the absence of exceptions, the Board adopted, pro forma, the administrative law judge's finding that the union-security clause in the Respondents' collective-bargaining agreement was void ab initio because its "member in good standing" requirement overstated the obligations that lawfully could be imposed on bargaining unit employees. Specifically, the judge found the Respondent Employer violated Section 8(a)(3) and (1) of the Act by maintaining and enforcing the provision, and the Respondent Unions violated Section 8(b)(1)(A) by maintaining it because the clause was unclear and ambiguous and did not inform employees that their actual contractual obligations were limited to the payment of periodic dues and initiation fees. [HTML] [PDF]

There were no exceptions to the judge's findings, which the Board adopted pro forma, that, absent any procedure that would have allowed Charging Party Richard Ohse to pay only for the Unions' representational expenditures, his resignation and objection revoked his authorization to deduct full union dues as a matter of law; and that no dues were owed and that by continuing to withhold, receive, and accept Ohse's full dues after his resignation, the Respondents violated Section 8(a)(1) and (3), and Section 8(b)(1)(A) and (2).

Members Fox and Liebman noted that although the Board adopted pro forma, in the absence of exceptions, the judge's finding that the clause was invalid ab initio, the "Supreme Court has now authoritatively held to the contrary" in Marquez v. Screen Actors Guild, 119 S.Ct 292 (1998), which issued after the judge's decision. They wrote: "We are, thus, in the unusual position of having to devise an appropriate remedy for conduct that was not actually illegal. However, the Board 'has wide discretion' in its choice of remedy, guided by the express direction in Section 10(c) of the Act that the relief order is to be such 'as will effectuate the policies of the Act.' The relief 'is to be adopted to the situation which calls for redress.'"

Thus, Members Fox and Liebman ordered the Respondents: to reimburse Ohse only for the portion of the dues collected from him after he resigned and objected that were spent for nonrepresentational activities; to inform all unit employees of their Beck and General Motors rights and to provide Ohse with the information required to be furnished to objectors under California Saw & Knife Works, 320 NLRB 224, 233 (1995); and to notify in writing those employees whom they initially sought to obligate to pay dues or fees under the union-security clause after May 28, 1991, of their right to elect nonmember status and to make Beck objections with respect to one or more of the accounting periods covered by the complaint.

Member Hurtgen would order a full dues reimbursement. The fact that the union-security clause would not be unlawful under Marquez does not contradict the point that the clause in this case has been declared unlawful, he said. Further, Member Hurtgen noted that even after Marquez issued, the Respondent did not seek to alter the judge's remedy. Thus, he would not depart from the Board's traditional remedy for an unlawful union-security clause.

Charges filed by Richard Ohse, an individual; complaint alleged violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2). Hearing at Oklahoma City on June 22, 1992. Adm. Law Judge Steven M. Charno issued his decision Sept. 2, 1992.

Frierson Building Supply Co. (26-CA-17643 (formerly 15-CA-14044), 26-CA-14232 (formerly 15-CA-14232); 328 NLRB No. 149) Jackson, MS July 27, 1999. Contrary to the administrative law judge, the Board dismissed the complaint in its entirety. The Board agreed with the judge's finding that the General Counsel failed to establish that the Respondent unlawfully discharged Glendon Kurten, but it found that the General Counsel also failed to establish a violation with respect to Timothy Adams, the other alleged discriminatee. The judge found, and the Board agreed, that the record contained no direct evidence of antiunion animus. It disagreed with his finding that the record supported an inference of animus. [HTML] [PDF]

Charges filed by Furniture Workers Local 282, IUE; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Jackson in November 1997. Adm. Law Judge William N. Cates issued his decision Dec. 22, 1997.

Deposit Telephone Co. (3-RC-10559; 328 NLRB No. 151) Deposit, NY July 27, 1999. Chairman Truesdale and Members Fox and Liebman, with Members Hurtgen and Brame dissenting, overruled Red Hook Telephone Co., 168 NLRB 260 (1967), and Fidelity Telephone Co., 221 NLRB 1335 (1976), and related cases to the extent that they place controlling weight on the size of the employee contingent and geographic service area in determining appropriate bargaining units in the utility industry. The majority wrote: [HTML] [PDF]

"We are not persuaded that numbers alone should have any more relevance in the utility industry than in other industries. Similarly, while the size of a utility's geographic service area could affect the community of interest shared by its employees, i.e., the amount of contact employees in distant parts of the service area have with one another, this factor does not necessarily have any relevance in determining the appropriateness of a less than systemwide unit. We therefore find that the better approach is to consider the size of the employee contingent and geographic service area only to the extent that these factors relate to the community of interest shared by employees in the unit, and not as controlling factors in and of themselves."

Applying those principles to this case, the majority reversed the Acting Regional Director's finding that the smallest appropriate unit is a wall-to-wall unit of all employees, and concluded that the unit of Customer Service Technicians (CSTs) and maintenance employee petitioned for by Electrical Workers IBEW Local 1125 is appropriate. The Acting Regional Director had relied on Red Hook and Fidelity, where the Board rejected proposed units composed of less than the employers' entire work force in operations with a small employee contingent, a high degree of functional integration between departments, and a limited geographic service area. The majority found that Red Hook and Fidelity were wrongly decided, and directed an election among the petitioned-for unit of SCTs and maintenance employee, excluding the additional categories of Customer Service Representative (CSRs), the assistant-data processing, and the cashier.

Members Hurtgen and Brame agreed with the Acting Regional Director's finding that the petitioned-for unit of CSTs and maintenance employees is inappropriate. They would adhere to the Board's "well reasoned" decisions in Red Hook and Fidelity that find similar units to be inappropriate for the public utilities industry, and that the majority overruled to the extent that they are inconsistent with the result here. Members Hurtgen and Brame wrote: "In short, by its decision here, the majority has emasculated the Board's policy against the fragmentation of bargaining units in the public utilities sector. Our colleagues' position, when universally applied to similar cases, will likely lead to the disruption in utility service to the general public that the Board has attempted to prevent by favoring systemwide units in this industry."

Randell Warehouse of Arizona (28-RC-5274; 328 NLRB No. 153) Tucson, AZ July 27, 1999. Chairman Truesdale and Members Fox and Liebman overruled the Employer's Objection 2 and certified Sheet Metal Workers Local 359, concluding that the Union's conduct, in photographing the interaction of union representatives distributing union literature outside the Employer's plant and employees either accepting or refusing the materials, absent evidence of any express or implied threats or of other coercion, was not objectionable. Thus, they found it unnecessary to examine the adequacy of the Union's explanation. Member Brame concurred in the result. Member Hurtgen dissented. [HTML] [PDF]

On August 7, 1996, the Board held oral argument on the issues raised in the Employer's Objection 2 concerning the Union's photographing of employees and in Flamingo-Hilton-Reno, Inc., Case 32-CA-14378. On March 8, 1999, the Board issued an order in Flamingo-Hilton-Reno granting the joint motion of the Respondent and Charging Party to remand the proceeding to the Regional Director for processing of a non-Board settlement.

In this decision, Chairman Truesdale and Members Fox and Liebman said, in holding that photographing employees during an organizational campaign is one means by which unions can determine the identity and leanings of employees and carry out their legitimate objective of attaining majority support: "We find no objective or principled basis for distinguishing between asking an employee to sign an authorization card and recording the employee's response in documentary form, on the one hand, and making a visual record of the employee's response through videotaping or photography on the other." Thus, in overruling Pepsi-Cola Bottling Co., 289 NLRB 736 (1988), and rejecting its premise that union photographing or videotaping of employees engaged in protected activities during an election campaign, without more, necessarily interferes with employee free choice, they held:

"On further consideration, we have concluded that the standard for union photographing of employees in a pre-election setting established by Pepsi-Cola Bottling is inconsistent with Board law involving union inquiry into employees' sentiments respecting representation. Pepsi-Cola's general prohibition against making a visual record of employees' reactions to proffered union literature cannot be reconciled with Board and court cases permitting unions to ask employees directly whether they support the union, to attempt to persuade employees to sign petitions in support of representation, and to record the employees' responses."

Chairman Truesdale and Members Fox and Liebman did not overrule Mike Yurosek & Son, Inc., 292 NLRB 1074 (1989), where the Board applied Pepsi-Cola to find objectionable the union's photographing of prounion and antiunion employees' campaign activities in front of the plant gate, because they would reach the same result today on the facts presented there. In deciding to overrule Pepsi-Cola, Chairman Truesdale and Members Fox and Liebman wrote further:

"We recognize that, in contrast to our holding here, the Board has found, with court approval, that, absent proper justification, employer photographing or videotaping of employees engaged in protected activities is unlawful 'because it has a tendency to intimidate.' F.W. Woolworth Co., 310 NLRB 1197 (1993) (employer photographing and videotaping of employees handing out leaflets in front of store unlawful). The Board and the courts, however, have long applied differing standards to certain types of employer and union conduct during election campaigns in recognition of the fundamental fact that an employer, unlike a union, has virtually absolute control over employees' terms and conditions of employment. Consequently, there is no merit in the contention that it is inequitable and inconsistent for the Board to permit unions to photograph employees being offered campaign literature, while barring the same conduct by employers."

Member Brame noted that his colleagues, in overruling existing case law prohibiting labor organizations from photographing or videotaping employees involved in protected activities without offering the employees a "legitimate explanation" for so doing, recognize that the act of photographing is not inherently coercive. Yet they simultaneously hold that the identical conduct when engaged in by an employer is presumptively coercive and refuse likewise to overrule F.W. Woolworth, he said, adding: "As I believe the Board must treat like conduct identically, I join with my colleagues in overruling Pepsi-Cola, but cannot acquiesce in their refusal to abandon F.W. Woolworth." He believes that an "all the circumstances" approach in this area is more consonant with the Board and courts' traditional method of analysis in Section 8(a)(1) cases and is consistent with the way the Board treated Section 8(b)(1)(A) cases involving photographing.

Member Hurtgen, dissenting, would not overrule Pepsi-Cola or the hearing officer's finding, under extant law, that the Union's conduct was objectionable. Member Hurtgen also noted his agreement with Member Brame that the issue of whether photographing is objectionable should be judged by a uniform standard, irrespective of whether the photographing is by a union or an employer. "Further, that standard should not be a per se standard, either for employer or union conduct," Member Hurtgen said. However, he did not pass on the broader issues raised by Member Brame because resolution of those issues is not necessary to the disposition of this case.

Health Care & Retirement Corp. d/b/a Heartland of Beckley (9-RC-16895; 328 NLRB No. 156) Beckley, WV July 27, 1999. The Board dismissed the petition filed by Health Care and Social Service District 1199, Service Employees seeking to represent approximately 43 to 48 licensed practical nurses (LPNs) working at the Employer's nursing home in Beckley, West Virginia. Contrary to the Regional Director, who directed an election in the petitioned-for unit, the Board found that the Employer has met its burden of establishing that the LPNs, through their role in the Employer's disciplinary procedure, possess supervisory authority. [HTML] [PDF]

The Regional Director had found that the Employer's LPNs had the authority to exercise independent judgment in disciplining the certified nursing assistants (CNAs) prior to March 1997, when in response to criticisms made in a state survey of the Employer's business, the Employer held meetings with the LPNs to implement some changes in the system they were to follow when disciplining CNAs. The Regional Director found that the meetings created a new disciplinary system which entirely supplanted the former one and left the LPNs with significant less authority than they had previously. The Board disagreed, noting that the Employer reinforced the existing system without making any substantive deletions or changes, except with respect to the alleged cases of patient abuse. Thus, it concluded the LPNs' authority was not diminished by any policy changes resulting from the meetings of March 1997.

Suffolk Banana Co. (29-RC-9174; 328 NLRB No. 157) Lynbrook, NY July 29, 1999. The Board reversed the Regional Director's Decision and Direction of Election and dismissed the representation petition filed by Local 890, League of International Federated Employees. Contrary to the Regional Director, the Board found that the collective-bargaining agreement between the Employer and the Intervenor (Food and Commercial Workers Local 348-S) constitutes a bar to the petition and that the petition was untimely filed. [HTML] [PDF]

The Regional Director had found that the contract required employees to pay moneys other than dues and initiation fees as a condition of employment and that it lacked a clear expiration date, thereby depriving employees of the means to determine the proper time for filing a representation petition. The Board noted that the dues-checkoff provision contains no statement that payment of "uniform assessments" is a condition of employment or is even required; and that the union-security provision that does contain "condition of employment" language requires only that employees "be and remain members of the Union in good standing." Thus, it concluded that the contract does not expressly require the payment of assessments as a condition of employment and does not fall within the ban set forth in Paragon Products Corp., 134 NLRB 662 (1961). And, that Santa Fe Trail Transportation Co., 139 NLRB 1513, relied on by the Regional Director, is inapplicable.

On the expiration date issue, the Board pointed out that the petition, filed on December 3, 1998, was untimely as to either date in the agreement extending the contract--either the July 5, 1999 date recited in its preamble and in another provision or the July 6, 1999 date stated in the agreement's conclusion. It ruled that "the slight disparity in expiration dates had no effect at all on employee free choice and should not be grounds for finding that the contract is not a bar to the petition." The petition may properly be dismissed as prematurely filed.

Iron Workers (Southwestern Materials) (6-CE-28; 328 NLRB No. 142) Pittsburgh, PA July 19, 1999. The Board held that the Respondent Union's collective-bargaining agreement with Elwin G. Smith, Inc. (Smith) contained an anti-dual shop provision in violation of Section 8(e) of the Act. The unlawful provision stated: [HTML] [PDF]

"This agreement shall be effective in all places where work is being performed or is to be performed by the Employer-or any person, firm or corporation owned or financially controlled by the Employer, and covers all work coming under the jurisdiction of the Association [i.e., the Union]."

The administrative law judge had dismissed the complaint, which alleged the Respondent Union violated Section 8(e) by filing in Federal district court a summary judgment motion in a civil lawsuit that reaffirmed the agreement that Smith would not do business with certain companies that did not have a contract with the Union. The judge found that although the anti-dual shop clause has a secondary objective which brings it within the general proscription of Section 8(e), it is saved by the construction industry proviso to 8(e).

Although the Board agreed with the judge that the complaint is not barred by Section 10(b), it disagreed that the anti-dual shop clause is saved from illegality by the construction industry proviso. The Board relied on Carpenters District Council (Alessio Construction), 310 NLRB 1023 (1993), which issued after the judge's decision. In that case, the Board strictly construed the construction industry proviso to exclude anti-dual shop clauses from among the categories of secondary activity that Congress intended to be tolerated in the construction industry.

Accordingly, the Board held that the Union's filing of the motion for summary judgment violated Section 8(e) with respect to seeking enforcement of the anti-dual shop clause. The Board affirmed the judge's dismissal of allegations relating to a separate subcontracting clause in the agreement because its primary purpose is preserving bargaining unit work.

Charge filed by Southwestern Materials; complaint alleged violation of Section 8(e). Hearing at Pittsburgh, PA, Feb. 13, 14, 15, and 16, 1990. Decision issued by Adm. Law Judge Michael O. Miller June 24, 1991.

Carpenters Local 180, et al. (Condiotti Enterprises) (20-CB-10602; 328 NLRB No. 140) Oakland, CA July 20, 1999. The Board affirmed the administrative law judge's decision that the Respondents (Carpenters Local 180, Carpenters Local 751, and the Northern California Carpenters Regional Council) violated Section 8(b)(1)(A) of the Act by threatening employees with the loss of existing benefits, including vested pension benefits and annuities, because they resigned from the Unions and continued their employment with Condiotti Enterprises. [HTML] [PDF]

Charge filed by Condiotti Enterprises; complaint alleged violation of Section 8(b)(1)(A). Hearing at San Francisco, March 12 and 30, 1998. Adm. Law Judge Joan Wieder issued her decision May 19, 1998.

Letter Carriers Branch 758 (U.S. Postal Service) (7-CB-10408(P), et al.; 328 NLRB No. 144) Wyandotte, MI July 22, 1999. The Board agreed with the administrative law judge that the Respondent violated Section 8(b)(1)(A) of the Act by failing to provide the Charging Parties with access to their grievance files maintained by the Union, but it found, contrary to the judge, that the Respondent further violated Section 8(b)(1)(A) based on its failure to provide photocopies of the files. "We believe that the right to photocopy union documents is merely a corollary to the employee's right of access to the documents," the Board said. It agreed however with the judge's allocation of the photocopying costs to the Charging Parties given the amount of time and expense involved in copying the requested documents. [HTML] [PDF]

The Board noted, as did the judge, the important similarities between this case and Letter Carriers Branch 529 (Postal Service), 319 NLRB 879 (1995). It found that the judge incorrectly restricted Letter Carriers Branch 529 to situations where the employee's request for grievance file copies is "extremely limited." The Board wrote: "It is true that only two pieces of paper were sought by the employee in that case, but in noting the small number of documents requested, the Board did not intend to imply that seeking a larger number would negate finding a breach of the union's duty of fair representation for blanket refusal of the request. Rather, where the record contains no evidence that the requests were overbroad, the actual number of documents to be copied has no bearing on whether the employee is entitled to such information by a visual inspection or through photocopying."

Charges filed by Mark Zysk, Keith Kloock, Harold Staley, Jr., and Michael Pickett, individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Detroit, July 29-30, 1997. Adm. Law Judge Jerry M. Hermele issued his decision Dec. 29, 1997.

Beverly Health and Rehabilitation Services, et al. (15-CA-14269; 328 NLRB No. 145) Montgomery, AL July 23, 1999. Upholding the administrative law judge's findings, the Board decided that Beverly Health and Rehabilitation Services, its operating regional offices, wholly owned subsidiaries and individual facilities, are a single employer that violated Section 8(a)(5) and (1) of the Act by failing to provide Food and Commercial Workers Local 1657 with requested relevant information. The Board ordered the Respondent, Beverly Health and Rehabilitation Services, Inc., Beverly Enterprises-Alabama, Inc., d/b/a Tyson Health and Rehab Center, to provide the Union with the information it requested for each month of 1996 reflecting the average number of Medicare Part A residents, the number of therapy units of physical therapy, occupational therapy, and speech therapy performed, and the Quality Trend Indicator report. Although the Respondent unlawfully failed to provide the Union with the certified nursing assistants' hours of labor per patient day for each pay period of 1996, that information has now been provided. [HTML] [PDF]

The Respondent requested that any recommended order provide for bargaining regarding confidentiality safeguards. The General Counsel requested several extraordinary remedies, including an employer-wide cease-and-desist order and access to Beverly facilities for organizational purposes. The judge, with Board approval, denied the requests.

Charge filed by Food and Commercial Workers Local 1657; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Montgomery on Nov. 17, 1998. Adm. Law Judge George Carson II issued his decision Feb. 19, 1999.

Perdue Farms, Inc. (11-RC-6094; 328 NLRB No. 130) Lewiston, NC June 30, 1999. The Board affirmed the hearing officer's findings that the Employer committed objectionable conduct prior to a second election held April 4, 1996 among employees at Perdue's chicken processing plant in Lewiston, North Carolina. The Board set aside the election (Food and Commercial Workers Local 204 lost 947-755) and remanded the case to the Regional Director for further inquiry regarding allegations that the Petitioner's showing of interest submitted in support of the petition contained forged authorization cards. Member Hurtgen would resolve the threshold question concerning the validity of the showing of interest before ruling on the Petitioner's objections because if that showing was tainted, the original representation petition was unsupported and invalid. [HTML] [PDF]

The Regional Director performed a signature comparison in accordance with the Board's casehandling manual, but he refrained from conducting his own further investigation of the fraud allegations to avoid interfering with the criminal investigation of the U.S. Attorney for the Western District of North Carolina. In remanding to the Regional Director, the Board stated: "Now that the criminal investigation has concluded in a finding that no criminal prosecution is warranted, the Region may fully inquire into the Employer's allegations, in accordance with the appropriate sections of the casehandling manual and with the Board's commitment to the court of appeals that the forgery allegations will be fully considered."

Schwerman Trucking Co. (9-CA-35925; 328 NLRB No. 137) Kosmosdale, KY July 13, 1999. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act when terminal manager Bud Fleming interrogated employee Rudy Williams about his and other employees' union activity. Turning to another alleged violation, the Board found, contrary to the judge, that the General Counsel showed that protected conduct was a motivating factor in the Respondent's decision to discharge William Anders and that the record supported the conclusion that Human Resource Director Terry LaCasse and area manager Scott Pearce jointly made the decision to discharge Anders. Even so, the Board agreed with the judge that the Respondent showed that it would have taken the same action because of the escalation of tensions in Anders' longstanding personal dispute with Fleming even if Anders had not engaged in protected activity. [HTML] [PDF]

Charge filed by William A. Anders; complaint alleged violation of Section 8(a)(1). Hearing at Louisville on Dec. 8, 1999. Adm. Law Judge Jerry M. Hermele issued his decision April 12, 1999.

Western Pipeline, Inc. (20-RM-2803; 328 NLRB No. 138) Sacramento, CA July 15, 1999. The Board reversed the Regional Director's direction of an election in the petitioned-for unit of laborers and dismissed the Employer's RM petition. The Board found that the Union's request that the Employer execute a new collective-bargaining agreement or its conduct in pursuing its grievance and arbitration claims against the Employer to enforce a 1987 contract with construction industry employer TPCO does not constitute a sufficient basis to warrant processing the petition. The Union (Northern California District Council of Laborers) contended in its grievance that the Employer is an alter ego of Western Pipeline Co. and/or TPCO (both no longer in business) and, therefore, is bound to the current Laborers' Master Agreement. The arbitrator found that the Employer, Western Pipeline Co., and TPCO were alter egos for collective-bargaining purposes, and that the Employer was therefore bound to the master agreement. [HTML] [PDF]

Addressing the Union's request for review of the Regional Director's Decision and Direction of Election, the Board concluded, contrary to the Union, that deferral to the arbitrator's award is not appropriate under the circumstances here because "questions involving representation, accretion, or the appropriate unit are matters solely within the Board's province to decide." Further, contrary to the Union, it agreed with the Regional Director that the Employer is not an alter ego of Western Pipeline Co. and/or TPCO and that the petition is not contract barred. However, the Board found, contrary to the Regional Director that the Union has not made a "claim to be recognized" within the meaning of Section 9(a) sufficient to process the RM petition. The Board concluded that at most, the evidence shows that "the Union demanded that the Employer sign a Section 8(f) contract, and the Board has held post-Deklewa that a request or demand for a Section 8(f) contract does not support the processing of an RM petition."

Communications Workers Local 3410 (BellSouth Telecommunications, Inc.) (15-CB-4361; 328 NLRB No. 135) New Orleans, LA July 15, 1999. The Board affirmed the administrative law judge's finding that the Union violated its duty of fair representation by failing to process the grievance of Kellena L. Steverson against BellSouth concerning the staffing of a Customer Services Representative (CSR) position in violation of Section 8(b)(1)(A) of the Act. The Board ordered the Respondent to request that BellSouth offer Steverson employment in a CSR position and, if the Employer refuses, to pursue a grievance on her behalf. In the event that it is not possible for the Respondent to pursue the grievance, and if the General Counsel shows in compliance that a timely pursued grievance would have been successful, make Steverson whole for any increase in damages she suffered as a consequence of the Respondent's refusal to process that grievance. See Iron Workers Local 377 (California Iron Workers Employers Council), 326 NLRB No. 54 (1998). [HTML] [PDF]

For the reasons set forth in the partial dissent of Members Hurtgen and Brame in Iron Workers Local 377, Member Hurtgen would impose full make-whole remedial liability on the Respondent in the event that Steverson's grievance cannot be processed and the General Counsel proves in compliance that a timely pursued grievance on her behalf would have been successful.

Charge filed by Kellena L. Steverson; complaint alleged violation of Section 8(b)(1)(A). Hearing at New Orleans on Jan. 27, 1999. Adm. Law Judge Howard I. Grossman issued his decision April 9, 1999.

Carl Buddig and Co. (13-RC-19660; 328 NLRB No. 139) South Holland and Chicago, IL July 15, 1999. The Board affirmed the Regional Director's exclusion of the Employer's sanitation department employees from the petitioned-for residual unit of maintenance employees and linemen he found appropriate, but it reversed his exclusion of shipping employees. The Board agreed with the Regional Director that sanitation employees are a sufficient distinct and homogenous group that could, if sought, constitute a separate unit and, thus, do not need to be placed in the residual unit. It found however that a residual unit composed solely of maintenance employees and linemen is too narrow and must also include the shipping employees to be appropriate. [HTML] [PDF]

Inasmuch as the Petitioner (Teamsters Local 710) expressed a willingness to proceed to an election in any unit found appropriate, the Board amended the voting unit to include the shipping employees. It directed the Petitioner to submit to the Regional Director within 30 days of the Board's decision any additional showing of interest that may be required to support its petition in view of the change.

Clock Electric, Inc. (8-CA-26560, 26646; 328 NLRB No. 141) Cleveland, OH July 16, 1999. On remand from the U.S. Court of Appeals for the Sixth Circuit, the Board modified its original Order (323 NLRB 1226 (1997)), to provide a make-whole remedy of reinstatement and backpay for Richard Crumbley, but not for James Embrescia. In its earlier decision, the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire job applicants Crumbley and Embrescia because of their union support, and violated Section 8(a)(1) by engaging in photographic surveillance of protected concerted employee picketing. The court enforced the Board's findings that the Respondent engaged in misconduct by its surveillance and hiring Orin Lemin over Crumbley and Embrescia, but it denied enforcement of the finding that the Respondent discriminated against Crumbley or Embrescia when it hired Joseph Gelski. The court remanded the case to the Board to determine which of the two unsuccessful applicants should be made whole. [HTML] [PDF]

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]