NLRB Decisions - 2000 January-June

The Board remanded two refusal-to-hire cases to the judge for further consideration in light of FES, 331 NLRB No. 20.

Charges filed by Electrical Workers IBEW Local 24; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Baltimore, May 22-25, and 31, and June 1 and 13-15, 1995. Adm. Law Judge William F. Jacobs issued his decision July 12, 1996.

Gary Lee Lloyd d/b/a Lloyd Painting Company (31-CA-23898; 331 NLRB No. 79) Hesperia, CA June 30, 2000. The Board agreed with the administrate law judge's finding that the Respondent did not unlawfully interrogate employees and discharge employee Timothy Golding; accordingly, it dismissed the complaint. [HTML] [PDF]

Charge filed by Painters District No. 36; complaint alleged violation of 8(a)(1) and (3). Hearing at Los Angeles, December 6, 1999. Adm. Law Judge Gerald A. Wacknov issued his decision March 3, 2000.

E & L Transport Company, L.L.C. (7-CA-39017, 39029; 331 NLRB No. 83) Woodhaven, MI June 30, 2000. The Board affirmed the administrative law judge's finding that the Respondent promulgated an "overly broad" general rule, prohibiting employees from wearing union buttons on their work uniforms, for unlawful retaliatory reasons, in violation of Section 8(a)(1) of the Act. However, the Board found merit to the General Counsel's exception to the judge's finding that evidence of "special circumstances" justifies a prohibition against the Respondent's employees wearing union insignia on their coveralls while loading and unloading vehicles. Given the Respondent's unlawful motivation, the Board declared "it is immaterial that the Respondent might be able to demonstrate 'special circumstances' that would justify a narrower rule restricting drivers' wearing of union insignia on their coveralls only during the loading or unloading process." On this point, Member Brame said in a footnote he would agree with the judge if the Respondent subsequently promulgated such a narrower rule in order to prevent personal injury and vehicle damage. [HTML] [PDF]

Charges filed by Donald L. Dunsmore and Joe M. Renedo, individuals; complaint alleged violation of Section 8(a)(1). Hearing at Detroit on June 4-6, 1997. Adm. Law Judge Wallace H. Nations issued his decision January 9, 1998.

Raven Services Corp. d/b/a Raven Government Services, Inc. (16-CA-18516, et al.; 331 NLRB No. 84) Fort Worth, TX June 30, 2000. Affirming the administrative law judge, the Board held that the Respondent unlawfully withdrew recognition from the Union and that an affirmative bargaining order with its temporary decertification bar is necessary as a remedy, citing Caterair Intl., 322 NLRB No. 64 (1996). The Board pointed out that the Respondent also had refused to bargain with the Union following a lengthy impasse in bargaining over an initial contract by refusing the Union's requests for relevant and necessary information, unilaterally eliminating job classifications, changing wage rates, and implementing a shift differential and training program, and bypassing the Union and dealing directly with unit employees on these and other terms and conditions of employment. It further noted that the evidence in this case failed to establish that the Union had ever lost its majority status. [HTML] [PDF]

Charges filed by Operating Engineers Locals 826 and 351; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Fort Worth, September 15, 1997. Adm. Law Judge Lawrence W. Cullen issued his decision December 11, 1997.

Metal Container Corp. (2-CA-28303, 28917; 331 NLRB No. 76) New Windsor, NY June 30, 2000. The Board held, in agreement with the administrative law judge, that the Respondent discharged Steven Wilson because of his activities for the Steelworkers in violation of Section 8(a)(3) and (1) of the Act. The Board indicated it was administratively advised that Wilson has reached a settlement with the Respondent regarding his reinstatement and backpay, and has declined an offer of reinstatement. Any issues regarding the settlement and reinstatement offer, the Respondent's reinstatement and backpay obligations in light of the offer, and the Respondent's defenses to any reinstatement obligations, may appropriately be addressed in compliance, the Board noted. The judge dismissed, with Board approval, allegations that the Respondent unlawfully discharged Kurt Bauerle and Peter Murray because of their union activities. The judge found that the General Counsel established a prima facie case. He found also that the Respondent showed that it would have discharged Murray for poor performance, and Bauerle for threatening another employee, his persistence in continuing a confrontation, and his insubordinate conduct. [HTML] [PDF]

Charges filed by Steven Wilson, Kurt Bauerle, and Peter Murray, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, Dec. 18-19, 1997 and March 9-11, 1998. Adm. Law Judge Steven Davis issued his decision Nov. 12, 1998.

The Waldinger Corp. (10-CA-30575; 331 NLRB No. 70) Smyrna, GA June 30, 2000. Members Fox and Liebman, with Member Hurtgen dissenting, agreed with the administrative law judge that Plumbers Local 72 obtained valid authorization cards from a majority of unit employees, that the cards were not tainted by supervisor Peterson's involvement in a union meeting at which employees signed cards authorizing the Union to represent them, and that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition 10 days after it voluntarily recognized the Union as its employees' 9(a) bargaining representative and by making unilateral changes. [HTML] [PDF]

Charge filed by Plumbers Local 72; complaint alleged violation of Section 8(a)(1) and (5). Hearing held June 24, 1998. Adm. Law Judge Lawrence W. Cullen issued his decision July 16, 1998.

Masiongale Electrical-Mechanical (25-CA-25119, et al.; 331 NLRB No. 67) Muncie, IN June 30, 2000. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by restricting the work activities and work area of Jack Neal Jr. and discharging Jeffrey Jehl and Anthony Bane; and that the Respondent violated Section 8(a)(1) by: interrogating employees, threatening them with violence, engaging in surveillance of employees' union activities, isolating certain employees because they engaged in union activities, requiring applicants to be interviewed by a private investigator, and informing its employees that they were prohibited from discussing the union and distributing union literature. The Board remanded the complaint allegation that the Respondent violated Section 8(a)(3) and (1) by refusing to employ or consider for hire 20 union plumber applicants to the judge in light of its decision in FES (A Division of Thermo Power), 331 NLRB No. 20, setting forth the framework for analysis of refusal-to-hire and refusal-to-consider violations. [HTML] [PDF]

Charges filed by Plumbers Locals 172 and 661; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Muncie, Aug. 24-26, 1998. Adm. Law Judge Bruce D. Rosenstein issued his decision Jan. 15, 1999.

Eddy Potash, Inc. (28-CA-13207, et al.; 331 NLRB No. 71) Carlsbad, NM June 30, 2000. Affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by: (1) bargaining to impasse over its proposal for 12-hour shifts for underground workers, an unlawful subject of bargaining in the circumstances of this case; (2) locking out its employees in support of its unlawful bargaining demand; and (3) implementing its final proposal to Electrical Workers (IBEW) Local 611 and Machinists Local 1265, which included the 12-hour shift proposal for underground workers. The Board modified the judge's recommended remedy and required the Respondent to rescind the unlawfully implemented 12-hour shift and to make whole employees for any losses suffered as a result of the unlawful implementation. The Respondent mines potash in Carlsbad pursuant to a mineral lease agreement with the U.S. Department of Interior that provides for "a restriction of the work day not to exceed eight hours in any one day for underground workers except in cases of national emergency." In addition, the Mineral Lands and Mining Act of 1920, 30 U.S.C. §181 et seq. (the 1920 Act), prohibits a 12-hour shift at lands leased from Interior. The judge found that the 1920 Act remains in effect and is not superseded by New Mexico law which allows employees to work up to 16 hours in a day. [HTML] [PDF]

Charges filed by Electrical Workers (IBEW) Local 611 and Machinists Local 1265; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Carlsbad on Jan. 21, 1999. Adm. Law Judge Mary Miller Cracraft issued her decision April 19, 1999.

Electro-Flyte, Inc. (3-CA-21918, 22205; 331 NLRB No. 82) Syracuse, NY June 30, 2000. The Board found that the October 12, 1999 letter filed by the Respondent, acting pro se, adequately denies or sets forth a defense to the complaint allegations that it unduly delayed in providing the information requested in the Union's March 18 and April l, 1999 letters. It therefore denied the General Counsel's motion for summary judgment as to amended consolidated complaint paragraph 9(e) and paragraph 14 to the extent that it pertains to paragraph 9(e); and remanded the proceeding to the Regional Director to arrange a hearing before an administrative law judge limited to the allegations. [HTML] [PDF]

The Board found however that the Respondent's October 12 letter has not placed into dispute the remaining alleged violations contained in the complaint (paragraphs 9(a), (b), or (d) (as the latter pertains to paragraphs. 9(a) and (b)). It granted the General Counsel's motion for summary judgment as to those allegations in the absence of good cause being shown for the Respondent's failure to file a timely answer to the amended complaint, and held that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Steelworkers.

In addition to requiring the Respondent to bargain with the Union over the effects of its decision to close its Syracuse, New York facility on its employees, the Board ordered limited backpay and that the Respondent make whole the unit employees by making all contractually required contributions to the appropriate employee benefits funds that it failed to make since about May 25, 1999. It ordered the Respondent to supply the Union with the information requested in the October 18 and 21 letters, and to mail a copy of an attached notice to the Union and to the last known addresses of its former employees. The Board declined to include in its order the General Counsel's proposed requirement that the Respondent submit copies of the necessary backpay records at the office designated by the Board or its agents, finding that the issue of whether the change should be made in the Board's standard order language should be addressed after full opportunity for briefing by affected parties and that this is therefore not an appropriate case in which to make that determination.

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment Jan. 20, 2000.

The Aerospace Corporation (31-RC-7654; 331 NLRB No. 74) El Segundo, CA June 30, 2000. The Board affirmed the Regional Director's decision and direction of election, finding appropriate the petitioned-for unit of maintenance employees in the Facilities Services Section of the Employer's Facility Department in El Sequendlo, California. The Employer operates a research and development (R&D) facility in El Segundo, California, in support of national space programs. Its two main customers are the U.S. Air Force and the National Reconnaissance Office. The Employer employs a total of 2,500 employees at its El Segundo facility. The Auto Workers seeks to represent a unit of 41 maintenance employees in the Facilities Services Section (FSS) of the Employer's Facility Department. [HTML] [PDF]

The Employer contended that Board precedent mandates facility-wide units in the research and development industry and that the only appropriate unit is a facility-wide unit consisting of 165 shop and service, technical support, and office support (plant clerical) employees. The Board disagreed, noting that the Petitioner here seeks a narrow maintenance unit and that in each of the relevant cases, the union sought a broad production and maintenance (and sometimes technical) unit, and the question before the Board was whether other employees, including some technicals, did similar work under similar terms and conditions of employment, and thus also should be included. "It is Board policy to find separate maintenance department units appropriate when petitioned for in the absence of a more comprehensive bargaining history, where the factors of the case demonstrate that the maintenance employees have the requisite community of interest," the Board said. It found, as did the Regional Director, that, under a traditional community-of-interest analysis, the petitioned-for maintenance employees constitute a clearly identifiable, functionally distinct group and therefore constitute an appropriate unit.

Southern Pride Catfish (10-CA-28960; 331 NLRB No. 81) Greensboro, AL June 30, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Pamela Witherspoon because of her union activity; and violated Section 8(a)(1) by creating the impression of surveillance of employees' union activities and interrogating Witherspoon. The Board found that the interrogation of Witherspoon by supervisor Doria Lee and Freezer supervisor Greg Crawford occurred against a background of threats to discharge employees for union support, as well as other serious threats to move or close the plant or to reduce wages if employees were to choose Food and Commercial Workers Local 1996; that the threats emanated from an atmosphere of interference and coercion; and that the nature of the information sought from Witherspoon-why she wanted the Union-was particularly coercive in this context. The Board noted that Lee made known that union supporters were going to be discharged on the Monday following the election held on May 28-29, 1996 in Case 10-RC-14631 and, at the Respondent's behest, was writing down the names of employees who, like Witherspoon, wore union T-shirts. The Board added that Crawford, a higher-level supervisor, was the person directly responsible for Lee creating the list of employees who wore union T-shirts. [HTML] [PDF]

The judge found, with Board approval, that the Respondent also violated Section 8(a)(1) by discharging Supervisor Lee because her subordinates continued to wear union T-shirts and because she was, in the Respondent's view, ineffective in persuading her subordinates to reject the Union and to abandon the expression of their Section 7 rights. The Board agreed with the judge that an employee walkout in protest of Lee's discharge constituted protected concerted activity, that the Respondent discharged the employees, and that the discharges violated Section 8(a)(1). The Board noted that even if the Respondent had acted lawfully in discharging Lee, her subordinates' walkout would still constitute protected conduct under the standards of NLRB v. Oakes Machine Corp., 897 F.2d 84 (2d Cir. 1990). Like the judge, the Board found that Steven C. Moore, the pastor of a local church, was acting as an agent of the Respondent by meeting with employees, and that his comments to employees respecting the outcome of the election constituted threats of plant closure in violation of Section 8(a)(1).

Charge filed by Food and Commercial Workers Local 1996; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tuscaloosa on May 28-29, 1996. Adm. Law Judge Howard I. Grossman issued his decision March 10, 1997.

Overnite Transportation Co. (11-RC-6258; 331 NLRB No. 85) Gaffney, SC June 30, 2000. The Board found appropriate a unit of all dockworkers, dock leadmen, jockeys (hostlers), facility maintenance employees, and janitors, excluding drivers, mechanics, mechanic leadmen, and their helpers (check bay attendants, tire changers and parts clerks), working at the Employer's service center in Gaffney, South Carolina. The Board permitted the "OS&D (overage, shortage, and damage)" clerks, the operations clerks, and the shop clerk evidence to vote under challenge because the evidence was insufficient to determine whether they are plant or office clericals. Teamsters Local 28 is the petitioning union. The Regional Director found that the petitioned-for unit of approximately 159 dockworkers and 22 jockeys was not appropriate and that the unit must also include city drivers, road drivers, check bay attendants, tire changes, maintenenace workers, janitorial workers, OS&D clerks, and operations clerks or a service center unit of approximately 351 employees, excluding only mechanics and mechanic leadmen. The Board reversed the Regional Director's decision and vacated his direction of election, concluding that the smallest appropriate unit that includes the petitioned-for dockworkers and jockeys must also include substantially all employees who are unskilled and work exclusively at the service center. [HTML] [PDF]

Medic One, Inc. (9-CA-36620-1, 9-RC-17204; 331 NLRB No. 56) Cincinnati, OH June 26, 2000. Affirming the administrative law judge's recommendation to set aside the election held in Case 9-RC-17204 on March 12, 1999, the Board noted that even absent Supervisor Neff's statement that he would "kick [employees'] asses" if they voted for the Union, the remaining 8(a)(1) violations would warrant setting aside the election. The Respondent threatened employees with loss of wages and benefits if they selected the Union and informed them that regularly scheduled wage increases would be postponed until after the union campaign and election and that they would be required to pay for damages to its vehicles arising out of accidents. In the absence of exceptions, the Board adopted pro forma the judge's recommendation to overrule the Excelsior list objections. No exceptions were filed to the judge's dismissal of the 8(a)(3) allegations involving the suspension of an employee and his dismissal of the 8(a)(1) allegations involving Supervisor Neff's interrogation of employees. The Board remanded Case 9-RC-17204 to the Regional Director to conduct a new election. [HTML] [PDF]

Charge filed by EMTs and Paramedics, NAGE-SEIU; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cincinnati, May 17-18, 1999. Adm. Law Judge Earl E. Shamwell Jr. issued his decision Oct. 26, 1999.

Auto Workers Delphi/Delco East Local 651 (General Motors Corp.) (7-CB-10955, 10964; 331 NLRB No. 59) Flint MI June 26, 2000. The Board, finding that the General Counsel failed to establish that the Respondent failed to file a grievance in bad faith or for discriminatory reasons in breach of its duty of fair representation, reversed the administrative law judge and dismissed the complaint allegation that the Respondent violated Section 8(b)(1)(A) of the Act by failing to file a grievance on behalf of Corretha Montague concerning the Employer's alleged harassment for her dissident union activity. The Board agreed with judge that the Respondent violated Section 8(b)(1)(A) by threatening members with a lawsuit for engaging in activities protected by Section 7 of the Act. [HTML] [PDF]

Charges filed by Corretha Montague and Troy Alexander Jr., individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Flint on Dec. 18, 1996. Adm. Law Judge Wallace H. Nations issued his decision March 24, 1997.

The Mead Corporation, Fine Paper Division (9-CA-32901, 33447; 331 NLRB No. 66) Chillicothe, OH June 28, 2000. The Board upheld the administrative law judge's findings that the Respondent violated the Act by maintaining rules that prohibit employees from soliciting for purposes protected by Section 7 of the Act during nonworking time or from distributing literature protected by Section 7 during nonworking time in nonworking areas of its Chillicothe Mill; and by refusing to provide certain information to Paperworkers Local 731. The Board affirmed the judge's dismissal of allegations that the Respondent unlawfully threatened chief union steward Butch Bost with discipline for advising an employee to disobey two management directives and unlawfully disciplined Bost for his behavior during a meeting held on November 29, 1995 by Superintendent Wittkugle with three unit employees and their immediate supervisor Johnson. Bost attended the meeting at Wittkugle's invitation to the Union to provide a representative. [HTML] [PDF]

Like the judge, the Board did not pass on whether the November 29 meeting was within the ambit of NLRB v. Weingarten, 410 U.S. 251 (1975), i.e., whether it was an investigatory interview in which employees would reasonably expect that discipline might result. The judge found, and the Board agreed, that even assuming arguendo that it was, Bost's conduct was unprotected by the Act. The judge concluded that Wittkugle began the meeting by discussing the deficiencies of the three employees (Atwood, Buskirk, and Francis). Buskirk smiled. Wittkugle took a step toward Buskirk while heatedly saying "what are you laughing at? This isn't a laughing matter." Bost jumped in and told Wittkugle that "an employee has the right to snicker," and that "if anyone had a personality problem, an attitude problem," it was Wittkugle. Bost continued by calling Wittkugle "the dumbest supervisor I've ever worked for in my life." Wittkugle told Bost that he was disrupting the meeting and to leave the shop. Bost refused. Wittkugle again ordered Bost to leave, saying that he would have another union representative join the meeting. Bost refused to leave. Wittkugle then gave Bost "a direct order" to leave. Bost refused.

Charges filed by Paperworkers Local 731; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Cincinnati on Dec. 5, 1995. Adm. Law Judge Steven J. Gross issued his decision Aug. 8, 1996.

Hadco Aluminum & Metal Corp. (29-CA-22072; 331 NLRB No. 69) Jamaica, NY June 28, 2000. No exceptions were filed to the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Ronald Wright and Steven Jordan because of their activities for Teamsters Local 707. The Board agreed with the judge's recommendation that backpay for Wright should be tolled as of the date of his threat to employee Persuad. Members Hurtgen and Brame declined to adopt, however, the judge's admittedly arbitrary conclusion that the threat was made on July 6, 1998 and modified paragraph 2(b) of his recommended Order to leave to compliance proceedings determination of the date on which the threat was made. Chairman Truesdale would adopt the judge regarding this issue, noting that no party has excepted to the July 6, 1998 date and that referring the matter to compliance proceedings would unnecessarily prolong the litigation. [HTML] [PDF]

Charge filed by Teamsters Local 707; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn, Oct. 7-8, 1998. Adm. Law Judge Raymond P. Green issued his decision Dec. 11, 1998.

Martech Medical Products, Inc. d/b/a Martech MDI (4-CA-27466; 331 NLRB No. 57) Harleysville, PA June 28, 2000. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by telling employees that they had better stop thinking about Teamsters Local 384, threatening them with plant closure and job loss, coercively interrogating employees, creating the impression of surveillance of employees' union activities, and discrminatorily prohibiting "chit chat" about the Union. Members Fox and Liebman found, contrary to their dissenting colleague, that Supervisor Kennedy's statement that she had "heard that there was a list circulating with 80 names," to employees Julia Croissett and Dottie O'Connell, the latter of whom the Respondent knew to be a major union supporter, clearly met the Board's test set forth in United Charter Service, 306 NLRB 150 (1992), for determining whether an employer has created an impression of surveillance. Member Brame would dismiss the 8(a)(1) allegations involving the creation of an impression of surveillance of employees' union activities, finding that Kennedy's statement about "a list" indicates that she was commenting on a rumor rather than suggesting a spy operation and surveillance by the Respondent. He agreed that the judge properly found that the Respondent unlawfully interrogated employees Croissett and O'Connell but only for the reasons stated in his partial concurrence and dissent. [HTML] [PDF]

The Board affirmed the judge's dismissal of the 8(a)(3) and (1) allegation that on September 4, 1998, the Respondent engaged in a retaliatory mass layoff. Turning to the judge's findings that the Respondent selected specific employees for the layoff, the Board agreed that the Respondent violated Section 8(a)(3) and (1) by laying off Dottie O'Connell, Kathleen Harper, Ruth Bickings, and Patricia Tracey. It said in reversing the judge and finding that the Respondent also violated Section 8(a)(3) and (1) by laying off Sue McNamara: "Given the Respondent's antiunion animus toward Harper, Tracey, and McNamara's sister, Bickings, the judge's finding that their layoffs were unlawful, the timing of the layoffs, we find that the inclusion of McNamara as a part of a terminated group of longtime, veteran employees who ate lunch together every day in the company lunchroom, supports an inference that the Respondent also had suspicions regarding McNamara's union activity or support." In adopting the 8(a)(3) violation based on Haper's layoff, Member Brame found it unnecessary to rely on the judge's discussion about the cost effectiveness of selecting more or less senior employees for layoff. And, in adopting the judge's findings that the Respondent unlawfully laid off O'Connell, Member Brame relied on the judge's credibility findings on demeanor grounds only. The judge discredited Stu Krompetz' and Scott Nicholas' denials of knowledge of union activities on both demeanor and nondemeanor grounds.

Charge filed by Teamsters Local 384; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, Feb. 16-18, 1999. Adm. Law Judge Thomas R. Wilks issued his decision Sept. 30, 1999.

Willamette Industries (25-CA-25290; 331 NLRB No. 73) Indianapolis, IN June 29, 2000. The Board agreed with the administrative law judge that on March 3, 1997, the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Graphic Communications Local 17-M, which had represented the production and maintenance employees at the Respondent's plant since 1979. Since March, the Respondent has refused to meet with the Union to negotiate a renewal contract, and it cancelled the bargaining session that had been scheduled to commence during the week of March 10 before the parties' old contract was due to expire on March 15, 1997. [HTML] [PDF]

The Respondent argued that it had no bargaining obligation because it had a good-faith doubt of the Union's continued majority status based on a 35-35 tally of ballots that issued in a Board decertification election held among the unit employees on February 7, 1997. The Union filed timely objections to the election and a hearing was held on March 14. The hearing officer found that the Respondent had engaged in objectionable conduct on January 7 and 23, 1997 by conditioning the grant of a 401(k) plan benefit to employees on union decertification and recommended that the election be set aside. The Respondent waived its right to appeal the hearing officer's report and signed a written waiver statement and a Stipulated Election Agreement. On April 18, 1997, the Board adopted pro forma the hearing officer's recommendations and set aside the February 7 election.

The Board agreed with the judge that the Respondent failed to show that either the union did not in fact enjoy majority support or that it had a good-faith doubt concerning the union's majority status when it cancelled the March bargaining session and refused to meet with the Union to negotiate a new contract. But, it based its finding of no good-faith doubt concerning the Union's majority status on the following: The sole basis for the Respondent's refusal to bargain is the tie vote tally in the decertification election and the Respondent voluntarily waived its right to appeal the hearing officer's findings and recommendation to set aside the election results based on conduct found to be objectionable. "Given this waiver, the results of the tally of ballots stood tainted by the Respondent's own objectionable conduct in conditioning the grant of an important 40l(k) benefit to employees just a few weeks before the election, and thus the election results could not serve as a valid indicator of employee sentiment," the Board said.

Charge filed by Graphic Communications Local 17-M; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Indianapolis, June 30 and July 1, 1997. Adm. Law Judge C. Richard Miserendino issued his decision June 2, 1998.

U.S. Tsubaki, Inc., Roller Chain and Automotive Divisions (1-UC-710; 331 NLRB No. 47) Holyoke and Chicopee, MA June 13, 2000. The Board found that the Regional Director erred in failing to apply Gitano Distribution Center, 308 NLRB 1172 (1992), and that, under Gitano, the historical collective-bargaining unit of production and maintenance employees at the Employer's plant in Holyoke should be clarified into two separate units of employees located at its Holyoke and Chicopee facilities, respectively. Since all of the unit employees at Chicopee are transferees from the original bargaining unit, the Board held that Steelworkers Local 7912 continues to represent the employees in both the Holyoke and the Chicopee bargaining units. The Employer, a manufacturer of roller chains, engineering chains, sprockets, power transmission units, and automotive timing chains, had housed its two independent divisions (Roller Chain and Automotive) at the Holyoke facility. Employees of both divisions were included in the same bargaining unit covered by the same collective-bargaining agreement. In November 1996, the Employer moved the Automotive Division to a new facility approximately 5 miles away in Chicopee. In Gitano, the Board held that when an employer transfers a portion of its employees at one location to a new location, the new facility is presumptively a separate unit. [HTML] [PDF]

The Board, in finding no merit to the Union's contention that Gitano is limited to situations involving a merger of represented with unrepresented employees, wrote:

In Armco Steel Co., 312 NLRB 257, 259-260 (1993), the Board rejected the contention that Gitano limited unit clarification proceedings to a determination of the inclusion or exclusion of relocated employees vis-à-vis the unit from which they came and applied the Gitano analysis to determine the appropriateness of a separate unit of the relocated employees. ...Thus, in Armco, the Board relied heavily on the expediency and efficiency of utilizing unit clarification proceedings in resolving unit scope and majority status issues. These concerns are paramount even in the absence of unrepresented employees. Moreover, in Mercy Health Services, 311 NLRB 367 (1993), the Board applied a Gitano analysis where two registered nurses were transferred to an off-site location from the main hospital in order to create a new dialysis treatment unit. There were no unrepresented employees at this new facility. Accordingly, we find that the Gitano analysis is appropriate to determine whether the Automotive Division at the Employer's Chicopee facility is a separate, appropriate unit.

The Board noted these factors in finding that the presumption of a separate, appropriate unit at the Chicopee facility has not been rebutted. The two divisions have operated independently since the Automotive Division moved to Chicopee; they have separate managerial hierarchies, separate training and quality control procedures and separate overtime and vacation seniority; their managers and supervisors have no role in each other's discipline or hiring; each division handles union grievances separately, with guidance from the corporation's central human resources department, and there is limited interchange between the two divisions. Although there is a history of common collective-bargaining since the creation of the Automotive Division in 1989 and employees of both divisions are subject to the same collective-bargaining agreement, have almost identical terms and conditions of employment, and can bid on job openings in the other division, the two divisions were individually represented in negotiations with the Union even prior to the relocation.

Midwestern Personnel Services (25-CA-25503-2, et al.; 331 NLRB No. 50) Olive Branch, MI and Louisville, KY June 21, 2000. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate unfair labor practice strikers immediately upon their unconditional offer to return to work; violated Section 8(a)(2) by assisting and supporting Teamsters Local 836/100 and recognizing it in the absence of an uncoerced majority of employees having designated the Union as their collective-bargaining representative; and violated Section 8(a)(1) by threatening employees with loss of employment if they did not choose Teamsters Local 836/100 to represent them and threatening them with discipline and discharge for engaging in protected concerted activity. [HTML] [PDF]

The Board rejected as untimely the Respondent's argument, raised for the first time in its brief to the Board, that its contract with Teamsters Local 836 was a valid and enforceable 8(f) prehire contract. It noted that Section 8(f) of the Act, by its terms, applies only to employers engaged in the building and construction industry. The Respondent's president, Samuel Ware, testified without contradiction that the Respondent is not an employer primarily engaged in the construction industry. In rejecting the Respondent's argument that the unfair labor practice strike was converted to an economic strike by its signing of an informal settlement agreement on February 18, 1998, the Board noted that prior to the submission of the March 27, 1998 unconditional offer to return to work there had been no notice posting, no complete remedying of the pending unfair labor practices, and no assurances given to the employees that they would not be discharged for striking.

Charges filed by Teamsters Local 215; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing at Evansville, Sept. 20-21, 1999. Adm. Law Judge Jane Vandeventer issued her decision Feb. 9, 2000.

Union Carbide Corp. (9-CA-36332; 331 NLRB No. 54) South Charleston, WV June 21, 2000. The Board agreed with the administrative law judge that the Respondent unlawfully discharged Rex A. King for pursuing his contract rights, i.e., attempting to find out his continuous service date (CSD), which is used to determine eligibility for contract benefits including vacation and severance. The Board found to be distinguishable Carolina Freight Carriers Corp., 295 NLRB 1080 (1989), relied on by the Respondent, where the Board found that an employee's behavior in asserting a contract right constituted insubordination because he persisted in challenging his supervisor's direct order to clock out. Agreeing with the judge that King's conduct was not so "out of line" as to remove him from the protection of the Act, the Board concluded that King's behavior was "at most rude and disrespectful." See Severance Tool Industries, 301 NLRB 1166 (1991), enfd. 953 F.2d 1384 (6th Cir. 1992). [HTML] [PDF]

Charge filed by Rex A. King, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Charleston on May 11, 1999. Adm. Law Judge William N. Cates issued his decision June 9, 1999.

Operating Engineers Local 3 (32-CB-4847; 331 NLRB No. 60) Alameda, CA June 21, 2000. The administrative law judge found, and the Board agreed, that the Union violated Section 8(b)(1)(A) of the Act by threatening to discipline, and disciplining, members John Hillman, Ruben Serrano, David Knapp, and Preston Pope because they continued to work for a nonunion employer, Specialty Crushing, Inc. Specifically, the judge found that the Respondent's threats and discipline were unlawful efforts to impose representation on a unit of employees who had rejected the Respondent in a Board-conducted election held in June 1997. The Respondent had no express rule prohibiting members from working nonunion at the time that it disciplined Knapp, Hillman, Serrano, and Pope, but it enacted such a rule on October 12, 1997, after the instant unfair labor practice charge was filed. The Respondent did have a rule that specified that members must "conform and abide by the hours, wages, and conditions of employment provided for in agreements negotiated by this Local Union." The Board wrote: [HTML] [PDF]

"It is well settled that unions are prohibited under Section 8(b)(1)(A) from coercing employees in the exercise of rights guaranteed by Section 7 of the Act. Although the proviso to Section 8(b)(1)(A) permits labor organizations to prescribe their own rule regarding the acquisition and retention of membership, the scope of the proviso is limited. As set forth in Scofield v. NLRB, 394 U.S. 423, 430 (1969), a union may enforce properly adopted internal rules against its members only where those rules: (1) reflect a legitimate union interest; (2) impair no policy Congress has imbedded in the labor laws; and (3) are reasonably enforced against union members who are free to leave the union and escape the rule. Here, the Respondent has not satisfied the third element of the Scofield test. Thus, without deciding whether the Respondent had a properly adopted rule prohibiting members from working for a nonunion employer, we agree with the judge that--even were there such a rule--it was not reasonably enforced against the four members. Rather, that rule was disparately enforced against these members."

In agreeing that the Respondent's discipline of the four members was not protected under Scofield principles, Members Hurtgen and Brame also noted that the Respondent did not rely on its rule cited above at the time of the events here.

Charge filed by Specialty Crushing, Inc.; complaint alleged violation of Section 8(b)(1)(A). Hearing at Oakland on Jan. 26, 1998. Adm. Law Judge Jay R. Pollack issued his decision May 5, 1998.

Audubon Regional Medical Center (9-CA-31725-1, et al., 9-RC-16332; 331 NLRB No. 42) Louisville, KY June 22, 2000. The Board affirmed the administrative law judge's findings that the Respondent engaged in extensive and serious unfair labor practices in response to an organizing drive by the Nurses' Professional Organization conducted among the Respondent's registered nurses (RNs) and that the possibility of erasing the effects of such conduct and of conducting a fair rerun election by the use of traditional remedies alone are unlikely. The Board decided however that a Gissel bargaining order remedy is unwarranted and concluded instead that employee rights can best be served by directing a new election but also adopting the judge's recommended broad cease-and-desist order and ordering certain additional special remedies, including the submission of the names and addresses of current employees to the Union, a public reading of the notice to employees at Audubon's facility, and reasonable access to the Respondent's bulletin boards. Chairman Truesdale would not impose the special remedies requiring reading of the notice and reasonable access to bulletin boards [HTML] [PDF]

The Board wrote in granting the Respondent's motions to reopen the record to include evidence on managerial turnover and the transfer of company ownership and management from Columbia/HCA Heathcare Corporation to Alliant Health System, Inc. (Alliant):

"We would normally at least consider issuing a bargaining order in the circumstances of this case. However, the unchallenged evidence submitted by the Respondent shows that none of the supervisory or managerial employees who perpetrated the unfair labor practices is still associated with Audubon in any capacity. . . . Given this unrefuted contention that there has been 100-percent turnover in management, and the long delay of the case here at the Board, we recognize that a bargaining order would likely be unenforceable in the courts. . . . Accordingly, rather than engender further litigation and delay over the propriety of a bargaining order, we believe employee rights would better be served by proceeding directly to a second election."

The Board reversed the judge's findings that the Respondent violated Section 8(a)(5) and (1) by failing to recognize the Union and making unilateral changes since it did not find that a bargaining obligation arose on the basis of the Union's card majority. It affirmed the judge's findings that the Respondent violated Section 8(a)(1), (3), and (4) by, among other things, soliciting grievances accompanied by promises to adjust them; threatening employees with plant closure or sale, job and benefit loss, discrimination, and discipline; discriminating against employees because of their union and/or protected concerted activities; issuing an employee a low evaluation because she joined, supported, or assisted the Union; and assigning an employee to second shift, issuing an employee a low evaluation, and denying employees full-time patient care leader positions, all because they gave testimony to the Board in the form of an affidavit and for testifying on behalf of the Board in Cases 9-CA-31725-1 and 32276. The Board remanded Case 9-RC-16331 to the Regional Director to conduct a second election. The Union lost the election held on March 3 and 4, 1994 by a 336-to-220 vote.

Charges filed by Nurses' Professional Organization; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Louisville, Sept. 19-22 and 26-29, Nov. 6-9, and Dec. 4-8, 1995, and Feb. 12, 1996.

St. George Warehouse, Inc. (22-CA-23223, et al.; 22-RC-11703; 331 NLRB No. 55) Kearny, NJ June 23, 2000. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Leonard Sides and Jesse Tharp because of their membership in, and activities on behalf of Teamsters Local 641; and violated Section 8(a)(1) by creating the impression that its employees union activities were under surveillance and soliciting grievances from them about working conditions to induce them not to select the Union as their collective-bargaining representative. The Board directed the Regional Director to open and count the challenged ballots cast by Sides and Tharp in the election held in Case 22-RC-11703 and to issue a revised tally of ballots and the appropriate certification. The original tally of ballots shows 16 for and 17 against, the Union, with 4 challenged ballots. Pursuant to a stipulation, the challenges to 2 ballots were sustained. [HTML] [PDF]

The Board found it unnecessary to rely on the judge's application of the "small shop theory" to establish the Respondent's knowledge of Tharp's union activities. In addition, Member Brame found it unnecessary to rely on the judge's findings that the Respondent did not have to pay for Sides' miscounting mistakes, in order to find that the Respondent violated Section 8(a)(3) and (1) when it discharged Sides. The Board concluded, based on Paul Smith's agency status, and without regard to his supervisory status, that the record sufficiently demonstrates that his attendance at a union meeting in his capacity as the Respondent's agent created the impression of surveillance. It found it unnecessary to pass on the judge's finding that Smith was a supervisor within the meaning of Section 2(11) of the Act.

No exceptions were filed to the judge's findings that the Respondent violated Section 8(a)(1) by interrogating its employees about their union activities, promising increased benefits and improved terms and conditions of employment to induce them not to select the Union as their collective-bargaining representative; and promulgating and distributing to its employees an overly broad no-solicitation, no-distribution clause; that the Respondent violated Section 8(a)(3) and (1) by increasing the volume of written discipline given to employees after it became aware of employees' union activities and issuing written warnings to employees; and that the Respondent did not unlawfully discriminate against Tharp by assigning him heavier workloads.

Charges filed by Teamsters Local 641; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Newark, July 28 and Aug. 4, 6, 10, and 11, 1999. Adm. Law Judge Howard Edelman issued his decision Feb. 8, 2000.

Kmart Corp. (11-CA-17778; 331 NLRB No. 58) Greensboro, NC June 21, 2000. The Board affirmed the administrative law judge's dismissal of the complaint, concluding that the parties' collective-bargaining agreement provided for second and third year wage increases for top out employees only, and that, consequently, the Respondent did not violate the Act by failing to grant across-the-board increases on July 28, 1997. [HTML] [PDF]

In 1996, the Respondent and UNITE reached agreement on their first collective-bargaining agreement, which was effective from July 28, 1996 through July 27, 1999. Appendix A specifies the wage rates for all unit jobs, varying according to length of employment, during the first year of the contract. For the second and third years of the contract, the agreement specifies only the wage rate for "top out" employees. The term refers to those employees who have reached the highest level of pay for their job based on length of service in that position. The Respondent's employees top out in their jobs at 2 years. The chart does not specify raises in the second and third years for other unit employees. In July 1997, the Respondent granted a 75-cent wage increase to top out employees, but provided no raises to other unit employees. The Union and General Counsel contended that the parties agreed at the bargaining table to an across-the-board wage increase of 75 cents per hour for the second and third years of the contract. The Respondent argued that the contract required second and third year raises for top out employees only. The Board agreed after determining the meaning of the wage chart by examining the literal language of Appendix A, as well as the extrinsic evidence regarding the parties' intent.

Charge filed by UNITE; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Greensboro on June 24, 1998. Adm. Law Judge Pargen Robertson issued his decision Aug. 14, 1998.

United Parcel Service, Inc. (7-CA-41784; 331 NLRB No. 53) Saginaw, MI June 14, 2000. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by, inter alia, orally promulgating an overly broad no-solicitation rule prohibiting employees from distributing literature in non-work or mixed-use areas during nonwork time. In adopting the judge's finding that the Respondent violated Section 8(a)(1) by discriminatorily enforcing its written no-distribution rule when it did not allow employee Dunning to distribute the Convoy Dispatch, a Teamsters for a Democratic Union publication, in the Respondent's package car warehouse area during the prestart worktime, the Board relied on the fact that the Respondent routinely permitted drivers to pass out contest forms, raffle tickets, and golf and fishing flyers at that location. Member Hurtgen relied solely on the judge's finding that the Respondent discriminatorily enforced its no-distribution rule, citing his dissent in United Parcel Service, 327 NLRB No. 65 (1998). However, the Board did not rely on the drivers' solicitation of signatures on get well cards or the collection of money for flowers, etc. because "such conduct is more in the nature of 'solicitation' rather than 'distribution' as was engaged in by Dunning." No merit was found to the Respondent's contention that the distribution of the Convoy Dispatch was a potential "littering hazard" because the Respondent regularly permitted drivers to read non-union related materials that did not cause any disruption to daily operations. [HTML] [PDF]

Charge filed by David Dunning, an Individual; complaint alleged violations of Section 8(a)(1). Hearing at Detroit, MI, Sept. 28-29, 1999. Decision issued by Adm. Law Judge Bruce D. Rosenstein, Jan. 26, 2000.

Waste Management of Washington, Inc. d/b/a Waste Management Northwest (19-RC-13951; 331 NLRB No. 51) Woodinville, WA June 8, 2000. Reversing the Regional Director's Decision and Direction of Election, the Board determined that the single-facility presumption favoring a unit of Port-O-Let employees at the Woodinville location only has been rebutted. Contrary to the Regional Director, the Board found instead that the functional integration of the operations; centralized control over labor relations policies; lack of local autonomy and common supervision of employees at both locations; identical skills, duties, and other terms and conditions of employment; and the evidence of interaction and coordination between the two groups outweighs two factors which would favor the single-facility presumption - the 42-mile distance between the two facilities and the Employer's failure to introduce relevant affirmative evidence demonstrating more than minimal interchange. (The Union is Teamsters Local 174.) [HTML] [PDF]

Health Care Services Group, Inc. (30-CA-14061; 331 NLRB No. 49) Bayside, WI June 13, 2000. The administrative law judge found, and the Board agreed that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain collectively in good faith with the Union. In particular, the judge noted such evidence of bad faith bargaining as Smith's, the Respondent's bargaining agent, lack of authority to commit the Respondent to any proposals and the long delay in raising objections and making counteroffers to Union proposals on which there had been tentative agreement; Smith's failure to show up at several negotiating sessions; and the Respondent's failure to make any proposals until 6 1/2 months after bargaining began. However, the judge found that "[p]ossibly the clearest indication of bad faith and the lack of any intention of reaching agreement with the Union is Respondent's regressive bargaining ... [, which] strongly suggests an intent to prevent the negotiation of a collective-bargaining agreement." The Board found merit in the General Counsel's exceptions and modified the Order to require the Respondent to reinstate the tentative agreements to restore "the status quo between the parties before the unfair labor practices began," citing NLRB v. Beverly Health & Rehabilitation Services, 187 F.3d 769 (8th Cir. 1999), enfg. New Madrid Nursing Center, 325 NLRB 897 (1998). [HTML] [PDF]

Charge filed by Food and Commercial Workers Local 1444; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Milwaukee, WI, April 27, 1998. Decision issued by Adm. Law Judge Arthur J. Amchan, June 10, 1998.

Hogan Transports, Inc. (14-CA-25382; 331 NLRB No. 38) St. Louis, MO June 9, 2000. The Board, in affirming the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by refusing to hire applicant James Powell because of his past membership in, support of, or activities on behalf of the Teamsters, agreed with the judge that the General Counsel met his initial evidentiary burden with respect to the Respondent's refusal to hire Powell and that the Respondent failed to show that it would not have hired Powell even in the absence of his union activity. Wright Line, 251 NLRB 1083 (1980). Specifically, the Board found that the General Counsel established that the Respondent was hiring at the time that Powell applied for employment; that Powell had experience and training relevant to the announced or generally known requirements of the position for hire (over-the-road truckdriver); and that antiunion animus contributed to the Respondent's decision not to hire him. In defense, the Respondent claimed that its deliveries involved interstate away-from-home work unlike Powell's prior tractor-trailer over-the-road driving. It was presumed, but never asked of Powell that he would be unhappy in such work and was thus an "unsuitable candidate," and that he would be demoralized by the severe reduction in his income from about $62,000 annually as an appointed International Union business agent to about $18,000 to $25,000 as a driver hiree. [HTML] [PDF]

Charge filed by James S. Powell Jr., an Individual; complaint alleged violation of Section 8(a)(1). Hearing at St. Louis, June 9-10, 1999. Adm. Law Judge Thomas R. Wilks issued his decision Jan. 3, 2000.

GRB Entertainment, Inc. d/b/a Aardvark Post (31-RC-7551; 331 NLRB No. 41) Sherman Oaks, CA June 13, 2000. Members Fox and Liebman concluded, contrary to the hearing officer and Member Brame, that Senior Staff Editor Roger Bartlett is not a supervisor within the meaning of Section 2(11) of the Act and thus overruled the challenge to Bartlett's ballot and directed that it be opened and counted, along with eight other ballots. If the revised tally of ballots shows that a majority of the valid votes were cast for the Stage Employees International, the Regional Director will issue a certification of representative. If not, the Regional Director will issue a notice of hearing on objections. [HTML] [PDF]

The hearing officer found that Bartlett effectively recommended applicants to the Director of Post Production Jeff Kimes for hire without Kimes' further independent review. The majority disagreed, noting it was undisputed that Bartlett never made a recommendation to Kimes that an applicant be hired or rejected. Rather, Kimes' role in the hiring process, it said, "was limited to testing each applicant's technical skills by conducting editing tests and reporting those results to Kimes." Citing a line of cases where the Board has consistently found that such an assessment of an applicant's technical ability to perform the required work does not constitute an effective recommendation to hire, the majority said that Kimes' acceptance and reliance on Bartlett's technical assessment of applicants "represents a deference to Bartlett's technical expertise, which Kimes acknowledged that he lacked, rather than a delegation of statutory supervisory authority." Having concluded that the Petitioner failed its burden of establishing the Bartlett has the authority to effectively recommend applicants for hire, the majority found no other basis for finding that he is a supervisor given the lack of evidence that Bartlett has the authority to transfer, suspend, lay off, recall, promote, discharge, reward employees, or adjust their grievances. "The facts noted by the hearing officer that Bartlett attended management meetings and that others perceived him to be a supervisor are secondary indicia of supervisory status and, because we have not found any primary indicia of supervisory status, cannot be dispositive to finding that Bartlett is a Section 2(11) supervisor," the majority held. In adopting the hearing officer's recommendation to sustain the challenge to the ballot of Li Po Ching, Members Fox and Liebman relied solely on the finding that Ching was briefly employed before the election as a temporary substitute for a vacationing individual and, thus, sustained the challenge to Ching's ballot on the ground that he was a temporary employee and found it unnecessary to pass on the hearing officer's finding that Ching was a supervisor.

Member Brame, dissenting in part, agreed that the challenge to Ching's ballot be sustained; however, he relied on both grounds given by the hearing officer for his decision, i.e., that Ching was both a temporary employee and a supervisor. He agreed also with the hearing officer that Bartlett is a supervisor within the meaning of the Act and that the challenge to his ballot should be sustained. Member Brame found that Bartlett did more than just test applicants and report the test results to Kimes, noting testimony that Bartlett conducted a thorough interview of an applicant and referred him to Kimes for his "stamp of approval," and that Kimes himself conceded that he had never hired anyone that Bartlett had not recommended as technically capable of performing the job. He found "this testimony to establish effective recommendation, despite Quick's and Kimes' testimony, relied on by the majority, that Kimes retained final approval authority."

Young Broadcsting of Los Angeles, Inc. d/b/a KCAL-TV (31-RC-7773; 331 NLRB No. 46) Hollywood, CA June 13, 2000. Citing Berea Publishing Co., 140 NLRB 516 (1963), the Board affirmed the hearing officer's recommendation to overrule the challenge to the ballot cast by Stephanie Farr, the weekend show producer, in an election held on October 22, 1999 and petitioned for by Electrical Workers IBEW Local 45. The parties stipulated that Farr is a dual function employee, who spends approximately 60 percent of her worktime as a weekday associate producer and approximately 40 percent of her time as a weekend show producer. As an associate producer, Farr was eligible to vote in an election held on September 9, 1999 in Case 31-RC-7766 that resulted in certification of IBEW Local 45 as exclusive collective-bargaining representative of the Employer's newsroom employees. In this case, the hearing officer found that as a weekend show producer, Farr is eligible to vote in the election, where the same Union seeks to represent a separate bargaining unit of show producers. [HTML] [PDF]

In Berea Publishing, the Board held that dual function employees who share a substantial community of interest with full-time employees in a bargaining unit are entitled to the same rights and privileges in the selection of the majority representative. There the Board said "we can perceive no distinction between the part-time employee, who may work for more than one employer, and the employee who performs dual functions for the same employer." 140 NLRB at 519. In this decision, the Board wrote in adopting the hearing officer's recommendation to overrule the challenge to Farr's ballot: "Quite obviously, an individual who works part-time for more than one employer may be eligible to vote in an appropriate unit of each employer's employees. Consistent with Berea Publishing, we see no policy reason why a dual function employee may never vote in two separate units. We need not and do not define here all instances in which it would be appropriate to permit a dual function employee's participation in more than one unit election. We agree with the hearing officer, however, that under the circumstances of this case, where time spent and work performed by a single dual function employee in one job classification is distinct and separate from time spent and work performed in another classification, that employee should be eligible to participate fully in both bargaining units in which she has a substantial interest."

Electronic Data Systems Corp. (3-CA-19975; 331 NLRB No. 52) Rochester, NY June 15, 2000. In agreeing with the administrative law judge that the Respondent did not violate Section 8(a)(1) of the Act when it discharged service representative Nettie Eaton and when he thus dismissed the complaint, the Board found that Eaton solicited employees to engage in a partial work stoppage and that her conduct in that respect was not protected under Section 7 of the Act. The Respondent provides communication services to Xerox Corporation (Xerox) and contracts with service vendors to resolve various technical problems for Xerox. On the afternoon of January 31, 1996, Eaton spoke with her husband, who was an employee of the Respondent's vendor Rochester Telephone, and learned that Rochester Telephone employees might shortly go on strike. Later that afternoon, Eaton sent two computer e-mail messages to her fellow employees and then had direct conversations with several employees working in the Respondent's network operations center (NOC) regarding the situation at Rochester Telephone. Credited testimony shows that Eaton told NOC employees not to call, refer service requests to or interact with Rochester Telephone. [HTML] [PDF]

The judge found that Eaton's actions were not concerted and bore no "legitimate relationship to the interests of employees, either her follow EDS employees or the Unionized employees of [Rochester Telephone]." The Board noted however that Eaton's e-mail solicitation of fellow employees to support the striking Rochester Telephone employees was clearly concerted activity, but that she "went further . . . and asked other employees not to call or refer service requests to Rochester Telephone." It agreed with the judge that Eaton thus solicited the Respondent's NOC employees "to stop performing an important portion of their jobs-referring telephone service and circuit problems of Xerox customers to Rochester Telephone-and that this amounted to the solicitation of an intermittent, partial work stopppage by the NOC employees." Because it found that Eaton's solicitation of a partial strike was unprotected, the Board did not reach the issue of whether Eaton's e-mail message that persons crossing a picket line "will suffer the consequences" constituted a threat.

Charge filed by Nettie C. Eaton, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Rochester, Sept. 25-26, 1996. Adm. Law Judge Wallace H. Nations issued his decision Dec. 23, 1996.

Adtranz, ABB Daimler-Benz Transportation (32-CA-17172, 32-RM-759, and 32-RC-4540; 331 NLRB No. 40) Pittsburg, CA May 31, 2000. The Board agreed with the administrative law judge that the Respondent, by maintaining overly broad rules restricting solicitation, distribution, and abusive language, violated Section 8(a)(1) of the Act and interfered with an election held on December 9, 1998 in Cases 32-RM-759 and 32-RC-4540 that the Machinists International lost 135 to 79. A second election was directed. The Board modified the judge's recommended Order and required that the Respondent amend its employee handbook by rescinding the unlawful overly broad rules and post an attached Notice to Employees at all its facilities where the rules have been maintained. The Board, citing Raley's, Inc., 311 NLRB 1244 (1993), found the latter remedy is appropriate, noting that the Respondent has not excepted to the judge's finding that its handbook setting forth the unlawful rules covers all its facilities nationwide. Member Brame would find that the Respondent's rule against abusive language does not violate Section 8(a)(1). See his dissenting position in Flamingo Hilton-Laughlin, 330 NLRB No. 34, slip op. at 2, fn. 3 (1999). [HTML] [PDF]

No exceptions were filed to the judge's dismissal of the complaint allegation that the Respondent maintained an unlawful rule regarding employee use of electronic mail (e-mail). The judge noted that the Respondent permitted e-mails of a personal nature, notwithstanding its rule, but he found no evidence that the Respondent prohibited union discussions on its e-mail system. "The rule was not strictly enforced as to personal discussions and, I find, it would be improper to presume that union discussions would be treated differently," the judge said in finding that the Respondent's e-mail rule is valid and that the General Counsel failed to establish that the rule was discriminatorily applied.

Charge filed by Machinists International; complaint alleged violation of Section 8(a)(1). Hearing at Oakland, July 19-20, 1999. Adm. Law Judge Jay R. Pollack issued his decision Jan. 31, 2000.

The Grand Rapid Press, a Div. of Booth Newspapers, et al. (7-CA-41951; 331 NLRB No. 43) Grand Rapids, MI May 31, 2000. In affirming the administrative law judge's conclusions that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish Detroit Newspaper Local 13N, Graphic Communications with the complete personnel files of the 22 bargaining unit employees and any future memoranda intended for personnel files regarding any bargaining unit member's work performance or alleged misconduct, the Board noted that the memoranda at issue, which Baker, the Respondent's operations director, entered and retained on his computer, were intended to be part of unit employees' personnel files. [HTML] [PDF]

Charge filed by Detroit Newspaper Local 13N, Graphic Communications; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Grand Rapids on Oct. 20, 1999. Adm. Law Judge Eric M. Fine issued his decision March 14, 2000.

Northwest Community Hospital (13-RC-20142; 331 NLRB No. 45) Arlington Heights, IL May 31, 2000. The Board certified that a majority of the valid ballots cast in a June 25, 1999 election were not cast for Operating Engineers Local 399 and that the Union is not the exclusive representative of the Employer's regular full-time and regular part-time employees. The tally of ballots shows 12 for and 12 against the Union, with 2 challenged ballots (those cast by on-call employees Donald Jarnow and John Colles). Disagreeing with the hearing officer, the Board sustained the challenges to the 2 ballots, concluding that the parties intended and stipulated to exclude hourly on-call employees from the bargaining unit. The Board wrote: [HTML] [PDF]

The Board noted that National Public Radio, Inc., 328 NLRB No. 14 (1999), is "particularly apposite," where, as here, the parties' stipulation includes only regular full-time and regular part-time employees. "The Petitioner's knowledge of the Employer's well-established distinction between part-time and hourly on-call employees vitiates any significance potentially attributable to the omission, from the instant stipulation, of language explicitly excluding all other employees, and underscores the unambiguous nature of the stipulation at issue," the Board wrote.

Member Hurtgen said that he does not necessarily agree that the stipulation, on its face, clearly and unambiguously excludes on-call employees, noting that it does not mention these employees, one way or the other, and it does not exclude "all other employees." He noted also that the original petition expressly included on-call employees, and that the group was later omitted from the stipulation. "Thus, the stipulation, considered in this light, clearly reflects an intention to exclude on-call employees," Member Hurtgen reasoned.

Silver Lake Care Center (17-CA-19008; 331 NLRB No. 39) Bartlesville, OK May 31, 2000. Adopting the conclusions of the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) of the Act when it discharged employee Cooper, finding that the "real reason for the timing" of his discharge was not Cooper's alleged insubordination to Nursing Home Administrator Holden, but the Respondent's subsequent discovery of Cooper's and employee Becker's efforts to initiate a union organizing campaign, and violated Section 8(a)(1) when Nursing Director Staton interrogated Becker about her union activities and when Staton threatened Becker with discharge if she were to engage in union organizing activity. [HTML] [PDF]

Charge filed by Teamsters Local 523; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tulsa, OK, Oct. 29, 1997. Decision issued by Adm. Law Judge James M. Kennedy, June 3, 1998.

H.Y. Floors & Gameline Painting, Inc. (20-RD-2241; 331 NLRB No. 44) Redwood City, CA May 31, 2000. Chairman Truesdale and Members Hurtgen and Brame found, contrary to the Regional Director, that the Employer and the Union (Carpenters 46 Northern California Counties Conference Board) have a collective-bargaining agreement that constitutes a contract under Section 9(a). However, the 9(a) contract does not bar the decertification petition filed in this proceeding because Moreno, the individual petitioner, is not a party to the 9(a) contract. In so finding, the majority disagreed with the Regional Director's conclusion that the Employer's and the Union's Memorandum of Agreement, signed on September 3, 1996, was an 8(f), not a 9(a), agreement and that's why it did not bar Moreno's decertification petition filed on Oct. 22, 1996. To establish voluntary recognition pursuant to 9(a) in the construction industry, the majority stated that the Board requires evidence that the union unequivocally demanded recognition as the employees' 9(a) representative, and that the employer unequivocally accepted it as such, comparing Golden West Electric, 307 NLRB 1494 (1992), with J&R Tile, 291 NLRB 1034 (1988). The majority disagreed with the Regional Director, who, citing J&R Tile, found that the Union never discussed with the Employer the subject of union support at the time the Employer executed the Agreement; the Union did not produce evidence at the hearing that it had, at any time, presented the Employer with authorization cards from a majority of unit employees; and the language of the Agreement itself was insufficient to overcome these inadequacies. With regard to the requirement that the union make a contemporaneous showing of majority union support at the time 9(a) recognition is granted by the employer, the majority noted that the Board has held that an employer's acknowledgment of such support is sufficient to preclude the employer from challenging majority status, citing Oklahoma Installation Co., 325 NLRB 741 (1998). Here, the majority concluded that the elements of a 9(a) contract are met by the language of the Agreement, which "evinces" the Union's unequivocal demand and the Employer's unequivocal acceptance of a 9(a) relationship, and that the Employer was satisfied that the Union has majority support. Thus, the Employer and the Union had a relationship under 9(a), not 8(f), and had the Employer filed the decertification petition here, the Agreement would have barred the petition. The Employer did not file the petition, however, and the Petitioner here is not estopped from timely challenging the 9(a) Agreement. [HTML] [PDF]

The majority disagreed with the minority's position that it is improper to attack a union's majority status in a representation proceeding, and that the only avenue available to do so is through a Section 8(a)(2) unfair labor practice charge. Members Fox and Liebman would overrule Casale Industries, 311 NLRB 951 (1993), to the extent that it "can be read to hold that notwithstanding Texas Meat Packers [130 NLRB 279 (1961)] and its progeny, a construction union's alleged lack of majority status at the time of recognition can be litigated in a representation proceeding...." The majority found no inconsistency between Casale and Texas Meat Packers because the "gravamen" of the decertification petitioner's contention is not that an unfair labor practice was committed when the Employer initially recognized the Union. "Rather, our inquiry into whether the Union had majority status here is to determine if an election can presently be conducted to ascertain current employee support. We believe that this inquiry, which is akin to the procedural question of standing, is properly before us now," they stated. Consequently, the majority remanded the case to the Regional Director to open the hearing and adduce evidence of the Union's majority status on September 3, and its effect, if any, on the bar quality of the September 3 Memorandum Agreement.

Carpenters Local 13 (First Chicago NBD Corp.) (13-CD-544; 331 NLRB No. 37) Chicago, IL May 30, 2000. The charge in this Section 10(k) proceeding filed by the Employer, First Chicago, alleges that the Respondent, Carpenters Local 13, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than those represented by Teamsters Local 705. After considering all relevant factors outlined in Columbia Broadcasting, 364 U.S. 573 (1961), the Board concluded that employees represented by Teamsters Local 705 are entitled to perform the disputed work. This determination is based on the collective-bargaining agreement, employer preference and practice, relative skills and training, and economy and efficiency of operations. [HTML] [PDF]

127 Restaurant Corp. d/b/a Le Madri Restaurant (2-CA-30176, 30729; 331 NLRB No. 32) New York, NY May 26, 2000. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging waiter Luis Jerez because of his union and protected concerted activities in voicing employee complaints, including the allegedly improper deduction of money from tips, and because he was a named plaintiff in a Federal lawsuit brought against Respondent for violations of Federal and state labor law with respect to employee pay and tips. In affirming the judge's findings that the Respondent unlawfully discharged, refused to grant time off to, and reduced the work shifts of waiter Walter Magnuson (a named plaintiff in the lawsuit), the Board relied solely on Section 8(a)(1), and not Section 8(a)(3). The Respondent's asserted reasons for its actions, all rejected by the judge, included customer complaints about both waiters, Magnuson's refusal to work on Mother's Day in 1997, and his cursing the chef. The judge found, with Board approval, that the Respondent violated Section 8(a)(1) by warning its employees that it would be futile for them to engage in union activity. He found that at an employee meeting called a couple days after the Federal lawsuit was filed, Respondent's owner Luongo, in response to Jerez' remark that unionization of the Respondent would have prevented the alleged misallocation of tips and poor working conditions, told the assembled employees that "over my dead body" would the Respondent become a "union house" and that he would close the restaurant before he would let that happen. [HTML] [PDF]

Charges filed by Luis Jerez and Walter Magnuson, Individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, Feb. 3, March 5, and April 16, 1999. Adm. Law Judge Steven Davis issued his decision June 23, 1999.

Controlled Energy Systems (28-CA-13984; 331 NLRB No. 33) Phoenix, AZ May 25, 2000. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by failing to make timely payments into various Union trust funds, failing to remit Union dues deducted from employees' paychecks, withdrawing recognition from Electrical Workers IBEW Local 640, laying off employees Jerry Howe, Jeffrey Rasmussen, and Samuel Gladden because of their support for the Union, unilaterally reducing the pay rate of employee Vidal Sianez Jr., interrogating employees about their sentiments toward the Union, and threatening the jobs of Union supporters. In a reversal of the judge, the Board found that the Respondent terminated five employees because of their participation in an unfair labor practice strike in violation of Section 8(a)(3) and (1). The Board found that the record fully supported the complaint allegation that the Respondent unlawfully "caused the termination" of the five strikers and that the Respondent has not been denied procedural due process by the General Counsel's mischaracterization of the complaint allegations as a "constructive discharge." [HTML] [PDF]

Charge filed by Electrical Workers IBEW Local 640; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Phoenix, June 10-11, 1997. Adm. Law Judge Michael D. Stevenson issued his decision Jan. 23, 1998.

Transit Management of Southeast Louisiana, Inc. (15-CA-14577; 331 NLRB No. 30) New Orleans, LA May 25, 2000. The Board affirmed the administrative law judge's finding that the Respondent lawfully discharged bus operator Dian Silva for her abusive language directed at both supervisory and other employees in violation of the company's Disciplinary Guide, Rule #3 that prohibits cursing other employees and provides that it can be grounds for termination. The complaint, alleging that the Respondent violated Section 8(a)(1) of the Act by discharging Silva on November 30, 1997 because she made safety complaints at various times including at the Respondent's Board of Commissioners' meetings held on September 30 and October 28, 1997, was dismissed. In her exceptions, Silva contended essentially that the General Counsel failed to introduce evidence establishing that the Respondent's buses were operationally unsafe for driving. She submitted what she claims to be U.S. Department of Transportation documents regarding the Respondent's operation and the safety of its vehicles. The Board ruled that the documents were not properly before it because they were not made part of the record during the hearing. It explained: "Even if we were to construe the Charging Party's exceptions as a motion to reopen the record, we would deny the motion on the ground that the Charging Party has failed to show that the documents in question are newly discovered and previously unavailable and that they would require a different result. See Novel Knit Inc., 299 NLRB 58 fn. 2 (1990); Sec. 102.48(d)(1) of the Board's Rules and Regulations." [HTML] [PDF]

Charge filed by Dian Silva, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at New Orleans on June 8, 1999. Adm. Law Judge Bruce D. Rosenstein issued his decision Oct. 22, 1999.

Laborers Local 294 (Associated General Contractors of California) (32-CB-4457, et al.; 331 NLRB No. 28) Fresno, CA May 26, 2000. The Board disagreed with the administrative law judge's conclusion that the Board should not defer to two arbitration decisions because she found that the Spielberg "fairness" criterion had not been met. Contrary to the judge, the Board, citing the Spielberg/Olin factors, ruled that deferral to the arbitrator's awards was appropriate, finding the proceedings (1) were fair and regular; (2) that all parties agreed to be bound; (3) the arbitral decision was not "clearly repugnant to the Act"; (4) the contractual issue before the arbitrator was factually parallel to the unfair labor practice issue; and (5) the arbitrator was presented generally with the facts relevant to resolve any unfair labor practice. The Board found also that the fairness factor was not violated even though Charging Party Williams was not a party to the arbitration proceeding. The judge found, inter alia, that the Respondent Union did not adhere to its contractual hiring hall provision that persons shall be referred to jobs in the order in which they are registered on the out-of-work list. Thus, the judge concluded that other employees should have been dispatched to the Valley Fence and Fresno Paving jobs and that by bypassing them, the Respondent violated Section 8(b)(1)(A) and (2) of the Act. [HTML] [PDF]

Charges filed by Donnell Williams, an Individual; complaint alleged violations of Section 8(b)(1)(A) and (2). Hearing at Fresno, CA, July 9, 1996. Decision issued by Adm. Law Judge Mary Miller Cracraft, Sept. 10, 1996.

First FM Joint Ventures, LLC d/b/a Hampton Inn & Suites - Chicago River North (13-RC-20292; 331 NLRB No. 35) Chicago, IL May 23, 2000. In a 3 to 2 decision, Chairman Truesdale and Members Fox and Liebman, with Members Hurtgen and Brame dissenting, let stand the Regional Director's decision to deny the Employer's request to withdraw a Stipulated Election Agreement in the instant case because a newly filed petition in Case 13-RC-20300 seeks an election in a unit of employees alleged by the Employer to share a community of interest among those already included in the stipulated agreement. The majority found that the Union's filing of a second petition for a unit of housekeeping, laundry and hostess attendants on the same day shortly after the Stipulated Election Agreement for a unit of door attendants and bell persons was approved, did not present "unusual circumstances" contemplated by the Board for withdrawal from a Stipulated Election Agreement. In so doing, the majority, citing Highlands Regional Medical Center, 327 NLRB No. 188 (1999), noted the Board's practice of honoring concessions made in the interest of expeditious handling of representation cases, even if the Board may have reached a different result upon litigation. The majority stated that there is no legal precedent requiring a labor organization to identify organizing plans or forfeit a stipulated election agreement, and that Employer's counsel knew or should have known that stipulating to the appropriateness of a unit opened the possibility that the Union could organize and seek to represent its other employees. [HTML] [PDF]

Members Hurtgen and Brame would permit withdrawal of the stipulation or, at least, hold a hearing on certain matters. In their view, the instant case presents "unusual circumstances" because (1) the petitions were [filed] within hours of each other; (2) the Union knew of the imminent petition and the Employer did not; and (3) these matters were material.

Covenant Homecare (10-CA-31593; 331 NLRB No. 21) Knoxville, TN May 23, 2000. The Board adopted the administrative law judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1) by discharging 6 social workers for concerted activity. The judge found, and the Board agreed, that the General Counsel did not prove the fourth Wright Line requirement, i.e. that there was a connection between the protected activity and the adverse employment action. In short, the judge determined that there was no evidence to establish that the Respondent discharged the employees because they attended a meeting at which they complained to each other about a new supervisor. Rather, the Respondent discharged the employees because they falsified their time sheets used to record a meeting at which they engaged in concerted activity, the judge said. Moreover, evidence showed that the Respondent consistently discharged employees for falsifying time sheets and had legitimate reasons for doing so to avoid any possible federal health care fraud investigation. [HTML] [PDF]

Charges filed by Teresa Rector, an Individual; complaint alleged violations of Section 8(a)(1). Hearing at Knoxville, TN, Nov. 18, 1999. Decision issued by Adm. Law Judge Keltner W. Locke, Jan. 14, 2000.

Noah's Bay Area Bagels (32-CA-16086, 16244; 331 NLRB No. 17) Berkeley, CA May 22, 2000. The Board panel adopted the administrative law judge's dismissal of allegations that Store Manager Love unlawfully warned employee Smith about Smith's distribution of union literature, finding that Smith was distributing the material in a work area, inside the store, and thus, Respondent could properly prohibit such conduct. Members Fox and Liebman, with Member Brame dissenting, affirmed the judge's finding that CEO Mizes' comments to employees during a captive audience speech constituted an unlawful threat that employees would be deprived of existing benefits if they selected the Union to represent them, and found that the Respondent violated Section 8(a)(3) and (1) by failing to restore medical benefits to employees at all of its stores including the Telegraph Avenue store prior to the election at that site. [HTML] [PDF]

Charges filed by Food and Commercial Workers Local 870; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Oakland, CA, Oct. 7-8, 1997. Decision issue by Adm. Law Judge Joan Wieder, Jan. 22, 1998.

American Showa, Inc. (8-CA-31106; 331 NLRB No. 25) Sundbury, OH May 22, 2000. The Board upheld the administrative law judge's decision, as modified, and found that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating employee Christopher Hankins and informing him that he was discharged because of his union activity and by suspending and thereafter terminating Hankins in violation of Section 8(a)(3) and (1). The Board modified the judge's conclusions of law, recommended Order, and notice to employees to conform to the violations found by him. No exceptions were filed to the judge's recommended dismissal of the allegation that the Respondent unlawfully created the impression that employees' union and protected activities were under surveillance. [HTML] [PDF]

Charge filed by Teamsters Local 413; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Delaware, OH, Jan. 27-28, 2000. Adm. Law Judge Bruce D. Rosenstein issued his decision March 17, 2000.

Wexler Meat Co. (13-CA-37659; 331 NLRB No. 26) Chicago, IL May 24, 2000. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) of the Act by promulgating, maintaining, and threatening to enforce an overly broad solicitation and distribution rule; but that it did not violate Section 8(a)(4), (3), and (1) by threatening to and issuing a written warning to Francisco Jimenez because he engaged in union and protected concerted activity, filed a UD petition with the Board, and acted as an election observer. This case arose after the Respondent and the incumbent union (Food and Commercial Workers Local 546) negotiated a 3-year contract, ratified by the membership, which resulted in less favorable terms for the Respondent's 35 butchers, including Jimenez, who was the union steward. In protest, Jimenez lead a petition drive against the incumbent union and was successful in obtaining a vote to withdraw union-shop authority. He also initiated a 1-day walkout. The judge found that following the walkout, the butchers displayed "an apparent lack of effort to do the more time consuming thorough cleaning of the maximum amount of meat off of bones (which affected their ability to get more piecework pay)." He concluded that the Respondent demonstrated that it had legitimate and nondisparate reasons for warning Jimenez about his substandard cleaning of bones and admonishing him to do a better job even in the absence of his union and protected activities. [HTML] [PDF]

Charge filed by Francisco A. Jimenez, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Chicago, Dec. 6-7, 1999. Adm. Law Judge Richard H. Beddow, Jr. issued his decision Feb. 14, 2000.

Carpenters Local 1307 (J & P Building Maintenance) (13-CD-555; 337 NLRB No. 27) Chicago, IL May 24, 2000. The Board quashed the notice of hearing filed under Section 10(k) of the Act because the case does not involve the assignment of work to one group of employees rather than another within the meaning of Section 8(b)(4)(D), but instead involves the question of which union will represent the employees of J & P Building Maintenance who are currently performing the shingling work at the Dearborn Village Townhomes jobsite in Chicago, Illinois. The Board noted that none of the parties objected to the performance of the shingling work by the Employer's current employees; that the Employer would like to retain its current employees, but prefers that Roofers, Waterproofers and Allied Workers Local 11 represent them; and that Local 11 and Carpenters Local 1307 dispute only which union should represent the employees. [HTML] [PDF]

Bridgestone/Firestone, Inc. (7-CA-39847; 331 NLRB No. 24) Detroit, MI May 22, 2000. On a stipulated record, Members Hurtgen and Brame dismissed the complaint alleging that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with and withdrawing recognition from Teamsters Local 283. In so doing, the majority disagreed with Member Fox and the General Counsel that the effect of the Union's March 20, 1997 notice to the Respondent that it wished to continue the collective-bargaining agreement, with some modifications, was to automatically renew the agreement, and to prevent the Respondent-under contract-bar principles-from raising a subsequent claim of good-faith doubt of union majority support. [HTML] [PDF]

The parties' most recent collective-bargaining agreement was effective by its terms from June 6, 1994 to June 5, 1997. Article XXI, Section 1 specifies that the agreement will remain in effect (i.e., "roll over") in the absence of a timely "written notice of desire to cancel or terminate the Agreement." Section 2 details the procedures to be followed where a party does not wish to terminate the Agreement but "desires to negotiate changes or revisions." As an initial matter, the majority agreed with the parties that had their 1994-1997 collective-bargaining agreement automatically renewed in its entirety prior to the Respondent's April 29, 1997 notice to the Union of its good-faith doubt of union majority support, that claim would have been foreclosed under the contract-bar principle for the duration of the contract extension. Determining, however, that renewal did not occur, the majority found "relevant" both the applicable contract provisions (article XXI, sections 1 and 2 of the 1994-1997 agreement) and the parties' March 1997 conduct concerning the proposed changes. It concluded that the Union's request to negotiate changes in the 1994-1997 contract had the effect of terminating the agreement, at least as to the provisions for which bargaining was sought. In the absence of an express contractual provision that the contract [or portions thereof] will not terminate if reopened, the "effect of the Union's invocation of the contractual 'changes or revisions' procedure in article XXI was to forestall automatic renewal of the contract provisions for which bargaining was sought," the majority held, adding: "And, because the issues on which the Union sought bargaining ('wage [sic], hours, conditions and fringe benefits') were tantamount to all mandatory subjects of bargaining, we find that, even assuming that the 1994-1997 agreement renewed as to its unopened contract provisions, the residual agreement would have been insufficient under Appalachian Shale principles to constitute a contract bar." Appalachian Shale Products, 121 NLRB 1160 (1958). Having found that the 1994-1997 contract did not automatically renew as a result of the Union's March 20 notice to the Respondent, the majority held that the Respondent thereafter lawfully refused to bargain for a successor contract and withdrew recognition from the Union at the contract's expiration based on a good-faith doubt of the Union's majority status.

In her dissent, Member Fox wrote: "As neither party gave notice to terminate the agreement under section l, and as the Union's section 2 notice did not terminate the agreement, or any provision of the agreement, I would find that the agreement remained in effect, and as a result the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union and unlawfully withdrawing recognition." She concluded that "by the express terms of section 2, the Union's notice permitted the parties to resort to all lawful economic recourse during negotiations, but also indicated the Union's intent to continue the agreement in effect unless and until modifications were agreed on. In the absence of either agreement by the parties on modifications or the sending of a section 1 termination notice on or before April 6, 1997, the agreement was in effect before the contract expiration date by virtue of the automatic renewal provision of section 1."

Charge filed by Teamsters Local 283; complaint alleged violation of Section 8(a)(1) and (5). Parties waived their right to a hearing before an administrative law judge.

U.S. Ecology Corp. (10-CA-30847, 31149; 331 NLRB No. 23) Oak Ridge, TN May 23, 2000. The Board majority of Members Fox and Liebman, with Member Hurtgen dissenting in part, affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) by unlawfully surveilling, and creating the impression of surveilling, employees' strike activities; and violated Section 8(a)(5) and (1) by surface bargaining, implementing the terms of its final offer, and making unilateral changes by posting vacancies for "as needed" positions without notice to or consultation with the Union. However, the Board reversed the judge's conclusion that the Respondent engaged in unlawful direct dealing with unit employees. [HTML] [PDF]

Although he acknowledged "that there is some common ground between my colleagues and me on the issue of bad-faith bargaining," Member Hurtgen did not agree that the Respondent bargained in bad faith because he found his colleagues' reliance on certain attenuated testimony insufficient to base such a conclusion. Thus, he disagreed with the majority's findings that no valid impasse existed and that the Respondent further violated Section 8(a)(5) by implementing its final offer, since these conclusions are premised on the finding that the Respondent did not bargain in good faith. Moreover, Member Hurtgen endorsed the Respondent's argument, rejected by the majority, that the issue of posting the "as needed" positions is appropriate for deferral to arbitration under Collyer Insulated Wire, 192 NLRB 837 (1971).

Charges filed by Oil, Chemical & Atomic Workers International; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Oak Ridge, TN, Jan. 21-22, 1999. Decision issued by Adm. Law Judge Howard I. Grossman, May 13, 1999.

Cook County College Teachers Local 1600, IFT-AFT (13-CA-37568; 331 NLRB No. 8) Chicago, IL May 15, 2000. Affirming the administrative law judge, the Board held that the Respondent properly issued a warning notice to secretary Louise Winfrey for providing the Respondent's directory, a list of 120 of its management officials and their home addresses and telephone numbers, to her collective-bargaining agent (Chicago Newspaper Guild Local 34071) to advance the Guild's bargaining positions. In recommending the complaint's dismissal, the judge found that the Respondent restricted use of its directory for official business and Winfrey knew of the restriction before she obtained the names and home addresses of the Respondent's officials from the directory and provided them to the Guild. The Board did not rely on the judge's discussion of the relative strengths of certain Section 7 rights and certain union needs. [HTML] [PDF]

Charge filed by Chicago Newspaper Guild Local 34071; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago on Oct. 25, 1999. Adm. Law Judge Robert A. Giannasi issued his decision Jan. 10, 2000.

Grancare, Inc., d/b/a Premier Living Center (11-UC-83; 331 NLRB No. 9) Lake Waccamaw, NC May 15, 2000. The Board affirmed the Regional Director's dismissal of the Employer's UC petition seeking clarification as to the supervisory status of the Employer's licensed practical nurses (LPNs) and seeking to exclude the LPNs from the certified unit (all LPNs and service and maintenance employees). The Board rejected the Employer's contention that the Board is required to determine the supervisory status of job classifications in a bargaining unit any time the issue is raised, citing I.O.O.F. Home of Ohio, Inc., 322 NLRB 921 (1997). Further, the Board found that the Employer raised the same contentions (the assignment of "new" supervisory duties to the LPNs) in this case and the underlying representation proceeding, Case 11-RC-6262, and failed to offer any newly discovered and previously unavailable evidence or unusual circumstances that would require any exception to the Board's relitigation rule with regard to its unit clarification petition and that would warrant the inclusion of the LPNs in the certified unit. The union involved is Food & Commercial Workers Local 204. [HTML] [PDF]

Carrier Corp., a wholly owned subsidiary of United Technologies Corp. (10-CA-29246, 29437; 331 NLRB No. 11) Athens, GA May 15, 2000. The Board dismissed the complaint, agreeing with the administrative law judge that the record does not support the General Counsel's allegations that the Respondent violated Section 8(a)(1) of the Act by issuing a warning to, suspending, laying off, and subsequently discharging Gary Greshem for engaging in concerted activities. In affirming the administrative law judge's finding that the Respondent's April 8, 1996 warning to and suspension of Gresham did not violate Section 8(a)(1), the Board relied solely on his finding that the Respondent lawfully disciplined Gresham based on his interruption of a meeting conducted by Manager Kathy Holen with other employees; Gresham's insistence on discussing immediately a subject unrelated to the meeting; and his failure and refusal to acquiesce in Hoten's repeated directions to him that his concerns about the presence of the safety shoe truck vendor at the facility would be discussed later that day at a more appropriate time. Even assuming that Gresham's conduct was concerted, it lost the Act's protection, the Board reasoned. [HTML] [PDF]

Charges filed by Gary Gresham, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Athens, Dec. 4-6, 1996. Adm. Law Judge Philip P. McLeod issued his decision Jan. 16, 1997.

Felix Industries, Inc. (2-CA-29785; 331 NLRB No. 12) Lincolndale, NY May 17, 2000. Members Fox and Liebman, with Member Hurtgen dissenting, reversed the administrative law judge and held that the Respondent violated Section 8(a)(1) of the Act by discharging Salvatore Yonta for claiming the right to night differential pay under the terms of a collective-bargaining agreement. No exceptions were filed to the judge's finding that the Respondent did not violate Section 8(a)(3) by this conduct. Applying the four-factor test of Atlantic Steel Co., 245 NLRB 814 (1979), the judge found that the subject matter of Yonta's telephonic discussion with his supervisor (Felix Petrillo) about the night differential pay was protected, but that Yonta lost protection of the Act by calling Petrillo a "f...ing kid" during the discussion. The factors considered for determining whether an employee engaged in protected activity loses the protection of the Act by opprobrious conduct are: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice. The judge found that even if Yonta had engaged in protected conduct, he would have been discharged for using a profane term to his supervisor, applying a Wright Line analysis. Members Fox and Liebman agreed with the judge that the Atlantic Steel factors are applicable, but they disagreed with her application of the first, third, and fourth factors and her use of a Wright Line analysis in the circumstances here, where the conduct for which the Respondent claims to have discharged Yonta was protected activity. Member Hurtgen found that under the Atlantic Steel test, Yonta's conduct was not protected and that the Respondent was privileged to discharge him. [HTML] [PDF]

Charge filed by Salvatore Yonta, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York on Dec. 15, 1997. Adm. Law Judge Eleanor MacDonald issued her decision July 15, 1998.

Eagle-Picher Industries, Inc., Hillsdale Tool and Mfg. Co. Div. (7-CA-41632, 7-RC-21284; 331 NLRB No. 14) Hillsdale and Jonesville, MI May 19, 2000. Chairman Truesdale and Member Hurtgen found that Gerald Elliar's conduct during the course of an employer lawful campaign meeting was insubordinate and unprotected, and agreed with the administrative law judge that the Respondent's issuance of a warning letter to Ellair thus did not violate Section 8(a)(1) of the Act. Prior to the meeting in question, Company President Bill Oeters told employees he would make a speech and employees should hold their questions until he finished. When Elliar nonetheless attempted to ask a question during Oeters' presentation, he was told to sit down and be quiet. When the Respondent continued its presentation, Ellair muttered "garbage" for all to hear. Chairman Truesdale and Member Hurtgen noted that although the relative severity of the discipline-relied on by the judge in dismissing the allegation-may be relevant to the issue of motive, they did not regard it as the determining factor in finding the discipline unlawful. Rather, they held Oeters was privileged to tell Ellair to keep quiet until he was finished and that Ellair's "garbage" comment was insubordinate and unprotected. Chairman Truesdale (and Member Hurtgen in a separate concurrence) found distinguishable Beverly California Corp., 326 NLRB No. 30 (1998), cited by dissenting Member Liebman. [HTML] [PDF]

Charge filed by Auto Workers (UAW); complaint alleged violation of Section 8(a)(1). Hearing at Hillsdale, April 19-21, 1999. Adm. Law Judge David L. Evans issued his decision Sept. 7, 1999.

Roofers Local 11 (Funderburk Roofing) (13-CP-697; 331 NLRB No. 4) Westchester, IL May 19, 2000. The Board agreed with the administrative law judge's finding that the Respondent Union violated Section 8(b)(7)(A) of the Act by threatening to and picketing the Employer's jobsite with an organizational and/or recognitional objective, at a time when a question concerning representation under Section 9(c) could not be raised because the Employer had lawfully recognized Production Workers of Chicago and Vicinity Local 707 under Section 9(a). Rejecting the argument that the judge erred by admitting evidence of Respondent's dealings with the Employer prior to the picketing, the Board noted that such evidence is germane as background and that the judge did not rely on it when he found the violation. The Board did not find merit to the contention that the judge applied a per se rule that the language on the picket signs necessarily demonstrated recognitional picketing, and determined instead that the judge's decision is consistent with Alton-Wood River Building, 114 NLRB 526 (1963). [HTML] [PDF]

Charge filed by Funderburk Roofing; complaint alleged violation of Section 8(b)(7)(A). Hearing at Chicago, IL, Nov. 13, 1996 and Feb. 4, 1997. Decision issued by Adm. Law Judge Steven M. Charno, May 20, 1997.

Active Fire Sprinkler Corp. (1-CA-29751, 29796; 331 NLRB No. 13) Brooklyn, NY May 17, 2000. The Board granted the General Counsel's motion to strike the Respondent's answer to the compliance specification and motion for summary judgment, filed on March 13, 2000, because the Respondent failed to comply with the specificity requirements of Section 102.56(a), (b), and (c) of the Board's Rules and Regulations. In brief, the Respondent did not swear to its answer or serve a copy on other parties; the answer contained only general denials; and the Respondent did not furnish any alternative backpay formula or calculations, but requested that the Board review, reevaluate, and recalculate the backpay periods and moneys due employees Kelley and Mudgett. The Board stated: "At best, these claims appear to be an attempt to relitigate issues decided in the unfair labor practice proceeding," contrary to Transport Services Co., 314 NLRB 458 (1994). Thus, the Board ordered the Respondent to comply with the compliance specification. (The union here is Plumbers Local 550.) [HTML] [PDF]

Teamsters Local 71 (11-CA-17290; 331 NLRB No. 18) Charlotte, NC May 18, 2000. Members Fox and Liebman agreed with the administrative law judge that the contractual language at issue (Article 6 Seniority Section 2-Layoff and Recall) does not expressly give the Respondent, Employer Teamsters Local 71, the right to lay off employees unilaterally; and that the Respondent's failure to bargain with the Communications Workers over the layoff Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). See Exxon Research & Engineering Co., 317 NLRB 675 (1995), enf. denied on other grounds 89 F.3d 228 (5th Cir. 1996). Members Fox and Liebman held that "even under the 'contract coverage' theory as elucidated by the court of appeals in NLRB v. Postal Service, 8 F.3d 832 (D.C. Cir. 1993), the Respondent was not privileged by the contract to act unilaterally with respect to the layoff decision." They found the Respondent's failure to process Smith's grievance and respond to CWA's information request also violated Section 8(a)(5), noting the parties' informal settlement agreement in Case 11-CA-16927 whereby the Respondent agreed to recognize the CWA as the collective-bargaining representative of its clerical and maintenance employees and be bound by the collective-bargaining agreement executed on January 12, 1996. [HTML] [PDF]

Member Hurtgen, dissenting in part, concluded that the Respondent was acting lawfully in deciding to lay off Smith, finding that the contract covers the instant dispute, i.e., the layoff of an employee; that the parties have set forth the clear and specific obligations of the Respondent in a layoff situation; that the Board's task is simply to interpret the parties' mutual intentions; and that Metropolitan Edison does not require a different result. He found that his colleagues' approach, which starts from the premise that there is a statutory right to bargain and then reasons that contractual silence means that the right has not been waived, "can lead to inconsistent results [] between the Board under Section 8(a)(5) and courts/arbitrators under Section 301." Member Hurtgen said: "In my view, where there is a contract covering the subject matter, all tribunals should seek to interpret and carry out that agreement."

Charge filed by CWA; complaint alleged violation of Section 8(a)(1), (3), (4) and (5). Hearing at Charlotte, Oct. 9-10, 1997. Adm. Law Judge George Carson II issued his decision Dec. 5, 1997.

Special Citizens Futures Unlimited (2-RC-21895; 331 NLRB No. 19) New York, NY May 18, 2000. Applying Alcohol & Drug Dependency Services, 326 NLRB No. 58 (1998), which issued after the Regional Director's report, Members Fox and Liebman found that the delay in the Union's receipt of a complete and accurate Excelsior list interfered with the purposes behind the Excelsior requirement of providing employees with a full opportunity to be informed of the arguments concerning representation. Contrary to the Regional Director's recommendation to overrule the Union's Excelsior objections and to certify the election results, the majority set aside the election held at the Employer's three group homes on October 17 and 18, 1997, and directed that a new election be conducted. AFSCME District Council 1707 lost the election 16 to 9. Member Hurtgen, dissenting, agreed with the Regional Director that the Employer acted in good faith and in substantial compliance with the Excelsior requirements and that the election should not be set aside, noting that the deficiencies were on the part of the NLRB Regional Office and the Union, i.e., everyone except the Employer, and that the Union had the Excelsior list for 10 days prior to the election despite the deficiencies. See his dissent in Alcohol & Drug Dependency Services. [HTML] [PDF]

On September 19 and 23, 1997, respectively, the Union and the Employer executed a Stipulated Election Agreement whereby the Employer agreed to submit an Excelsior list to the Regional Office within 7 days of the agreement's approval. Contrary to established Board procedure, the Regional Office failed to notify the parties immediately upon the election agreement's approval on September 26 and did not mail out the Regional Director's preelection letter dated September 26 until October 2, along with the election notices. The letter notified the parties of the election agreement's approval and directed the Employer to file an Excelsior list on or before Friday, October 3. On October 3, the Union inquired of the Employer as to when the Excelsior list would be sent to the Region. In response, the Employer's counsel contacted the Regional Office and was informed that the Excelsior list was due that day. At approximately 6:24 p.m. that evening, after the Regional Office had closed, the Employer's counsel faxed an Excelsior list (3 pages comprised of 27 names and addresses) to the Region. The list included only the employees' surnames and first initials, rather than their full names as required. On Monday, October 6, the Regional Director faxed a copy of the list to the Union's counsel; however, counsel received only 2 of the 3 pages. The Union's counsel forwarded it to the Union's director of organizing. Later that day, the Employer's counsel submitted a second, revised Excelsior list to the Regional Office. The list omitted one name from the original list, included four additional names, and included the employees' first and last names. Contrary to established Board procedure, the Regional Office did not immediately forward the second Excelsior list to the Union's counsel but faxed the list the next afternoon, October 7. Unaware of the disparity between the two lists, the Union's counsel did not forward the second list to its organizing staff. On October 15, at the Regional Office's request, the Employer submitted a third Excelsior list, with employees' names organized by polling site. The election was conducted on October 17 and 18.

Associated Builders & Contractors, Golden Gate Chapter (32-CA-15647; 331 NLRB No. 5) Dublin, CA May 16, 2000. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by maintaining a lawsuit against the Charging Parties solely on the ground that the Charging Parties' job targeting program is concerted, protected activity and that, under Manno Electric, 321 NLRB 278 (1996), enfd. per curiam mem. (5th Cir. 1997), Respondent's maintenance of its lawsuit constitutes an interference with conduct that is actually protected by Section 7. Chairman Truesdale and Member Liebman found it unnecessary to pass on the judge's analysis of the General Counsel's second theory under Loehmann's Plaza, 305 NLRB 663 (1991). Member Hurtgen concluded that there is a violation under Loehmann's Plaza rather than under Manno Electric. [HTML] [PDF]

Charge filed by Electrical Workers [IBEW] Locals 180, et al.; complaint alleged violation of Section 8(a)(1). Hearing on March 24, 1997. Decision issued by Adm. Law Judge Clifford H. Anderson, July 1, 1997.

Belle Knitting Mills (29-CA-20611, et al.; 29-CB-10172) Brooklyn, NY May 15, 2000. In brief, the Board adopted the administrative law judge's findings that, inter alia, the Respondent Employer unlawfully solicited complaints and grievances and impliedly promised that it would resolve them without a union; threatened employees with plant closure and relocation "if the Union came in"; and required employees to produce immigration papers for anti-union reasons, suggesting to employees that this was "just the first step in bringing in a union." The judge dismissed, with Board approval, allegations made by the Employer that UNITE Local 155 threatened employees that they would be reported to the Immigration and Naturalization Service if they failed to vote for the Union. Case 29-RC-8728 in this proceeding was severed and remanded to the Regional Director. [HTML] [PDF]

Charges filed by UNITE Local 155; complaint alleged violations of Section 8(a)(1), (3) and (4). Charge filed by Belle Knitting Mills; complaint alleged violation of Section 8(b)(1)(A). Hearing on consolidated complaints held Oct. 8-10, Nov. 19-21, and Dec. 12, 1997 at Brooklyn, NY. Decision issued by Adm. Law Judge Robert T. Snyder, Feb. 11, 1999.

Old Dominion Freight Line (29-CA-20002, 20944; 331 NLRB No. 3) High Point, NC May 15, 2000. The Board found that the administrative law judge erred in rejecting the Respondent's 10(b) defense to allegations that it violated Section 8(a)(1) and (3) of the Act by attempting to dampen employee Fuentes' union activity with a pay raise during the election campaign. In Case 29-CA-20002, the Union charged that the Respondent unlawfully discharged 3 union supporters, threatened employees with physical harm and plant closure, and falsely accused employees of bullying other employees into signing authorization cards. The parties agreed to settle the charges on Sept. 11, 1996. [HTML] [PDF]

On April 25, 1997, Fuentes filed a new charge in Case 29-CA-20944. The General Counsel issued a consolidated complaint that vacated the settlement agreement in Case 29-CA-20002.

The judge found that the Respondent violated the Act by promising Fuentes a pay raise in August 1996 and granting him a pay raise on September 12, 1996. All other allegations of the consolidated complaint were dismissed by the judge. On review, the Board found merit to the Respondent's contention that the judge erred in rejecting its 10(b) defense to the Fuentes' pay allegations. The Board noted that the judge correctly cited Redd-I, Inc., 290 NLRB 1115 (1988), by finding that the pay raise allegations are "closely related" to the other allegations of Fuentes' unfair labor practice charge. However, the Board noted, the judge overlooked Redd-I's additional requirement that the complaint allegations must be based on conduct occurring less than 6 months before the filing of a charge. Here, the complaint allegations of case 29-CA-20944 stem from the charge Fuentes' filed on April 25, 1997, which was served on Respondent on April 30, 1997. The Board stated: "Thus, only those complaint allegations involving conduct occurring after October 30, 1996, are timely within the limitations of Section 10(b) of the Act, and those allegations that involve conduct occurring prior thereto are time-barred by Section 10(b). Because the promise and grant of a pay raise to Fuentes found unlawful by the judge occurred in August and September 1996, outside the 10(b) period, those allegations cannot be found to be unfair labor practices includable in the April 25, 1997 charge, and must be dismissed." The Board upheld the judge's finding that the Respondent did not commit any other unfair labor practices after the settlement agreement was approved in Case 29-CA-20944 dismissed the consolidated complaint in its entirety, and reinstated the settlement agreement.

Charges filed by Teamsters Local 707 and Ruben Fuentes, an Individual; complaints alleged violations of Section 8(a)(1) and (3). Hearing at Brooklyn, NY, March 16-17, 1997. Decision issued by Adm. Law Judge Jerry M. Hermele, Sept. 23, 1998.

Office Employees Local 29 (Dameron Hospital Assn.) (32-CB-3695, 3801; 331 NLRB No. 15) Oakland, CA May 12, 2000. Chairman Truesdale and Member Liebman, with Member Brame concurring in part and dissenting in part, agreed with the administrative law judge that the Respondent/Union breached its duty of fair representation under California Saw & Knife Works, 320 NLRB 224 (1995), and Communications Workers v. Beck, 487 U.S. 735 (1988), by requiring that a dues objector specify each expense category that s/he contends has been improperly allocated between chargeable and nonchargeable activities. The majority concluded that the Union's policy "simply places too high a burden on the objector's exercise of her right to challenge the Union's figures." Here, the majority found that the Union treated Charging Party Stoppenbrink's general challenge as a complete waiver of her right to challenge any union expenditures. Moreover, the majority concluded that the Union's failure to follow its own policy of placing the challenged portions of a dues objector's fees into escrow also violated the Act. [HTML] [PDF]

The majority adopted the judge's dismissal of the complaint allegation that the Union's financial disclosure statement unlawfully failed to explain the listed expenditure entitled "General and Defense Funds Reserve," noting that the Respondent's financial disclosure met and, in fact, exceeded what is required under California Saw & Knife. In so doing, the majority concluded that the Respondent's duty of fair representation was not breached by failing, at the pre-challenge stage, to explain the "General and Defense Funds Reserve." The majority adopted the judge's finding that the Respondent did not violate Section 8(b)(1)(A) by allocating its chargeable expenses on a "Local-wide" and "International-wide" basis rather than on a unit-by-unit basis. In addition, the majority reversed the judge and dismissed the allegation that the Respondent violated Section 8(b)(1)(A) by charging Stoppenbrink for extra-unit litigation expenses.

Member Brame would not apply the duty of fair representation standard in dues objection cases, finding that it "neither provides adequate protection of the Section 7 right to refrain from participating in union activity nor adheres to binding precedent." He criticized the Board for replicating its "misreading" of Beck and California Saw & Knife and set out a separate analysis for unions' obligations when dealing with dues objectors intended "to explicate the holding in Beck, to illustrate the dangers of applying the less rigorous duty of fair representation standard to the statutory rights of employees, and to offer a more appropriate analysis for protecting the rights of dissenting nonmembers." In addition, he would find that "as a matter of law, any expenditure found nonchargeable by the [Supreme] Court in public sector and [Railway Labor Act] cases is nonchargeable under the Act." Conversely, he would permit unions to charge for expenditures necessary for "maintaining their existence as bargaining agents," and for activity outside the objector's unit that ultimately inured to the unit's benefit. Finally, he would treat any activity on which the Court has not passed "as a mixed question of law and fact." Member Brame agreed with the majority's findings of violations, but would also have found that the Union violated Section 8(b)(1)(A) by including the "General and Defense Fund Reserve," by failing to provide Stoppenbrink with a breakdown of expenditures pertaining to her unit, and by charging her for extra-unit litigation.

Charges filed by Alexandria Stoppenbrink, an Individual; complaint alleged violations of Section 8(b)(1)(A). Hearing at Oakland, CA, Dec. 2-3, 1992. Decision issued by Adm. Law Judge Clifford H. Anderson, June 9, 1993.

ITT Industries, Inc. (7-CA-40946; 331 NLRB No. 7) Oscoda, East Tawas, and Tawas City, MI May 10, 2000. The Board reversed the administrative law judge and held that the Respondent violated Section 8(a)(1) of the Act by disparately enforcing its no-solicitation rule when two of its supervisors prohibited employee Karen Richardson from talking with other employees about the Auto Workers (UAW) during work, disagreeing with the judge's conclusion that the Respondent "was essentially telling Richardson not to bother her fellow employees at least one of whom had complained . . . and I see at most a de minimus or insignificant infringement on Karen Richardson's Section 7 rights." Viewing the disparate no-solicitation rule in the context of the Respondent's contemporaneous attempts to limit off-duty employees from engaging in solicitation activities in its parking lot, the Board affirmed also the judge's finding that the Respondent violated Section 8(a)(1) by its parking lot restrictions. In adopting the judge's dismissal of allegations that the Respondent violated Section 8(a)(1) by the manner in which its supervisor, Tony Orlando, drove his vehicle near some handbilling employees on May 5, 1998, the Board found that the General Counsel failed to present sufficient objective evidence showing that the employees could reasonably believe that Orlando's reckless driving was directed against union activity. [HTML] [PDF]

Charge filed by Auto Workers UAW; complaint alleged violation of Section 8(a)(1). Hearing at Tawas City on Jan. 20-21, 1999. Adm. Law Judge Martin J. Linsky issued his decision May 5, 1999.

Lexus of Concord, Inc. (32-CA-17396, 17442; 330 NLRB No. 198) Concord, CA April 28, 2000. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing unit employees' wages and its 401(k) pension plan for them, dealing directly with employees concerning the wage increases, and failing to furnish Machinists District Lodge 190, Local Lodge 1173 with requested information relevant to its collective-bargaining duties. No exceptions were filed to the judge's finding that the Respondent's preceding unfair labor practices tainted its withdrawal of recognition from the Union, that the Respondent withdrew recognition before a reasonable period of time for bargaining had elapsed following its execution of a settlement agreement, and that the Respondent's withdrawal of recognition thus violated Section 8(a)(5) and (1). The Board modified the judge's Order to include an affirmative provision directing that the Respondent supply the information sought. [HTML] [PDF]

Charges filed by Machinists District Lodge 190, Local Lodge 1173; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oakland on Oct. 27, 1999. Adm. Law Judge Joan Wieder issued her decision Feb. 3, 2000.

Tualatin Electric (36-CA-6874, 7099; 331 NLRB No. 6) Wilsonville, OR May 12, 2000. Members Fox and Liebman ordered that the Respondent pay backpay in the amounts set forth in the administrative law judge's supplemental decision to Edward Campbell ($8122), who was unlawfully discharged by the Respondent because he was a "salt," and discriminatees Steven Dietrich ($5291), Paul Kingston ($6046), Gary Mangel ($24,003) and Cal Caines ($7056), who the Respondent unlawfully refused to hire because they were "salts." Applying Ferguson Electric Co., 330 NLRB No. 75 (2000), Members Fox and Liebman found no merit to the Respondent's contention that the traditional construction industry backpay and reinstatement remedy should not apply to "salts" and that the discriminatees did not fulfill their obligation to mitigate backpay damages because they followed their normal pattern of seeking employment through the Union's hiring hall. The majority wrote: [HTML] [PDF]

Member Hurtgen, dissenting in part, disagreed that Dean General should be applied in determining the amount of backpay due in "salt" situations and he would place the evidentiary burden on the Union regarding the backpay period or the amount of gross backpay since "the Union is the party which proclaims and administers the policies under which its members can/cannot work for employers." See his dissent in Ferguson Electric. He concluded that Campbell is not due any backpay from July 31 to August 24, 1992, finding his quitting a job with a subsequent employer, Team Electric, on July 17 at the Union's request once it realized his "salting" efforts there would be unproductive, constituted a failure to mitigate backpay damages.

Hearing held at Portland on March 11-12, 1997. Adm. Law Judge Burton Litvack issued his supplemental decision Nov. 10, 1997.

Brinks Inc. (29-RC-8914; 331 NLRB No. 10) Brooklyn, NY May 12, 2000. Chairman Truesdale and Member Hurtgen, with Member Fox dissenting, found that the Union observer's conduct at the polls constituted objectionable electioneering under Boston Insulated Wire & Cable Co., 259 NLRB 1118 (1982), enfd. 703 F.2d 876 (5th Cir. 1983); set aside the election held November 21, 1997 (United Federation of Security Officers, Inc. won 177-163); and directed that a second election be held. [HTML] [PDF]

Union Observer Muhammad told four employees, as each one approached the observer table, to vote for the Union. One of the four employees (Rolean) told other employees, waiting to vote, what Muhammad had said. Muhammad also gave a "thumbs up" signal to other employees as they approached the table. The Employer's observer (Mayo) credibly testified that the Board agent gave both him and Muhammad instructions at the preelection conference not to converse "with the people coming in." The hearing officer credited Mayo's testimony that the Board agent admonished Muhammad for his conduct.

Chairman Truesdale and Member Hurtgen found that their dissenting colleague inappropriately relied on the hearing officer's finding that Muhammad did not greet voters "in the manner of an authority in control of the election." They wrote: "The relevant factor under Boston Insulated is whether Muhammad was an agent of a party. Clearly, he was such an agent. Further, . . . Muhammad, while acting as the Union's observer and agent, defied instructions from the Board agent and, inter alia, told employees, in the final seconds before they cast their ballots, how to vote. Thus, Muhammad's behavior met the criteria set forth in Boston Insulated and it is therefore appropriate to draw 'an inference that it interfered with the free choice of the voters.'"

Summa Health System, Inc. (8-CA-26463-1, et al.; 330 NLRB No. 197) Akron, OH April 28, 2000. The Board panel, including Member Hurtgen, who concurred in part and dissented in part, upheld nearly all of the administrative law judge's findings of violations of Section 8(a)(1), (3), and (5) of the Act, including a finding that the employees engaged in an unfair labor practice strike. However, the majority of Members Fox and Liebman agreed with the judge that the Respondent violated Section 8(a)(1) and (2) of the Act by creating an employer-dominated labor organization. Unlike the majority, Member Hurtgen found only that the Respondent violated Section 8(a)(5) when it bypassed the Union and created "Process Enhancement Teams" (PETs). Member Hurtgen reasoned that his remedy of the violation, i.e., ordering the Respondent to disband the PETs, would make it unnecessary to reach the issues of whether PETs are statutory labor organizations and whether 8(a)(2) was violated, citing his "contract coverage" analysis, rather than a waiver analysis, in Dorsey Trailers, Inc., 327 NLRB No. 155 (1999). Also, Member Hurtgen stated that viewing the totality of the Respondent's conduct and its offer to submit to binding arbitration, he cannot find that Respondent engaged in overall bad-faith bargaining. The majority countered by stating that its affirmance of the judge's finding of bad faith bargaining was not premised merely on the Respondent's "firm advocacy of certain significant contract changes [which] demonstrated an intent to avoid reaching an agreement," as Member Hurtgen stated. Rather, the majority noted that they based their finding on a variety of factors in addition to the finding that the Respondent continued to insist on sweeping proposals on work transfer, job classification, and wages. "This case is therefore distinct from other cases in which we have found a violation of Section 8(a)(5) purely on the basis of the substance of employer proposals, e.g., A-1 King Size Sandwiches, Inc., 265 NLRB 850 (1982), enfd. 732 F.2d 872 (11th Cir. 1984)." [HTML] [PDF]

Charges filed by AFSCME Local 684 and Ohio Council 8; complaint alleged violations of Section 8(a)(1), (2), (3), and (5). Hearing held Feb. 23-26 and March 23-26, 1998. Decision issued by Adm. Law Judge Thomas R. Wilks, March 29, 1999.

FES (A Division of Thermo Power) (5-CA-26276; 331 NLRB No. 20) York, PA May 11, 2000. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) of the Act by refusing to consider for employment 9 members of Plumbers Local 520. However, "given the confusion in the law" concerning the treatment of allegations of discriminatory refusals to consider or to hire applicants for employment and the stage at which the employer may present its defense, "which we have attempted to clarify today," the Board remanded the proceeding to the judge to consider, in an unfair labor practice hearing rather than at the compliance stage, whether any of the 9 applicants would have been hired, absent the discriminatory refusal to consider. Oral arguments in this case were heard by the Board on August 10, 1999. [HTML] [PDF]

The Board outlined its framework for litigating refusal-to-consider and/or hire cases by making clear the elements of the violation, the burdens of the parties, and the stage at which issues are to be litigated. To establish a discriminatory refusal to hire violation, the General Counsel must, at the hearing on the merits, show: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. If established, the respondent must show that it would not have hired the applicants even in the absence of their union activity or affiliation. The Board discussed the appropriate remedy for such violations and, in cases where the number of applicants exceeds the number of job openings, adopted the approach in Starcon, Inc. v. NLRB, 176 F.3d 948 (7th Cir. 1999).

To establish a discriminatory refusal-to-consider violation, the General Counsel must show at the hearing on the merits that (1) the respondent excluded applicants from a hiring process; and (2) antiunion animus contributed to the decision not to consider the applicants for employment. If established, the respondent must show that it would not have considered the applicants even in the absence of their union activity or affiliation. The Board discussed the appropriate remedy for this type of violation, including the requirement that the General Counsel must initiate a compliance proceeding if job openings arise after the beginning of the hearing on the merits. The Board stated that its approach "is appropriate notwithstanding the criticisms ... that there can be no violation of Section 8(a)(3) when no hiring is taking place and that the Board is improperly litigating issues of liability in a compliance proceeding that is confined to remedial issues." Thus, it stated that (1) a discriminatory refusal to consider may violate Section 8(a)(3) even when no hiring is occurring; and (2) the compliance proceeding for a refusal-to-consider violation is an appropriate forum for determining whether there was an actual job loss as a result of that refusal.

Chairman Truesdale and Member Liebman signed the majority opinion. Member Hurtgen concurred with most of the majority opinion, but expressed his "somewhat different views" on two points: (1) that proof of a hiring process is essential to a refusal-to-consider violation; and (2) in agreement with Member Brame, that "wage compatibility" is "not necessarily a code word for a discriminatory refusal to hire union members." Member Brame, concurring, stated that the clarified framework is "a substantial improvement over the ambiguous and, in many respects, conflicting mandates of the Board's prior case law in this area." Member Fox, concurring and dissenting in part, agreed with the majority's general framework, but did not agree that the General Counsel should have the burden to establish not only that antiunion animus contributed to the decision not to hire the alleged discriminatees, but also that the applicants were qualified for the jobs or that the requirements were pretextual or not uniformly followed.

Charge filed by Plumbers Local 520; complaint alleged violation of Section 8(a)(1) and (3). Hearing at York, PA, July 20, 1998. Decision issued by Adm. Law Judge Arthur J. Amchan, Sept. 29, 1998.

Carlisle Engineered Products (7-RC-21333; 330 NLRB No. 189) Lapeer, MI April 28, 2000. The Board disagreed with the hearing officer's recommendation that 11 processors (production equipment operators, who also perform manual production and repair functions) including the process engineer were supervisors under Section 2(11) of the Act. In so doing, the Board found merit to the Employer's exceptions to an election where the vote shows 90 for and 76 against the Petitioner (Auto Workers (UAW)), with 21 challenged ballots, a number sufficient to affect the results. In brief, the Board found that the processors' role in assigning work, granting time off, and disciplining employees did not involve the use of "independent judgment" and that the processors infrequent substitution for undisputed supervisors "is insufficient to clothe them with supervisory authority." In the absence of objections, the Board adopted the hearing officer's recommendations to overrule the challenges to the ballots of 4 other employees. Thus, the Board ordered that the ballots of 15 employees be opened and counted, and a revised tally issue. The challenges to 2 other ballots were held in abeyance for resolution only if they remain determinative after the revised tally. Dissenting, Member Hurtgen agreed with the hearing officer's "well-supported findings" that the 11 processors are statutory supervisors. [HTML] [PDF]

Trevilla of Golden Valley (18-RC-16297; 330 NLRB No. 193) Golden Valley, MN April 28, 2000. Contrary to the Regional Director, the Board concluded that the Employer's LPNs are statutory supervisors under Section 2(11) of the Act. In so doing, the Board found that the LPNs exercise independent judgment in completing the annual evaluations of nursing assistants and that the Employer relies on these evaluations to award specific merit increases, citing Bayou Manor Health Center, 311 NLRB 955 (1993). Chairman Truesdale and Member Brame granted the Employer's request for review solely on the issue of the LPNs' supervisory status with respect to their roles in the employer's evaluation and disciplinary processes. Dissenting on this point only, Member Hurtgen would grant the request for review in its entirety. In view of the finding that the LPNs are statutory supervisors based on their role in the wage determination process, the Board did not find it necessary to decide whether the LPNs' role in the disciplinary processes also conferred 2(11) status. (The Union involved here is Minnesota Licensed Practical Nurse Assn./Technical Employees Assn. of Minnesota.) [HTML] [PDF]

Midway Hospital Medical Center (31-RD-1399; 330 NLRB No. 199) Los Angeles, CA April 28, 2000. After considering the Employer's objections, the majority of Chairman Truesdale and Member Fox, certified Health Care Employees Local 399 as the exclusive collective-bargaining representative based on election results. Addressing Member Brame's dissent, the majority stated: "As our dissenting colleague suggests, unanswered messages by parties to the election may be construed as objectionable conversations under Milchem when those messages are directed at employees waiting to vote. See Fieldcrest Cannon, Inc., 318 NLRB 470, 566-567 (1995). However, [employee Joan] Boucher's polling area complaints were directed to Union Representative Dana Hahn, management officials, and the Board agent in the polling area. Although those complaints were loud enough to be overheard by employees who were outside that area and waiting to vote, we disagree with the dissenting opinion that Boucher could reasonably be viewed as attempting to communicate with them. We, therefore, find no Milchem violation." [HTML] [PDF]

Allison Corp. (26-CA-16943, et al.; 330 NLRB No. 190) Somerville, TN April 28, 2000. After considering exceptions to two of the administrative law judge's numerous findings of violations of the Act, the Board reversed the judge's conclusion that the Respondent violated Section 8(a)(5) and (1) by subcontracting unit work without providing the Union with prior notice and an opportunity to bargain about the decision to subcontract. Nevertheless, the Board concluded that the Respondent violated Section 8(a)(5) and (1) by failing to give the Union notice and affording it with an opportunity to bargain with respect to the effects of the subcontracting on bargaining unit employees. The Board agreed also with the judge that the Respondent violated the Act by failing and refusing to supply the Union with requested relevant information regarding the effects of such subcontracting. In addition, the Board dismissed the judge's finding that the Respondent violated Section 8(a)(1) by the participation of its supervisors in the circulation of a decertification petition. [HTML] [PDF]

Charges filed by Electronic Workers [IUE], Furniture Workers Division, Local 282; complaints alleged violations of Section 8(a)(1) and (5). Adm. Law Judge Robert C. Batson issued his decision April 8, 1997.

Dock Workers Local 1 (Trans Ocean Maritime Services, Inc.) (4-CB-8000; 330 NLRB No. 194) Gloucester, NJ April 27, 2000. Affirming the administrative law judge, the Board found that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by unlawfully causing the Employer not to employ Charging Party Morgan as a casual employee because he concertedly complained to agents of the Union about the operation of its hiring hall. In addition, the Board agreed with the judge that Morgan's protected activity caused the Union's agent to effectuate the discharge of Morgan, thus causing the Employer to discriminate against Morgan in violation of Section 8(a)(3). [HTML] [PDF]

Charge filed by William J. Morgan, an Individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Philadelphia, PA, Feb. 4-5, 1999. Decision issued by Adm. Law Judge David L. Evans, June 4, 1999.

Cyclone Fence (7-CA-42461; 330 NLRB No. 186) Grand Prairie, TX April 28, 2000. Applying Nathan Yorke, Trustee, 259 NLRB 819 (1981), the Board granted the General Counsel's motion for summary judgment, finding that the Respondent's response to a Notice to Show Cause why the motion should not be granted, has admitted or failed to specifically deny the complaint allegations and has not raised any issues warranting a hearing. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by ceasing operations, terminating all unit employees, and failing to pay them wages and appropriate fringe benefits, without prior notice to Laborers Local 1191 and without affording the Union an opportunity to bargain about the conduct or its effects. Although properly served copies of the charge and complaint, the Respondent failed to file an answer. In its response to the Notice to Show Cause, the Respondent admitted that it terminated its business and that unit employees have not been paid since September 30, 1999, acknowledged complaint allegations that it failed to bargain over the closing and the failure to pay employees, stated that it filed a petition in bankruptcy under Chapter 11 of the Bankruptcy Code, and requested that the case be stayed pursuant to 11 U.S.C. § 362 of the Bankruptcy Code. [HTML] [PDF]

In Nathan Yorke, the Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) by failing to bargain with the Union regarding the effects of its decision to terminate operations where the newly appointed bankruptcy trustee acted immediately upon learning of the Respondent's quickly dwindling assets. The Seventh Circuit enforced the Board's decision, as modified, finding that the emergency situation that confronted the trustee in bankruptcy excused the Respondent's obligation to notify the Union before the plant closure, but did not excuse its failure to bargain after the closing over the effects of the closure because "[o]nce operations had been terminated, the emergency situation ended." 709 F.2d 1138, 1144 (1983).

In this decision, the Board wrote in finding that the allegations in the motion for summary judgment are undisputed and that the Respondent violated Section 8(a)(5) and (1): "As in Nathan Yorke, it would appear that the emergency situation that the Respondent was confronted with here might excuse its failure to give prior notice to the Union and afford the Union with an opportunity to bargain about the decision to terminate operations prior to the actual shutdown. However, it also appears that once the 'operations had been terminated, the emergency situation ended,' and the Respondent's failure to bargain about the effects of the closing constitutes a violation of the Act." Id. 709 F.2d at 1144.

Charge filed by Laborers Local 1191; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment Feb. 1, 2000.

Allied Production Workers Local 12 (Northern Engraving Corp.) (18-CB-3913; 331 NLRB No. 2) Lansing, IA April 28, 2000. On a stipulated record, the Board found that the charge was untimely and dismissed the complaint alleging that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by continuing to enforce a checkoff authorization signed by Sherry Prichard and other employees despite their attempted revocation of those authorizations on January 30, 1998. [HTML] [PDF]

Prichard notified Northern Engraving Corp. of her resignation from the Union and attempted to revoke her checkoff authorization on January 30, 1998. By letter dated February 19, 1998, the Union informed Pritchard that it intended to continue to enforce the authorization and collect the service fees unless she submitted a "proper" revocation. The Respondent continued to receive service fees withheld from the employees' wages pursuant to their checkoff authorizations. The record does not contain any other correspondence between the employees and the Respondent after February 19. On April 19, 1999, Prichard filed the instant charge on behalf of herself and others alleging that the Union violated Section 8(b)(1)(A) by improperly receiving service fees after the employees resigned their union memberships. Prichard amended her charge on June 21, 1999 to allege that the Respondent violated Section 8(b)(2) by causing Northern Engraving to continue to withhold service fees pursuant to the checkoff authorizations after the employees had resigned from the Union.

The Board found that the dispute was clearly drawn upon Prichard's receipt of the Respondent's February 1998 letter. It noted however that Prichard did not file her original charge until 14 months later, April 19, 1999, well outside the 10(b) limitations period and that there was no other request for revocation of checkoff within the 10(b) period.

Charge filed by Sherry Prichard, an Individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Parties waived their right to a hearing before an administrative law judge.

Yoshi's Japanese Restaurant, Inc. d/b/a Yoshi's Japanese Restaurant & Jazz House (32-CA-16527; 330 NLRB No. 174) Oakland, CA April 27, 2000. The Board upheld the administrative law judge's findings of Section 8(a)(1) and (3) violations of the Act, including threatening facility closure, interrogating employees, soliciting employee grievances, and granting favorable compensation changes to discourage and discriminate against employees' union and concerted activities. Member Hurtgen, dissenting in part, disagreed only with the judge's finding that Respondent's owner unlawfully interrogated 2 specific employees, finding instead that the owner asked general, noncoercive questions to open union advocates. The Board agreed with the judge's decision not to impose a Gissel bargaining order and that traditional remedies were appropriate. However, the Board did not adopt all of the judge's rationale particularly her conclusion that the Respondent's actions did not indicate outright animosity towards unions or a desire to rid itself of the Union, but rather a "misunderstanding of the law." In so doing, the Board stated, inter alia, that the motives behind an employer's statements on the consequences of unionization are not relevant and that ignorance of the law does not excuse or mitigate discriminatory or unlawful actions. [HTML] [PDF]

Charge filed by Hotel and Restaurant Employees Local 2850 and its International; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Oakland, CA, May 6-8, 1998. Decision issued by Adm. Law Judge Mary Miller Cracraft, September 18, 1998.

Dico Tire, Inc. (10-CA-28843, 29109; 10-RC-14650; 330 NLRB No. 177) Clinton, TN April 17, 2000. Ruling on exceptions to an administrative law judge's finding of certain Section 8(a)(1) and (3) violations and objections to an election, the majority of Chairman Truesdale and Member Fox found that the judge correctly allowed the General Counsel to amend its complaint to add an allegation that the Respondent unlawfully solicited grievances during the union campaign on the ground that the new allegation was closely related to the general theory and substance of the original charges, and therefore was not time-barred by Section 10(b). Member Hurtgen disagreed, citing his dissent in Ross Stores, 329 NLRB No. 59 (1999), and stating that the factors in Redd-I, Inc., 290 NLRB 1115 (1988), were not met. Among other things, he noted that "the theory of the allegation of soliciting grievances is substantially different from the theory of the timely allegations of threats and interrogations," and that the General Counsel's motion came at the end of the trial and did not allow for defense preparation. [HTML] [PDF]

The Board agreed with the judge that that employee Long's discharge violated Section 8(a)(3). Long, a union supporter with an "unblemished work record," was discharged when he went home early after reporting that he was sick on the day Respondent reassigned him to work at a machine that it knew would aggravate his back problem. Citing Paradise Post, 297 NLRB 876 (1990), Chairman Truesdale and Member Fox stated that Respondent provoked Long's conduct and seized on this incident to claim that Long had quit to "rid itself of a union supporter," and that Long was disparately treated because other employees who left work without telling anyone were not treated as having quit their jobs. Member Hurtgen agreed with the result but did not rely on Paradise Post and would not reach the issue of whether the Respondent provoked the misconduct. On other issues, the Board reversed the judge and concluded that threats made by worker Pitts did not violate Section 8(a)(1) because Pitts is not a statutory supervisor. The judge's finding that Respondent violated Section 8(a)(1) when it threatened loss of jobs if the union were elected, was upheld. A second election was ordered.

Charges filed by Steelworkers; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Knoxville, TN, April 17-19, 1996. Decision issued by Adm. Law Judge Lawrence W. Cullen June 4, 1997.

Fritz Companies, Inc. (12-CA-17713, et al.; 330 NLRB No. 183) Miami, FL April 21, 2000. The administrative law judge found, with Board approval, that on October 22, 1996, the Respondent engaged in discrimination in violation of Section 8(a)(3) and (1) of the Act, and in unilateral changes in employment conditions in violation of Section 8(a)(5) and (1), when it laid off six prounion warehouse employees who previously had been truckdrivers for the Respondent. The Board rejected the Respondent's exception to the 8(a)(5) and (1) finding concerning the layoffs. The Respondent contended that Teamsters Local 390 in fact received notice and an opportunity to bargain on the day before the layoffs. The Board found no merit to another Respondent exception in affirming the judge's finding that it violated Section 8(a)(1) when its security agent showed discriminatee Aldo Gomis a security report relating that a supervisor had been overheard the day before encouraging an employee to attack Gomis physically. [HTML] [PDF]

Charges filed by Teamsters Local 390 and Individuals; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Miami, Sept. 8-10 and Sept. 29-30, 1997. Adm. Law Judge Pargen Robertson issued his decision Feb. 2, 1998.

Overnite Transportation Co. (12-CA-18110, et al.; 330 NLRB No. 184) Miami, FL April 20, 2000. Affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally subcontracting bargaining unit work, unilaterally changing starting times of dockworkers, unilaterally requiring employees to call in before reporting to work, and failing to provide Teamsters Local 390 with a copy of a complaint letter from a Home Deport store in relation to the discipline of Carlos Ramirez. Unlike the judge, the Board found that the Respondent unlawfully failed to provide a complaint letter regarding Ramirez from customer Eurostyle. The Board decided to allow the General Counsel, at the compliance stage of this proceeding, to show whether the unit employees should be granted a monetary remedy for the Respondent's unlawful unilateral changes (i.e., subcontracting, changes to the starting time, and institution of a call-in procedure). The Board expressed no view as to the merits of the General Counsel's arguments, but it noted that he should not be precluded from advancing them. Member Hurtgen dissented in part. [HTML] [PDF]

As to the subcontracting issue, Members Fox and Liebman wrote in deciding, unlike their dissenting colleague, to adhere to the Board's view as articulated in Torrington Industries, 307 NLRB 809 (1992).

"Like our Torrington predecessors, we agree with our colleague that, in some cases, nonlabor cost reasons for subcontracting may provide a basis for concluding that a decision to subcontract is not a mandatory subject of bargaining. Unlike our colleague, however, we would follow Torrington by reserving such inquiries to cases where the nonlabor cost reasons relate to a change in the scope and direction of a business and are therefore matters of core entrepreneurial concern outside the scope of bargaining. It is manifest (and undisputed) that the instant case does not involve a change in the scope and direction of the Respondent's business. In our view, that fact outweighs the factual distinctions mentioned by our colleague among the instant case, Torrington, and Fibreboard. [Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964)]

In particular, we reject our dissenting colleague's contention that Torrington is inapplicable because no current unit employees lost their jobs as a result of the subcontracting and there was therefore 'no direct adverse impact' on the unit. At issue here is a decision to deal with an increase in what was indisputably bargaining unit work by contracting the work to outside subcontractors rather than assigning it to unit employees. We think it plain that the bargaining unit is adversely affected whenever bargaining unit work is given away to nonunit employees, regardless of whether the work would otherwise have been performed by employees already in the unit or by new employees who would have been hired into the unit. In any event, it is not clear in this case that the Respondent's current employees did not themselves, lose work. The Board's decision in Acme Die Casting, 315 NLRB 202 (1994), is instructive in this regard. . . . . Similarly, in this case, the Respondent's regular employee drivers 'might' have lost at least the opportunity for additional work, and, as the judge stated in Acme Die Casting, '[t]he fact that no employees were laid off or suffered a reduction in their workweek-even if true-is irrelevant.' Id. at 209."

Member Hurtgen concluded that Torrington Industries was wrongly decided and even if Torrington is good law, it is distinguishable because there the Board limited its holding to those cases factually similar to Fibreboard, in which all that is changed through the subcontracting is the identify of the employees doing the work. 307 NLRB at 811. Member Hurtgen found the Third Circuit's analysis in Dorsey Trailers, Inc. v. NLRB, 134 F.3d 125 (3d Cir. 1998), persuasive. He wrote:

"Similarly, here the Respondent's decision was aimed at the increase in freight volume relative to available manpower and was not motivated by a desire to reduce labor costs. Another striking similarity between Dorsey Trailers and the instant case is the lack of impact on unit employees. Here, as in Dorsey, the subcontracting had no direct adverse impact, in any measureable way, on the existing complement of bargaining unit employees." Addressing his colleagues' statement that the instant decision "might" have an impact on employees, albeit a future one, Member Hurtgen reasoned that assuming arguendo there was such an impact, it does not mean that the decision was a mandatory subject. He noted that under the third category of First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), "a decision with an impact on employment is a mandatory subject only if the benefits for collective bargaining outweigh the burdens; that is not the situation here."

Charges filed by Teamsters Local 390 and Johnny A. Fryer and Hugo Hernandez, Individuals; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Miami, Dec. 9-12, 1997 and Feb. 2-5, 1998. Adm. Law Judge Raymond P. Green issued his decision June 8, 1998.

American Golf Corp., d/b/a Mountain Shadows Golf Resort (20-CA-26942, et al.; 330 NLRB No. 172) Rohnert Park, CA April 17, 2000. The Board affirmed the administrative law judge's finding that the Respondent unlawfully issued written warnings to Eli Jensen in the first months following his return from layoff in August 1995 and that Jensen was engaged in protected activity on March 4, 1996, when he placed a call to a competitor of the Respondent urging him to attend a city council meeting scheduled for the following day. Contrary to the judge, the Board found that Jensen's distribution of a handbill outside the city council chamber on March 5, 1996, was unprotected under NLRB v. Electrical Workers UE Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). [HTML] [PDF]

The Board remanded the case to the judge for a finding as to whether the Respondent established its asserted defense under Wright Line that it would have suspended and discharged Jensen for his unprotected distribution of the handbill even if he had not made the protected March 4 phone call. The Respondent did not dispute that it relied on both incidents as the basis for its actions against Jensen, but it argued at trial and in exceptions to the judge's decision that it would have discharged Jensen for distributing the March 5 flyer even if he had not made the March 4 phone call. Because the judge concluded that both activities were protected, he made no findings with regard to this contention.

From October 1995 through January 1996, Jensen communicated extensively with Rohnert Park city officials and members of the city council regarding his ongoing disagreement with the Respondent over the treatment of maintenance employees at the city-owned public golf course that the Respondent managed. On March 2 and 3, 1996, Jensen prepared and distributed to area residents a handbill complaining about alleged bad-faith bargaining by the Respondent and the city council's failure to intervene and urging residents to attend the city council meeting on March 5 and to support the maintenance employees. On March 4, Jensen tried to speak with the owner of one of the Respondent's competitors, but he was able only to leave a message.

Applying Jefferson Standard, the Board found that Jensen's March 4 phone call to the Respondent's competitor was protected because it was expressly related to the maintenance employees' ongoing dispute with the Respondent and nothing said by Jensen in the course of the call was so flagrantly disloyal, reckless or maliciously untrue as to cause him to lose the Act's protection. The credited testimony is that Jensen simply left a message inviting the owner to the March 5 city council meeting. However, the Board said that Jensen's distribution of the March 5 flyer is "the type of conduct that the Court found to be beyond the protection of the Act in Jefferson Standard." It explained: "Like the handbill at issue in that case, Jensen's March 5 flyer 'made no reference to a labor controversy or to collective bargaining.' 346 U.S. at 468. Like the Jefferson Standard handbill, it made a 'sharp, public, disparaging attack upon the quality of the company's product and its business policies, in a manner reasonably calculated to harm the company's reputation and reduce its income.' Id. at 471. And like the Jefferson Standard handbill, although its ultimate purpose-to put pressure on the Respondent with respect to negotiations with the Union-was lawful, '[T]hat purpose . . . was undisclosed.' Id. at 972, quoting 94 NLRB at 1511."

Charges filed by Laborers Local 139 and Eli Jensen, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at San Francisco, May 13-16, 1997. Adm. Law Judge William L. Schmidt issued his decision July 2, 1998.

WWOR-TV (22-CA-21674; 330 NLRB No. 180) Secaucus, NJ April 17, 2000. Members Liebman and Brame, with Member Hurtgen dissenting, agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with NABET-CWA since October 17, 1996 and by unilaterally changing employees' terms and conditions of employment in the absence of a bargaining impasse. [HTML] [PDF]

The Respondent and the Union have been parties to several collective-bargaining agreements, the most recent of which ran from November 1, 1993 to October 31, 1996. In September through October 17, 1996, the Respondent took the position that the Respondent had failed properly to terminate the 1993-1996 agreement, that the contract had automatically renewed for a year pursuant to its terms, and that the Union had no obligation to bargain with the Respondent for a new contract. On October 3, the Respondent announced that it intended to implement new terms and conditions of employment effective November l. On October 17, the Union replied that, without prejudice to its position that the Respondent had failed to terminate the current contract, the Union was prepared to bargain unequivocally and unconditionally for a new contract. On October 31, the Union filed a grievance claiming that the Respondent had not properly terminated the current contract. At a meeting on November 6, the Union advised the Respondent that although it was not abandoning its position regarding the termination of the contract, it was ready to bargain unconditionally. The Union repeated during the meeting that it was present to bargain unconditionally. The Respondent ended the meeting without having engaged in any bargaining with the Union. On November 7, the Respondent cancelled the meeting that had been scheduled for that date. On December 18, the Respondent implemented the new terms and conditions of employment it had announced earlier.

The judge found, and the majority agreed, that although the Union initially refused to bargain with the Respondent for a new contract, on and after October 17 it offered to bargain unconditionally. The majority also found that the Union's pursuit of its claim that the 1993-1996 contract had automatically renewed did not disable it from negotiating with the Respondent for a successor agreement. Member Liebman found it unnecessary to rely on the judge's analogy of the Union's pursuit of its grievance to the situation in which an employer is refusing to bargain with a union in order to obtain court review of the validity of the union's certification. Member Brame found the judge's analogy "quite apropos here." It is noted in the decision that because only one Board member in the majority relies on the judge's analogy, it is not part of the majority's rationale.

Dissenting Member Hurtgen wrote: "Even assuming that the Union corrected its conduct on and after October 17, when it relented from an absolute refusal to meet with the Respondent to negotiate a successor agreement, the Union conditioned all bargaining on its pursuit of efforts to hold the Respondent to the prior contract. Under these circumstances, the Respondent was legally entitled to refuse to negotiate and to make the unilateral changes at issue."

Charge filed by NABET-CWA; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, June 17-18, 1997. Adm. Law Judge Steven Davis issued his decision July 16, 1998.

Narraguagus Bay Health Care Facility (1-CA-37634; 330 NLRB No. 182) Millbridge, ME April 20, 2000. On a motion for summary judgment, the Board found that the Respondent, by its own admission, violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain in good faith with the Union and by failing to pay health insurance premiums under the collective-bargaining agreement. The Respondent filed an answer to the General Counsel's complaint, admitting all allegations, but failed to file a response to the General Counsel's motion for summary judgment. [HTML] [PDF]

Charge filed by Downeast Federation of Nurses & Health Professionals Local 5073; complaint alleged violation of Section 8(a)(1) and (5). The General Counsel filed his motion for summary judgment on March 22, 2000.

Morley Investments and Construction, Inc. (28-CA-14900; 330 NLRB No. 188) Las Vegas, NV April 24, 2000. The Board upheld the administrative judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union. In so doing, the Board relied only on the judge's finding that the General Counsel did not prove that the Union's majority status was established by the Respondent's employee poll. Thus, the Board found it unnecessary to pass on the judge's alternative findings that (1) the General Counsel was precluded from proceeding with this matter because a prior settlement barred the issue from relitigation, and (2) that the Board's rationale in Tennessee Shell Co., 212 NLRB 193 (1974), petition for review denied sub nom. mem. Carpenters, Southern Council of Industrial Workers v. NLRB, 515 F. 2d 1018 (D.C. Cir. 1975), requires dismissal of the complaint. [HTML] [PDF]

Charge filed by Building Trades Organizing Project; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Las Vegas, NV, Jan. 21, 1999. Decision issued by Adm. Law Judge Gerald A. Wacknov, March 31, 1999.

Delchamps, Inc. (15-CA-13401, et al.; 330 NLRB No. 187) Hammond, LA April 21, 2000. The Board upheld numerous findings of Section 8(a)(1) and (3) violations by the Respondent committed during a union organizing campaign and after an election where the Union lost. In so doing, the Board agreed with the administrative law judge that the Respondent's discharging of 14 employees and threatening 1 employee with discharge less than 3 weeks after it entered into an informal settlement agreement disposing of the numerous 8(a)(1) and (3) charges was a sufficient basis to vacate and set aside the settlement agreement. [HTML] [PDF]

Charges filed by Teamsters Local 270 and Individuals; complaint alleged violations of Section 8(a)(1) and (3). Hearing at New Orleans, LA, May 5-9 and June 10-11, 1997. Decision issued by Adm. Law Judge C. Richard Miserendino, May 5, 1998.

K.T.I., Inc. (22-RC-11766; 330 NLRB No. 185) Newark, NJ April 20, 2000. The majority of Members Fox and Liebman adopted the Acting Regional Director's findings and recommendation to set aside an election lost by General Industrial Union Local 108, LIUNA, and to direct a second election because "the Region failed to take any steps to address the problem with the Excelsior list [until] the day before the election, despite the Petitioner having complained of the problem no later than a full week before the election and perhaps as much as 2 weeks." Dissenting Member Hurtgen would not overturn the election results "particularly where, as here, the fault lies with the Region" and not with the Employer, without giving the Employer an opportunity for a hearing to resolve factual questions on the issue of whether the Regional Office's failure to take earlier action on the Excelsior list resulted in an invalid election. [HTML] [PDF]

Harborside Healthcare, Inc. (8-RC-15774; 330 NLRB No. 191) Swanton, OH April 24, 2000. Members Fox and Liebman found, contrary to the Regional Director, that the authority of the Employer's charge nurses (CNs) to evaluate and call in employees fails to establish that CNs are statutory supervisors within the meaning of Section 2(11) of the Act. Teamsters Local 20 is seeking to represent a unit consisting of 15 registered nurses (RNs), 18 licensed practical nurses (LPNs) (both RNS and LPNs are referred to as CNs), and 35 state tested nursing assistants (STNAs) at the Employer's long term care nursing facility located in Swanton, Ohio. The majority noted there was no evidence of a direct link between the CNs evaluations and pay increases and that the nurses' role is "more akin to that of more experienced lead employees, who submit to higher authority their opinions on the abilities of the employees that they evaluate." The Employer failed to demonstrate that the CNs' recommendations of continued employment or their ratings in connection with employee evaluations are directly correlated with either job retention or wage increases, and are thereby effective, the majority held. It also found, contrary to the Regional Director, that the CNs' authority to call in employees is routine and does not require the exercise of independent judgment. [HTML] [PDF]

Member Hurtgen, dissenting, agreed with the Regional Director that the CNs are supervisors, relying particularly on the fact that CNs-when designated as shift supervisors-have authority to call-in RNs, LPNs, and STNAs, and the authority to reassign those nurses and assistants in order to meet staffing needs. He further found that the CNs are supervisors based on their role in evaluating STNAs.

Bethlehem Temple Learning Center (9-CA-35206; 330 NLRB No. 166) Cincinnati, OH April 11, 2000. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by discharging the alleged discriminatees for their protected concerted activity in opposing a noncompetition agreement at a staff meeting and their subsequent discussions held in the Respondent's parking lot. Agreeing with the judge, the Board found that the General Counsel established a prima facie case that the Respondent failed to rebut. The Board noted the timing of the discharges occurring the next business day after the staff meeting, the Respondent's pretextual reasons for the discharges (tardiness, insubordination and failing to report to work as scheduled), its negative reaction to employee attempts to ask questions about the agreement at the meeting, and the Respondent's reliance on its concern that the employees would engage in a work stoppage. The Board added that the Respondent denied that the discharges were due to the alleged discriminatees' failure to sign the noncompetition agreements and has failed to offer any reasons for the terminations apart from the reasons it rejected. [HTML] [PDF]

Pursuant to Section 102.177(e) of the Board's Rules and Regulations, the Board referred the alleged misconduct at the trial by the Respondent's consultant, Rayford T. Blankenship, as set forth in section III,C of the judge's decision, to the Investigating Officer, the Associate General Counsel, Division of Operations-Management.

Charge filed by Cecelia Rainey, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Cincinnati, March 3-4 and May 11-12, 1998. Adm. Law Judge Richard H. Beddow Jr. issued his decision Aug. 20, 1998.

Detroit Paneling Systems (7-CA-39842; 330 NLRB No. 168) Detroit, MI April 10, 2000. Chairman Truesdale and Member Liebman, with Member Hurtgen dissenting, agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Cedrick Greenhill because of his activities for the Michigan Regional Council of Carpenters. Given the Respondent's knowledge of Greenhill's union activity, the Respondent's expressed hostility toward unionization, and the proximity in time between Greenhill's union activity and his discharge, the majority agreed with the judge that the General Counsel made a strong showing that the discharge was unlawfully motivated. The majority did not agree with dissenting Member Hurtgen that the Respondent demonstrated it would have discharged Greenhill absent his union activity. The Respondent gave Greenhill two reasons for his discharge: poor work and insubordination. [HTML] [PDF]

On another alleged violation, the Board agreed with the judge that the Respondent violated Section 8(a)(3) and (1) by discharging Edward Musser because of his union activity. The Respondent claimed that it discharged Musser allegedly because he "falsified" his employment application by stating that he had been employed by Century Truss Company from June 1986 until April 1997 when, in fact, he only actively worked there until July 1996. The Board, finding that there was no falsification, concluded that the Respondent "seized the pretext it was searching for and summarily discharged Musser, thereby following on the threats it made to discharge union supporters."

Charge filed by Michigan Regional Council of Carpenters; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit on Nov. 5, 1997. Adm. Law Judge Karl H. Buschmann issued his decision March 19, 1998.

Peter Scalamandre & Sons, Inc. and Sea Crest Construction Corp. (34-CA-8354, 8369; 330 NLRB No. 170) Freeport, NY April 12, 2000. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging equipment operator Rick Christmann because of his nonmembership in Operating Engineers Local 825 and that the Respondent did not unlawfully discharge equipment operator Albert Christmann because he was not a member of Operating Engineers Local 138. No exceptions were filed to the judge's dismissal of the allegation that the Respondent threatened R. Christmann with termination because he was not a member of a labor organization in violation of Section 8(a)(1). [HTML] [PDF]

The judge found that the General Counsel established a prima facie case as to R. Christmann, but he found no evidence of animus toward A. Christmann. The evidence showed that R. Christmann was abruptly terminated after more than 6 months on the job without any explanation; that the Respondent had signed a collective-bargaining agreement with Local 825 requiring that it use the Union's hiring hall by the time of the discharge; that the Respondent omitted R. Christmann's name from its certified list of employees on its payroll performing work within the Union's jurisdiction; and that the only other nonunion equipment operator joined Local 825 a few days before R. Christmann's discharge and a Local 825 member began working for the Respondent the next working day. The judge noted the timing of the discharge, the Respondent's false and shifting reasons (lack of work and lack of skills), and R. Christmann's credited testimony that foremen Beck and Leahy told him that Local 825 wanted him off the job. Although the Respondent is not responsible for the statements because they are outside the scope of apparent authority held by the two foremen and are hearsay, the "statements suggest that the Respondent may have been acting at the request of Local 825 when it terminated Rick Christmann," the judge said, noting that no other credible reason has been advanced for the Respondent's decision.

In adopting the judge's finding that the allegation that the Respondent unlawfully terminated A. Christmann was not barred by Section 10(b), Member Brame does not rely on Ross Stores, Inc., 329 NLRB No. 59 (1999). And, in adopting the judge's finding that the General Counsel has established a prima facie case that the Respondent's discharge of R. Christman violated Section 8(a)(3) and (1), Member Brame found it unnecessary to rely on statements by employees Leahy and Beck.

Charges filed by Albert Christmann and Rick Christmann, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, June 7-8, 1999. Adm. Law Judge Michael A. Marcionese issued his decision Oct. 29, 1999.

James H. Wood, d/b/a Cruise and Tour Services (21-CA-32819, 33048; 330 NLRB No. 181) San Pedro, CA April 14, 2000. Affirming the administrative law judge, the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Jean Tober, Pauline Becker, and Myrna Mendoza because of their activities for the Longshore and Warehouse International; and violated Section 8(a)(1) by creating the impression among its employees that their union activities were under surveillance and interrogating them about their protected, concerted activities. The five main witnesses in this case were the three discriminatees and Martina Wertz, Respondent's manager of operations, and Owner James Woods. The judge found that Tober was the most credible witness and he relied on her testimony for all factual findings. In contrast, he found Wertz the least credible and did not place any reliance upon her testimony. [HTML] [PDF]

The Board, in affirming the judge's conclusion that the Respondent unlawfully discharged Tober, Becker, and Mendoza, did not rely on his statement that there was no evidence that Lilia Schaefer or Verna Smirnoff reported alleged misconduct by Tober or Mendoza to the Respondent. Schaefer, whom the judge credited (as he also did Smirnoff), testified without contradiction that she reported alleged misconduct by Mendoza to Wertz, the Board said. It found, however, that the Respondent did not rely on the report in deciding to discharge Tober, Becker, and Mendoza. In adopting the judge's finding, based largely on credibility, that the Respondent waived its 90-day probationary period as to the discriminatees, the Board found it unnecessary to pass on his opinion that the waiver would have been a good business decision on the Respondent's part. In adopting the judge, Member Brame found Lampi LLC, 327 NLRB No. 51 (1998), cited by the Respondent, to be distinguishable.

Charges filed by the Longshore and Warehouse International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, March 15-16 and April 15, 1999. Adm. Law Judge Burton Litvack issued his decision May 14, 1999.

Southwest Gas Corp. (28-CA-16198-1; 330 NLRB No. 171) Phoenix, AZ April 11, 2000. The Board, finding that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding, granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing Electrical Workers IBEW Local 769's request to bargain following the Union's certification as exclusive representative in the underlying representation proceeding, Case 28-RC-5742. [HTML] [PDF]

The Respondent admitted its refusal to bargain, but attacked the validity of the Board's certification, claiming that it was the result of a "fraud" perpetrated on the Board by counsel for the Union in the representation proceeding. The alleged "fraud" is the union counsel's assertion, in briefs filed with the Board in the representation case, that the Union had to intervene in the proceedings of the Arizona Corporation Commission regarding a proposed merger of the Respondent with another gas company before the election. The Respondent asserted that the Board relied on the allegedly false statement in overruling the Respondent's election Objection 8 and in finding two circuit court cases relied on by the Respondent to be distinguishable from the facts presented in the representation case.

The Board found that all representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce any newly discovered and previously unavailable evidence, nor does not allege any special circumstances that would require the Board to reexamine the decision made in Case 28-RC-5742. It noted that the Respondent raised a similar argument in the representation proceeding in its Reply in Support of Motion for Leave to File Supplemental Evidence which, due to an administrative error, was not brought to the Board's attention and was not considered in the representation proceeding. The Respondent there claimed that the Union "misrepresent[ed] the evidence of the proceedings before the Arizona Corporation Commission" and that the Union "could have intervened at any time after the May 19, 199 election and before July 16, 1999."

The Board, having considered the reply and finding no merit in the assertions raised, stated: "As is readily apparent from the Board's decision, the Board did not rely on the union counsel's assertions regarding the timing of the Union's intervention in the Arizona Commission proceedings in distinguishing the two circuit court decisions relied on by the Respondent. Thus, we find that the Respondent's arguments regarding alleged 'fraud' do not raise issues warranting a hearing or the denial of the General Counsel's Motion for Summary Judgment, but instead are nothing more than an attempt to relitigate the merits of the representation case."

Charge filed by Electrical Workers IBEW Local 769; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment Feb. 8, 2000.

Allied Signal, Inc. (34-CA-7266, 7302; 330 NLRB No. 175) Stratford, CT April 12, 2000. Overruling the administrative law judge, the majority of Members Fox and Liebman held that the Respondent violated Section 8(a)(5), (1), and 8(d) of the Act by prematurely and unilaterally terminating at mid-term the job-protection competitiveness agreement (CA) of the collective-bargaining contract and by transferring engine work out of its Stratford plant to its Phoenix, AZ plant -- "over half a continent away." The Respondent operates the "Stratford Army Engine Plant," a military contracting operation on a military base it leases from the federal government. In its decision, the majority stated that the judge erred when he applied NCR Corp., 271 NLRB 1212, 1214 (1984), and when he determined that there was no need to definitively interpret the contract language at issue because Respondent's interpretation had a "sound arguable basis." Instead, the majority found that the issue of whether the Respondent could lawfully cancel the CA is "more than a mere matter of contract interpretation. [I]t is situated at the threshold of matters going to the heart of the collective-bargaining relationship and to the Respondent's duty to bargain in accordance with the Act." Based on undisputed evidence, the majoirty concluded that the Respondent was not privileged to terminate the CA because it had not satisfied certain provisions of that agreement which were a prerequisite to early termination, including its obligation to apply for federal fiscal-1996 funding, despite the fact that the base had been identified by the federal government for closure. The majority stressed that it found that the CA was the product of collective-bargaining on a mandatory subject, not that the Respondent's decision to relocate was a mandatory subject of bargaining. They found it unnecessary to reach the two other 8(a)(5) allegations addressed by the judge. [HTML] [PDF]

Dissenting, Member Hurtgen, citing NCR Corp., found that the Respondent did not breach the CA, and that even if it did, the breach was "reasonable," noting a "significant distinction" between a contract breach and a Section 8(d) "termination or modification." He stated: "Thus, if the employer terminates the whole contract or only modifies one of its terms, without a reasonable position, such conduct is unlawful under Section 8(d). Similarly, if the employer has a good-faith position on the contractual issue, such conduct is at most a contract breach, irrespective of whether the case involves a single clause or the entire contract." Here, Member Hurtgen argued, the Respondent was "not unreasonable" when it did not apply for federal fiscal-1996 funding because it believed such an effort would have been "futile" since the base had been targeted for closure.

Charges filed by United Auto Workers Locals 376 and 1010; complaint alleged violations of Section 8(a)(5) and (1). The hearing took place on 16 days from Sept. 18 - Dec. 19, 1996. Adm. Law Judge D. Barry Morris issued his decision April 21, 1997.

Allied Signal, Inc. (34-CA-7898-2, 7905; 330 NLRB No. 176) Morristown, NJ April 12, 2000. In accordance with the administrative law judge, the majority of Members Fox and Liebman found that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain in good faith when it unilaterally extinguished severance benefits as soon as the Effects Bargaining Agreement expired. They stated: "Our dissenting colleague misperceives the essential issue in this case. The issue is whether the Respondent was obliged under Section 8(d) ... to maintain existing conditions concerning severance benefits after the expiration of the Effects Bargaining Agreement, not whether the Respondent had an enforceable contractual obligation. As the judge thoroughly explained, the Respondent did have such a maintenance-of-status-quo obligation under Section 8(d)." Citing "black-letter labor law," the majority stated that the "contract coverage theory" on which dissenting Member Hurtgen relies "is entirely inapposite." [HTML] [PDF]

Charges filed by United Auto Workers Locals 376 and 1010; complaints alleged violations of Section 8(a)(1) and (5). Hearing at Hartford, CT, Oct. 6-7, 1998. Decision issued by Adm. Law Judge Wallace H. Nations Nov. 30, 1998.

Brusco Tug and Barge Co. (19-CA-26716; 330 NLRB No. 169) Longview, WA April 11, 2000. The Board granted the General Counsel's motion for summary judgment and found that the Respondent violated Section 8(a)(1) of the Act by promulgating and distributing to employees classified as mates a rule that any mate who participates in or encourages union activity will be terminated. In so doing, the Board noted that the Respondent relied solely on the record of a prior representation proceeding where a Board majority upheld the Regional Director's decision that the mates were "employees" and not "supervisors." The Respondent admitted it promulgated the rule and unequivocally stated that it did not desire to present any additional evidence regarding the employee status of mates in this proceeding in order to facilitate judicial review of the issue. The Board commented that, although the Respondent chose not to, it had a right to relitigate the status of the mates in this proceeding: "Unlike in an 8(a)(5) case where an employer is refusing to bargain in order to challenge a union's certification, when, as here, independent violations of Section 8(a)(1) or (3) are alleged, and the resolution of those issues turns on the status of certain individuals, the determination in a previous representation proceeding that those individuals are employees rather than statutory supervisors does not have binding force and may be relitigated." However, the Board stated that it may accord a certain "persuasive relevance, a kind of 'administrative comity'" to the prior representation case findings, subject to reconsideration and any additional evidence adduced in the unfair labor practice case. Since Respondent raised nothing new in this proceeding and there were no contested facts, the violation was found on summary judgment. Member Hurtgen noted that he dissented from the denial of review in the prior representation case, but agreed "for institutional reasons" that summary judgment is appropriate here. [HTML] [PDF]

Charge filed by International Organization of Masters, Mates, and Pilots, Pacific Maritime Region; complaint alleged violation of Section 8(a)(1). General Counsel filed motion for summary judgment Feb. 24, 2000.

St. Vincent Health System (26-RC-8124; 330 NLRB No. 155) Little Rock, AR March 24, 2000. The Board agreed with the hearing officer that the election, lost by Office and Professional Employees International, must be set aside and a new election held because of threats to employees by the Nursing Director and the Director of the Coronary Care Unit. The Board declined to follow the hearing officer's suggestion to conduct the second election by mail ballot on the grounds that the parties' stipulated election agreement mandated a manual election, citing T&L Leasing, 318 NLRB 324, 326 (1995), for the premise that agreements cannot be set aside absent unusual circumstances that make them impossible to perform. The hearing officer urged the Board to direct a mail ballot election because the manual election involved 105 hours of voting over 3 days at 3 different sites at substantial expense to the Board and resulted in a 90% voter turnout instead of the typical 95%. Also, mail balloting would eliminate the allegations of improprieties that occurred during the manual election, such as list keeping, campaigning among voters in line, and misconduct by election observers, the hearing officer reasoned. [HTML] [PDF]

Capri Sun, Inc. (14-RC-11831; 330 NLRB No. 158) Granite City, IL March 31, 2000. The majority of Members Fox and Liebman affirmed the Acting Regional Director's determination that the maintenance leads are neither statutory supervisors nor managerial employees. Contrary to the Acting Regional Director and dissenting Member Hurtgen, the majority found the petitioned-for maintenance unit is an appropriate unit for bargaining because it has a community of interest sufficiently separate from the Employer's production employees to constitute a distinct, cohesive grouping of employees. Unlike production employees, community of interests factors among maintenance leads include a higher skill level, higher wages, some unique terms and conditions of employment such as having unscheduled lunch and breaks, and "on-call" requirements; and immunity from lay-off procedures. In addition, interchange among production and maintenance employees is insignificant and maintenance workers are separately supervised. (The Petitioner is the Unification Organizing Committee, United Auto Workers, Machinists International, and Steelworkers of America.) [HTML] [PDF]

Venture Industries, Inc. (7-CA-39190; 330 NLRB No. 159) Grand Blanc, MI March 31, 2000. The Board adopted the administrative law judge's finding that Manager Ken Winget's comment that he had been in a union shop and that paying union dues had been a waste of money did not violate Section 8(a)(1) of the Act. The Board agreed with the judge that molding supervisors Kellogg and McLaughlin-Smith are statutory supervisors, and that McLaughlin-Smith's interrogation of employee Williams, Ken Winget's threats of loss of promotional opportunities if the Union wins, and CEO Larry Winget's solicitation of grievances violated the Act. [HTML] [PDF]

Members Fox and Liebman agreed with the judge that Ken Winget's statement to employees that UAW means "You Ain't Working," was an unlawful threat of loss of jobs. Contrary to the judge, they found that the statement was also an unlawful threat of the futility of selecting the Union "given the nature of the statement and the context in which it was spoken." Member Brame, dissenting in part, stated that Winget's comment was "a play on the initials and would not by its plain meaning reasonably convey a threat" of adverse action against union supporters.

Contrary to the majority, Member Brame agreed with the judge that Ken Winget's comment that "as far as he was concerned the plant would never be a union shop" was not a threat. According to Member Brame, the majority's finding that such a "vague" comment implied harm to union supporters' interests "is based on sheer speculation," because the comment was an expression of Winget's personal experience with a unionized workplace and was made in the context of predicting which side would win the election. Members Liebman and Brame adopted the judge's dismissal of allegations that Larry Winget's and Supervisor Kellogg's comments that the election would be tied up in court for years were threats of the futility of selecting the Union.

Members Fox and Liebman found that Respondent unlawfully removed union literature from the bulletin board and tables in the employees' break room, while Member Brame found the violation pertained only to the removal of materials from the tables, arguing that the Respondent's property interest in the bulletin board permits it to limit its use.

Charge filed by United Auto Workers International; complaint alleged violations of Section 8(a)(1). Hearing at Grand Blanc, MI, July 10-11, 1997. Decision issued by Adm. Law Judge George Carson II, Sept. 19, 1997.

New Surfside Nursing Home (29-CA-21696; 330 NLRB No. 161) Far Rockaway, NY March 31, 2000. The Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by denying Service Employees Local 144 information it requested in its letter of February 27, 1998, except for employee social security numbers; and by denying the Union's requests for access to the Respondent's facility to observe how work is performed in preparation for collective bargaining. The administrative law judge found that the Respondent was entitled to all the requested information, including employee social security numbers. The Board disagreed, noting that the complaint did not allege, and the General Counsel did not contend at trial, that the Respondent unlawfully withheld social security numbers. Therefore, it found no violation in this respect and did not reach the issue the judge discussed of whether the Union demonstrated the relevance of the social security numbers. The Board distinguished Troy Hill Nursing Home, 326 NLRB No. 159 (1998), relied on by the Respondent in excepting to the finding that the Union is entitled to Medicaid cost reports. And, it agreed with the judge that under Holyoke Water Power Co., 273 NLRB 1369 (1985), enfd. 778 F.2d 49 (1st Cir. 1985), the Union has a statutory right of reasonable access to the Respondent's facility to observe how work is performed in preparation for collective bargaining. See Washington Beef, Inc., 328 NLRB No. 79 (1999). [HTML] [PDF]

Charge filed by Service Employees Local 144; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn, Dec. 7-8, 1998. Adm. Law Judge Howard Edelman issued his decision June 10, 1999.

City & Suburban Delivery Systems (29-RC-9016, 29-RM-875; 330 NLRB No. 162) Farmingdale, NY March 31, 2000. The Board found, contrary to the Regional Director, that the facts of this case do not warrant including the five return room counters at the Employer's Farmingdale, New York facility currently represented by Newspaper and Mail Deliverers' Union of New York and Vicinity (NMDU), in a unit from which they have been historically excluded and sought by the Employer in its RM petition and by the Intervenor (Auto Workers Local 2110). The Employer filed the RM petition on March 17, 1998, seeking to include all return room employees, counters, scanners, adders, auditors, receivers, and data entry employees in the unit. On March 18, 1998, NMDU filed an RC petition seeking to represent the employees in the RM unit, except for the five return room counters already represented by NMDU and currently covered by the Long Island City collective-bargaining agreement between NMDU and the Employer. [HTML] [PDF]

The Board decided that the only appropriate unit consists of unrepresented return room employees, counters, scanners, adders, auditors, receivers, and data entry employees employed by the Employer at its Farmingdale, New York facility, but excluding the five return room counters represented by NMDU. It reversed the Regional Director's Decision and Order Dismissing Petition in Case 29-RC-9016 and Decision and Direction of Election in Case 29-RM-875, reinstated the petition in Case 29-RC-9016, and remanded the proceeding to the Regional Director to count the impounded ballots but not the challenged ballots of the five return room counters represented by NMDU.

NMDU represented drivers and warehouse floormen at Metropolitan News in Long Island City for about 20 years prior to the Employer's purchase of Metropolitan News in 1992. These employees transferred to the Employer after the purchase and were covered by its collective-bargaining agreement with NMDU. After the purchase, NMDU filed a grievance claiming that the Employer withdrew return room work belonging to its bargaining unit members and assigned the work to office employees. In 1994, an arbitrator awarded the return room work to the drivers represented by NMDU, noting that the Employer may also assign similar work to office employees. The Employer and NMDU negotiated an agreement to implement the arbitration award, which provided that the Employer would establish five new day-side jobs at Long Island City devoted to counting returns serviced by routemen distributing newspapers from there.

The Employer purchased Imperial Delivery Service in 1996, which had a facility in Farmingdale. It consolidated some of its Long Island City operations with preexisting operations at the Farmingdale facility. In 1996, the five return room counters represented by NMDU were transferred to the Farmingdale facility. They remained in the unit with the drivers and floormen at the Long Island City and continued to be covered under NMDU's collective-bargaining agreement with the Employer. Local 2110 had historically represented office employees at the Employer's Long Island City facility, and continued to do so after the consolidation.

Halle Enterprises, Inc. (5-CA-27676, et al.; 330 NLRB No. 163) Silver Spring, MD March 31, 2000. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by terminating 11 maintenance technicians on November 4, 1997 when they concertedly complained about their wages, hours, and working conditions by demanding wage increases, uniforms, safety equipment, and tools. It disagreed however with the judge's finding that the offer of reinstatement made by Respondent's president, Warren Halle, on November 7, 1997 to four of the unlawfully discharged employees cut off any entitlement they had to reinstatement and backpay as of that date. Instead, the Board found that Halle's offer was superceded when Respondent's property manager, Wayne Ellis, subsequently placed conditions on the offer when the employees attempted to return to work on November 10 and Ellis informed them that they could not return to work and retain their benefits and seniority unless they signed a waiver form. [HTML] [PDF]

Charges filed by Individuals; complaint alleged violation of Section 8(a)(1). Hearing at Washington, D.C., May 10-11, 1999. Adm. Law Judge Bruce D. Rosenstein issued his decision July 23, 1999.

Rainbow Reproductions, Inc., d/b/a Central Apex Reproductions (14-CA-25217; 330 NLRB No. 164) St. Louis, MO March 31, 2000. Chairman Truesdale and Member Liebman denied in part and granted in part the Respondent's motion for reconsideration of a 1999 decision and order (327 NLRB No. 140) that granted the General Counsel's Motion for Summary Judgment and held that the document filed by the Respondent on November 12, 1998 did not constitute a proper answer to the complaint. Member Hurtgen, dissenting, would grant the Respondent's motion and deny the General Counsel's Motion for Summary Judgment. [HTML] [PDF]

The Board relied on these rationales in the prior decision: (1) the November 12, 1998 document was not styled as an answer to the complaint and, due to the absence of a response to the Notice to Show Cause, there was no contention by the Respondent that the November 12 document constituted an answer to the complaint; and (2) the November 12 document "fails to address the substance of the complaint allegations and therefore is legally insufficient under the Board's rules." In its motion for reconsideration, the Respondent demonstrated that it filed a response to the Notice to Show Cause with the Board's Division of Judges in Washington, D.C. on or before the due date. The Respondent contended that the Board should withdraw its decision and reconsider the General Counsel's Motion for Summary Judgment because it apparently did not consider the response. In the response, the Respondent contended that its November 12 document was intended to be its answer to the complaint.

Chairman Truesdale and Member Liebman noted that the Notice to Show Cause specifically required that any response be "filed with the Board in Washington, D.C. . . ." Although the Respondent's response was improperly filed, they granted the motion for reconsideration insofar as it seeks consideration of the response, decided to no longer rely on the first rationale described above, and modified the Board's initial decision at footnote 2 to reflect that the Respondent filed a response to the Notice to Show Cause contending that the November 12 document constituted an answer to the complaint. Chairman Truesdale and Member Liebman denied the motion insofar as it requests that the decision and order be withdrawn, noting that the Respondent is still relying on the same November 12 document that the Board specifically found not to be a proper answer to the complaint. They found "nothing in the response that calls into question the validity of the Board's second rationale for granting the General Counsel's Motion for Summary Judgment."

Freeman Decorating Co. (28-RC-5688; 330 NLRB No. 160) Las Vegas, NV March 31, 2000. Considering a determinative challenge and an objection to an election where the vote shows 2 for and 1 against petitioning Teamsters Local 631, the majority of Chairman Truesdale and Member Fox concluded, contrary to Member Hurtgen and the hearing officer's recommendation, that Maestas, the most senior employee in the carpeting department, is not a statutory supervisor. Thus, the majority held that Maestas' name was properly included on the eligibility list and ordered that his ballot be opened and counted. The majority determined that the evidence did not establish that Maestas' performed such statutory supervisory activities as making schedule changes, granting time off, effectively recommending or imposing discipline, or using independent judgment in deciding to return 2 temporary employees to the employment agency. Member Hurtgen would sustain the challenge to Maestas' ballot and certify the Union. [HTML] [PDF]

Merchants Transfer Co. (15-RC-8199; 330 NLRB No. 165) Mobile, AL March 31, 2000. The majority of Members Liebman and Hurtgen found that the record fully supports the hearing officer's finding that, at least, the Employer was grossly negligent in providing an Excelsior list it knew had employee addresses so inaccurate that it no longer used them for its own purposes. Thus, the majority set aside an election showing 27 for and 29 against the Petitioner, PACE International, with no challenged ballots, and ordered a new election. The Employer provided incorrect addresses for 22.41 percent of the employees and the Petitioner, even with further efforts, was unable to reach 10.34 percent of the employees. "In short, the dissent's claim that this is a case in which the Employer provided 'its latest best list' lacks support in the record. Because the facts clearly show that the Employer itself recognized that the list was essentially worthless for its own purposes, a far more accurate characterization of this case is that the Employer provided its 'laid-to-rest' list," the majority stated. In reaching this decision, the majority discusses and distinguishes many Board decisions cited by dissenting Member Brame, including Women in Crisis Counseling, 312 NLRB 589 (1991), Singer Co., 175 NLRB 211 (1969), Bear Truss, Inc., 325 NLRB 1162 (1998), Lobster House, 186 NLRB 148 (1970), and Dr. David M. Brotman Memorial Hospital, 217 NLRB 558 (1975). [HTML] [PDF]

John Forbes, a sole proprietorship, d/b/a Rainbow Painting and Decorating (28-CA-14772, et al.; 330 NLRB No. 142) Las Vegas, NV March 21, 2000. The Board found that the Respondent violated Section 8(a)(1) of the Act through leadman Stephen Graybeal's coercive threat of loss of work made during an encounter with employee Steven Jensen on January 12, 1998 and leadman Rick Bennett's threats of discharge, company closure, and the creation of an alter ego made during a lunchtime conversation with two employees on December 4, 1997. [HTML] [PDF]

No exceptions were filed to the administrative law judge's finding that Graybeal acted as the Respondent's agent during his encounter with Jensen and that Graybeal unlawfully interrogated Jensen and engaged in surveillance of employees' union activity. The General Counsel excepted to the judge's finding that Graybeal's concluding comment to Jensen was "merely a [lawful] statement of opinion by Graybeal that he believed the Respondent's customers would go elsewhere if the Respondent became unionized." The judge failed to rule on complaint allegations of unlawful threats made by Bennett.

In light of the judge's uncontested finding that leadmen who committed unfair labor practices were the Respondent's agents, the Board found no need to decide whether they were also supervisors under the Act. The Board found it unnecessary to pass on the General Counsel's exception to the judge's failure to rule on allegations of unlawful interrogation by Supervisor Montoya because any additional finding of unlawful interrogation would be cumulative and would not affect the remedy.

Charge filed by Building Trades Organizing Project (BTOP); complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Las Vegas, July 21-24 and Sept. 16-18, 22-24, 1998. Adm. Law Judge Gerald A. Wacknov issued his decision March 25, 1999.

Labor Ready, Inc. (9-CA-34950; 330 NLRB No. 151) South Charleston, WV March 23, 2000. The Board denied the Respondent's motion for reconsideration of a prior decision and order, 327 NLRB No. 179 (1999), finding that the Respondent unlawfully refused to continue to refer Donald Huff for employment and attempted to prevent him from circulating a petition. [HTML] [PDF]

The Respondent contended that newly discovered union logs establish that Huff knew that the Tri-State Building and Construction Trades Council would be unable to organize the Respondent but continued to purport to do so to induce the Respondent to commit unfair labor practices, to disrupt its business, and to force the Respondent to cease doing construction work. It claimed that Huff was not a bona fide applicant entitled to the Act's protection and that the judge's credibility resolutions should be disregarded because Huff lied at the hearing about his knowledge of picketing planned at one of the jobsites to which the Respondent referred applicants. The Respondent requested permission to introduce evidence concerning "work areas" at its facilities to avoid any conflicting decisions regarding the validity of its no-solicitation policy. Alternatively, it requested that this proceeding be stayed pending resolution of Cases 9-CA-36223 and 36395 involving the same parties and where more evidence was adduced on the "work area" issue.

The Board found that the evidence Respondent sought to introduce is not "newly discovered" or "previously unavailable" within the meaning of Section 102.48(d)(1), and that it did not file its motion "promptly" in accord with Section 102.48(d)(2) of the Board's Rules and Regulations, noting that the Respondent subpoenaed the logs at the hearing in Cases 9-CA-36223 and 36395 on January 14, 1999, but did not file its motion until April 26, 1999. It also found the Respondent's contention regarding the possibility of conflicting decisions about its "work areas" is speculative and that such a possibility can be appropriately dealt with if and when it materializes. Citing P&T Metals, Inc., 316 NLRB 1189 (1995), the Board denied the motion insofar as it seeks to reopen the record to attack the judge's credibility determinations.

Pepsi-Cola Bottling Co. of Fayetteville (11-CA-14889, et al.; 330 NLRB No. 153) Fayetteville, NC March 24, 2000. The Board affirmed the administrative law judge's backpay calculations for employees Roger Deskin, John Faass, and Christopher Hyatt, including his finding that the Respondent's backpay liability for Hyatt should be offset by only 2 weeks in November 1995, when Hyatt left his interim employment with Coca-Cola after failing a drug test, and before he obtained interim employment with another employer (at lower wages than what he earned at Coca-Cola). It reversed the judge and adopted the backpay amounts for discriminatee Robert Munn as set forth in the amended compliance specification, and ordered the Respondent to pay Munn $18,444.67 in backpay. The Board found that the amended compliance specification with regard to Munn was based on a representative employee formula, a method which has long been used by the Board, and that the judge's assignment of a set wage increase for Munn was neither justified nor necessary. [HTML] [PDF]

Member Brame, dissenting in part, would mitigate the Respondent's backpay liability starting with the date Hyatt left his employment at interim employer Coca-Cola and continuing for the remainder of his backpay period, by offsetting the amount Hyatt would have earned at Coca-Cola had he stayed there.

Members Fox and Liebman found that Hyatt's resignation from Coca-Cola was compelled, not voluntary, noting that, after failing the drug test, he was given an ultimatum to resign or be fired. They wrote: "Thus, we find that Hyatt was effectively discharged from his interim job with Coca-Cola because he failed a drug test and that he did not voluntarily quit, as asserted by our dissenting colleague. Further, . . . we find, in agreement with the judge and contrary to our dissenting colleague, that the Respondent has not established that Hyatt's discharge was based on deliberate or gross misconduct."

Hearing at Fayetteville, Sept. 2-4 and Oct. 16, 1997. Adm. Law Judge Robert C. Batson issued his supplemental decision Feb. 9, 1998.

General Trailer, Inc. (32-CA-16935, 32-RC-4486; 330 NLRB No. 150) Stockton, CA March 28, 2000. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (3) of the Act by terminating Marshall and laying off Jesse for union activity. With regard to the firing of union supporter, Piper, the majority of Chairman Truesdale and Member Brame found that he was disparately treated because he was the only employee fired for poor work on a particular project. Member Hurtgen dissented on this issue alone on the ground that the judge did not make a clear finding as to whether the Respondent relied on not one, but two incidents of work deficiency by Piper. If the Respondent relied on both incidents of poor work by Piper, there would be no disparity of treatment, Member Hurtgen reasoned, and his discharge would be nondiscriminatory. [HTML] [PDF]

The Board affirmed the judge's finding of Section 8(a)(1) violations by Respondent and/or its agent consisting of stationing armed guards in front of its locked gates on election day, thus preventing the above unlawfully discharged employees from voting under challenge; telling employees that adverse employment decisions had been made and threatening to close the plant because of union support, blaming the union for refusing to give an employee a pay raise, and monitoring and telling an employee that he was being denied overtime opportunities in retaliation for union support. The judge's recommended Gissel bargaining order was adopted by the Board, and the election, which the Union lost by 1 vote, was set aside.

Charges filed by Machinists District Lodge 190, Local Lodge 2182; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Stockton, CA, Feb. 8-10, 1999. Decision issued by Adm. Law Judge Michael D. Stevenson, June 17, 1999.

Senior Citizens Coordinating Council of Riverbay Community (2-CA-28713; 330 NLRB No. 154) Bronx, NY March 28, 2000. A Board majority of Members Fox and Liebman reversed the administrative law judge's dismissal of a Section 8(a)(1) complaint filed by Mathew, and found, instead, that the discharges of Mathew and others were unlawful under the Act because the employees engaged in activity that was both protected and concerted. The employees were fired because they wrote, signed, and sent a letter that threatened a work stoppage with the object of influencing the Respondent in its selection of management personnel. The Respondent also was found to have violated Section 8(a)(1) by instructing the employees to sign a retraction or be terminated. The majority concluded that the employees' activity was concerted, but, unlike the judge and Member Brame in dissent, that it was also protected because the employees' demand for qualified supervision had a direct impact of the terms and conditions of their employment. Member Brame concluded that the employees' activities, while concerted, were not protected because the issues addressed in their letter did not concern wages, hours, or other terms and conditions of employment. [HTML] [PDF]

Charge filed by Barbara Mathew, an Individual; complaint alleged violations of Section 8(a)(1). Hearing at New York, NY, May 8-9 and June 26, 1996. Decision issued by Adm. Law Judge Raymond P. Green, Sept. 23, 1996.

L.S.F. Trucking, Inc. (13-CA-33256, et al., 13-RC-19111; 330 NLRB No. 145) Hammond, IN March 27, 2000. The Board agreed with the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by creating the impression of surveilling employees, coercively interrogating employees, and threatening plant closure, job loss, discharge and other unspecified reprisals because of their union activities; and violated Section 8(a)(5) and (1) by unilaterally instituting new work rules and discontinuing its practice of allowing drivers to use their ComData cards for cash advances. [HTML] [PDF]

The majority of Members Fox and Liebman agreed with the judge that, under Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976), the Respondent constructively discharged Michaels in violation of Section 8(a)(1) and (3) by assigning him upon his return from medical leave to a "steady diet" of arduous long-haul runs. In so doing, the majority reasoned, the Respondent knew or suspected that this would cause Michaels to quit, which ultimately he did. Member Hurtgen dissented on this finding and stated that Michaels quit prematurely before he may have been subjected to a "steady diet" of long runs, since at the time he quit, he had performed long runs for only 1 day in March and "a few days in May."

The majority further agreed with the judge that the Respondent discharged Kawa, at the time the last remaining union adherent in its employ, because of his union support and not for the pretextual reason that it would have discharged Kawa even in the absence of his union conduct because of earlier traffic citations for speeding and having a detectable amount of alcohol in his system (.009%). Member Hurtgen found that the Respondent met its rebuttal burden of showing it would have discharged Kawa regardless of his union activity.

The judge's Gissel bargaining order was upheld by the majority, although Member Hurtgen disagreed, citing his dissent in General Fabrications Corp., 328 NLRB No. 166 (1999), in which he stated that a Gissel order should not be imposed when a representation election has yet to be resolved and the union may have won the election.

Charges filed by Teamsters Local 142; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Chicago, IL, Oct. 16-19, and Nov. 13-14, 1995. Decision issued by Adm. Law Judge George Aleman, Nov. 4, 1996.

Ferri Supermarkets, Inc. d/b/a Murrysville Shop'N Save (6-CA-29333; 330 NLRB No. 156) Murrysville, PA March 30, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union, and by refusing to provide relevant bargaining information requested by the Union. However, the Board did not rely on the judge's rationale that the Respondent is a successor employer under Golden State Bottling Co., v. NLRB, 414 U.S. 168 (1973), and thereby bound by a recognition agreement in an unfair labor practice settlement agreement entered into between the predecessor and the Union. Conceding that the Golden State theory was never raised, the General Counsel instead argued that the Respondent is a successor under NLRB v. Burns Security Services, 406 U.S. 272 (1972), and that the Respondent failed either to prove that the Union had in fact lost its majority status at the time of the refusal to recognize or that the refusal to recognize was grounded on a good-faith doubt based on objective considerations that the Union continued to command majority support. The Board rejected the Respondent's defense that, although it was a Burns successor, it had a good-faith doubt of the Union's majority status based on information from its predecessor that a majority of employees had repudiated the Union and based on statements by nine employees expressing dissatisfaction with the Union. [HTML] [PDF]

Charge filed by Food and Commercial Workers Local 23; complaint alleged violation of Section 8(a)(5). Hearing at Pittsburgh, PA, Feb. 19, 1998. Decision issued by Adm. Law Judge James L. Rose, June 19, 1998.

PCC Structurals, Inc., formerly named Precision Castparts Corp. (19-CA-24902, et al.; 330 NLRB No. 131) Portland and Clackamas, OR March 17, 2000. The Board agreed with the administrative law judge for the reasons stated by him and additional reasons set forth in its decision, that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging Patrick Maloney, notwithstanding the Respondent's assertion that it took action against Maloney to protect disabled employee Cheryl Green from alleged harassment and to comply with the Americans With Disabilities Act (ADA). Green suffers from progressive rheumatoid arthritis and was sometimes confined to a wheelchair. The Board also found that the Respondent violated Section 8(a)(1) by issuing three disciplinary warnings to Maloney and by its threat of adverse action when it warned employee Grant Doty not to associate with Maloney. [HTML] [PDF]

The Board said in finding that there is insufficient evidence to support the Respondent's contention that it believed Maloney "harassed" Green, at all, let alone believed he harassed her within the terms of the ADA:

"Like the judge, we find it implausible that [Kim] Schwanz or any other management official decided that a highly skilled, 13-year employee (whose work performance and technical abilities were never at issue) deserved to be discharged on the basis of Green's complaints and the evidence supporting them. We consequently find that the Respondent, in the face of the showing of unlawful discrimination made by the General Counsel has not borne its Wright Line burden of establishing that Maloney would have been suspended and discharged even if he had not engaged in conduct protected under the Act."

Member Hurtgen concluded that the Respondent would prevail if it had shown that it would have discharged Maloney based solely on a reasonable fear of a successful ADA lawsuit; that is, the Respondent need not show an actual ADA violation. He agreed that the Respondent has not met the requisite burden.

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Portland, May 26-29 and June 1-5, 1998. Adm. Law Judge Gerald A. Wacknov issued his decision Nov. 13, 1998.

Aneco, Inc. (12-CA-15738; 330 NLRB No. 152) Orlando, FL March 20, 2000. The Board granted the General Counsel's motion for partial summary judgment as to the allegations contained in the compliance specification's paragraphs 1, 2, except as to the closing date of the backpay period, paragraphs 4, 5, 6, and 7, and those portions of paragraphs 10 and 11 related to the Respondent's general backpay obligation except insofar as the allegations relate to interim earnings. It also granted the General Counsel's motion as to the Respondent's amended answer to the compliance specification's paragraphs l, 2, except as to the closing date of the backpay period, paragraphs 4, 5, 6, 7, the "make-whole" portions of paragraphs 10 and 11, and the affirmative defense regarding Winton Cox's status as a "tester" insofar as it challenges his status as a bona fide applicant except as those allegations relate to interim earnings. [HTML] [PDF]

The Board remanded the proceeding to the Regional Director to schedule a hearing before an administrative law judge concerning the remaining allegations of the compliance specification. The decision and order in the underlying unfair labor practice proceeding is reported at 325 NLRB 400 (1998).

Alamo Rent-A-Car (20-RC-17501; 330 NLRB No. 147) San Francisco, CA March 17, 2000. The Board reversed the Acting Regional Director's decision and direction of an election in the petitioned-for unit of only two of the Employer's four San Francisco facilities, and made up of approximately 80 service agents, predelivery inspection employees/fleet control, shuttlers, ready line agents, and "PSRs," excluding parts and inventory clerk Cherry Ho. [HTML] [PDF]

The Employer, a national company engaged in the retail rental of automobiles, has four facilities in the San Francisco area: a maintenance facility located at Burlingame and three car rental facilities located at the San Francisco airport (SFO) and on Folsom and Bush Streets in downtown San Francisco.

The Board agreed with the Acting Regional Director's finding that a unit limited to the petitioned-for job classifications is appropriate. However, it found, contrary to the Acting Regional Director, that Ho should be included in the unit because she shares a community of interest with the unit employees and that a unit of employees that includes the petitioned-for classifications at the Burlingame and SFO facilities must also include employees in the same job classifications who work at the Folsom and Bush Street facilities. The Board wrote:

"The proposed unit does not conform to any administrative function or grouping of the Employer's operations. There is neither substantial employee interchange nor significant functional integration between the two facilities that is distinguishable from that which exists among all four of the San Francisco area facilities. Nor do the employees at the two facilities share common supervision apart from the employees at the other San Francisco facilities. Absent these significant factors, details such as the fact that employees share a common parking lot and were formerly housed at the same location fail to establish the appropriateness of the petitioned-for unit."

The Board expressed no opinion as to whether a single facility unit would be appropriate because the issue has not been litigated. Since the Petitioner (Teamsters Local 665) has not indicated whether it is willing to proceed to an election in a unit different from the one petitioned for, the Board directed the Union to advise the Regional Director whether it wishes to proceed in the unit found appropriate here.

Flannery Motors, Inc. (7-CA-37280; 330 NLRB No. 149) Waterford, MI March 22, 2000. The Board ordered the Respondent to make whole the discriminatees by paying $69,114,65 to Bruce Carland and $96,533.50 to Scott McClellan. The Board recalculated the gross and net backpay due McClellan for the entire backpay period after granting the General Counsel's limited exception. The General Counsel submitted that the administrative law judge's supplemental decision incorrectly stated the gross and net backpay due McClellan for the fourth quarter of 1994 as $5,251.36 and that the parties jointly calculated and agreed that the correct amount is $3,080.62. There were no exceptions to the judge's backpay Order as it applies to Carland. The Board previously found that the Respondent unlawfully discharged Carland and McClellan in violation of Section 8(a)(3) and (1) of the Act. 321 NLRB 931 (1996), enf. 129 F.3d 1263 (6th Cir. 1997). [HTML] [PDF]

Hearing at Detroit, Feb. 22-23 and April 12, 1999. Adm. Law Judge Richard H. Beddow Jr. issued his supplemental decision July 30, 1999.

Supershuttle of Orange County (21-RC-20060; 330 NLRB No. 138) Anaheim, CA March 23, 2000. Applying Douglas-Randall, Inc., 320 NLRB 431 (1995), and Liberty Fabrics, Inc., 327 NLRB No. 13 (1998), Chairman Truesdale and Member Liebman dismissed the representation petition filed by rival union (Teamsters Local 952), finding that a negotiated initial collective-bargaining agreement between the Employer and Intervenor (Employees Action Representatives) served as a bar to the petition. The majority noted that the unfair labor practice charges filed by the Intervenor were based on conduct preceding the petition and that the bargaining agreement was intended by the parties to, and effectively did, resolve the outstanding Section 8(a)(5) and (1) charges. [HTML] [PDF]

Dissenting Member Hurtgen wrote: "My colleagues having made bad law by a prior reversal of precedent, now extend that bad law even further. The result is a further erosion of the fundamental right of employees to choose, reject, or change a bargaining representative."

In Douglas-Randall, the Board overruled precedent and returned to a policy of dismissing a decertification (or other) petition filed subsequent to alleged unfair labor practice conduct where the charges are resolved by a Board settlement agreement in which the employer agrees to recognize and bargain with the Union. The Board described only three situations where resolution of pending charges similar to those here would not result in dismissal of the petition: where the blocking charges have been unconditionally withdrawn without Board settlement, dismissed as lacking in merit, or litigated and found to be without merit.

Liberty Fabrics extended Douglas-Randall, which involved a Board settlement agreement approved by the Regional Director, to cases involving a private settlement agreement between the parties. There, the parties continued negotiations in the face of the outstanding unfair labor practice charges, reached a new collective-bargaining agreement, and included in that agreement a provision settling the unfair labor practices.

Chairman Truesdale and Member Liebman wrote in noting that none of the three situations described in Douglas-Randall has occurred here: "Instead, in this case, the Acting Regional Director has found, and the parties have confirmed, that they resolved all unfair labor practice allegations when they negotiated and agreed to their new collective-bargaining agreement. Thus, the reasoning and the holding of Douglas-Randall and Liberty Fabrics squarely apply, and the petition must be dismissed."

Member Hurtgen noted that the parties reached a contract, not a settlement of the unfair labor practice case and that the contract came after the RC petition. He wrote: "By treating a contract as a settlement, my colleagues have erected a contract bar to dismiss a petition filed before the contract. Further, the result reached by my colleagues can easily lead to collusion between an employer and an incumbent union to freeze out a rival union. That is, the incumbent union would file a charge, and the employer and incumbent union would then reach a contract. As if by magic, the rival petition would go away by dismissal."

The Painting Co. (9-CA-33482, et al.; 330 NLRB No. 136) Plain City, OH March 23, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully terminating painters Charles Crisp, Warren Hull, Robert Meade, and Mark Pratt from its Franklin Furnace job because of their protected union activity. The Board found that the General Counsel established a compelling prima facie case that the employees were terminated because of their efforts to organize the Franklin Furnace job. It further found that the Respondent failed to rebut that case. Supervisor Courts testified that he terminated the employees on January 2, 1996 solely because other Respondent jobsites were shutting down, resulting in the availability for transfer to Franklin Furnace of many painters with more experience. At the hearing, the Respondent contended that the four employees were terminated because they were substandard employees not suited to Franklin Furnace work. [HTML] [PDF]

The Board found merit in the General Counsel's exception and held that the Respondent violated Section 8(a)(1) by threatening to discharge employees for wearing union T-shirts and amended the judge's proposed Order to include the additional 8(a)(1) violation.

Charges filed by Tri-State Building & Construction Trades Council and Painters Local 1275; complaint alleged violation of Section 8(a)(1) and (3). Adm. Law Judge Stephen J. Gross issued his decision July 14, 1998.

United Parcel Service (17-CA-9015, 19729; 330 NLRB No. 146) Vinita, OK March 23, 2000. The Board upheld the administrative law judge's decision that the Respondent violated Section 8(a)(5) and (1) of the Act on two occasions when it refused to allow employees Dave Walker and Larry Sexton to assist Union Secretary-Treasurer Jerry Van Allen at "local hearings" in grievances concerning the discharge of employee Troy McCarty. The judge found that the Respondent failed to show that Teamsters Local 516 clearly and unmistakably waived its right to select its representatives for grievance processing at the local hearing level. He noted that Articles 4 and 50 of the parties' contract/local supplement, speaks only to the initial level of grievance presentation and do not describe or place limits on the Union's right to seek additional assistance or input at higher levels of presentation. [HTML] [PDF]

The Board noted that the Act bestows on employees, unions, and employers the right to select representatives of their choice for collective bargaining and grievance adjustment and imposes a concomitant obligation to deal with each other's chosen representatives absent extraordinary circumstances.

Member Hurtgen agreed with the result, but only because the contract is silent as to which individuals can be designated to represent employees at the "local hearing" stage of the grievance procedure. He found that the contract therefore does not "cover" the dispute in question and that the "contract coverage" analysis cannot be used.

Charge filed by Teamsters Local 516; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Tulsa on March 25, 1998. Adm. Law Judge James M. Kennedy issued his decision April 14, 1999.

Rankin & Rankin, Inc. (20-CA-27717; 330 NLRB No. 148) Roseville, CA March 24, 2000. Members Fox and Liebman affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by threatening employees with loss of their jobs if they selected Teamsters Local 150 as their bargaining representative. Member Brame dissented. [HTML] [PDF]

On March 13, 1997, the Respondent held a group meeting for employees and supervisors to talk about the Union. Leonard Lewis, the Respondent's chief executive officer, told employees that if the Union demanded higher wages and the company disagreed, the Union could call a strike and the employees could be replaced by new employees who would be hired for less money. The remarks were made only 2 days after the Respondent's president, Cheryl Rankin, had approached employees in the lunchroom and coercively threatened them, including Chris Folkman, the leading union organizer. Folkman was unlawfully discharged prior to the March 13 meeting.

Members Fox and Liebman said in agreeing with the judge's finding that Lewis' remarks, given their context, were unlawful: "Since Rankin's earlier statement had clearly shown that the Respondent was predisposed to retaliate against union activity, and since Lewis made his remarks within hours of unlawfully discharging union supporter Folkman, we find ample basis for concluding that Lewis' statement about hiring workers for less money to replace employees who joined a union strike would, in the words of the Board in Eagle Comtronics, 263 NLRB 515, 515-516 (1982), 'be fairly understood as a threat of reprisal against employees.'"

Member Brame would dismiss the allegation involving Lewis' March 13 comments. He wrote: "The threat of plant closure on March 11 was communicated by a different speaker during a different conversation with a different audience on a different day. Further, Rankin's statement was predicated on the notion of unilateral employer action to shut down, while Lewis' remark presupposed continued operation and addressed the Respondent's lawful options in the event of union-initiated action." Member Brame also did not adopt the judge's implicit finding that Lewis' remarks about other union members with greater seniority who would "come in and work for us and we'd have to wait for other jobs," was outside the protection 8(d) of the Act.

Charge filed Teamsters Local 150; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Sacramento, July 15-16, 1997. Adm. Law Judge Burton Litvack issued his decision April 17, 1998.

The Edward S. Quirk Co. d/b/a Quirk Tire (1-CA-33249, 34383; 330 NLRB No. 137) Boston, MA March 20, 2000. A Board majority of Chairman Truesdale and Member Hurtgen affirmed the administrative law judge's conclusion that the Respondent lawfully implemented its health insurance proposal after the parties had reached a good-faith impasse in their contract negotiations. In dissent, Member Fox would have found a violation because "the Respondent, by unlawful conduct, laid the ground work for its unilateral implementation of the new health insurance plan even before any claim of bargaining deadlock had been made." [HTML] [PDF]

The majority stated, "[u]nlike our dissenting colleague, we do not presume that unremedied unfair labor practices preceding the employee vote must have precluded the possibility of a good-faith impasse in negotiations."

Charge filed by Teamsters Local No. 25; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Boston, Dec. 17-19, 1996. Adm. Law Judge C. Richard Miserendino issued his decision Jan. 29, 1998.

Westwood Health Care Center (18-CA-11703; 330 NLRB No. 141) Minneapolis, MN March 20, 2000. A Board majority of Chairman Truesdale and Member Fox affirmed the administrative law judge's finding that the Respondent did not unlawfully discharge licensed practical nurse (LPN) Pamela Davis and registered nurse (RN) Nancy Duerr for their union activities because they were supervisors at the time of their discharges. The General Counsel and the Charging Party had contended that even if Davis and Duerr were statutory supervisors at the time of their discharges in 1991, their discharges were nonetheless unlawful because the Respondent promoted them after it learned that they were engaging in union activity. [HTML] [PDF]

The Board also adopted the judge's findings of certain unlawful statements and solicitations of grievances but reversed the judge's dismissal of allegations that other violations of Section 8(a)(1) of the Act (principally interrogations about union sentiments) were committed against LPNs Joanne Plourde and Paula Brillo.

Dissenting Member Brame would find the Respondent's interrogations relating to Plourde and Brill not coercive and therefore not unlawful. He stated:

"In finding to the contrary, my colleagues, perhaps impelled by the Board's historical inclination to find all inquiries suspect, have created out of whole cloth a background of unlawful conduct and hostility, and then have relied on this context to find that the questionings at issue here were unlawful. By finding violations where no coercion exists, the majority has failed to protect the Respondent's right to freedom of speech."

"[w]e cannot agree with our dissenting colleague that employees Plourde and Brill were merely the targets of questioning that was innocuous because it was done in a 'normal' tone and was not coupled with threats of reprisal. We also do not agree that the Respondent did not independently violate Section 8(a)(1) in the other ways discussed above. In so finding, we have not disregarded the Respondent's right to free speech, but rather have concluded that the incidents we have found unlawful went beyond persuasion or expression of opinion and amounted to coercive pressure on these two employees to reveal their thinking about the ongoing union activity and abandon any support they might have been inclined to give the Union."

Charges filed by Professional & Technical Health Care Union, Local 113; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Minneapolis, Oct. 1-4, 1991. Adm. Law Judge George Christensen issued his decision Jan. 20, 1993.

Pepsi-Cola Bottling Co. of Fayetteville, Inc. (11-CA-14889, et al.; 330 NLRB No. 134) Fayetteville, NC March 20, 2000. In a Supplemental Decision and Order, the Board affirmed the administrative law judge's findings that the Respondent engaged in a number of violations of the Act, including withholding a wage increase in January 1992; denying the increase to employee Romero; and making unilateral changes. In 1996, the Fourth Circuit remanded the Board's initial decision, 315 NLRB 882 (1994), directing the Board to develop the record regarding the nature of the withheld wage increase and to identify any employees similarly situated to Romero. [HTML] [PDF]

The Board noted that identifying individuals affected by the increase and the backpay due them is a function of the Board's compliance proceedings, which follow issuance or enforcement of its decisions. The Board agreed with the judge that the Respondent did not give notice of the unilateral changes.

The case arose with a variety of charges relating to the Respondent's actions before and after a unionization campaign in 1991. The union was certified on September 4, 1992.

Hearing at Fayetteville on April 29 and May 12, 1998. Adm. Law Judge John H. West issued his supplemental decision Sept. 9, 1998.

Douglas Foods Corp. (7-CA-38788(1)(2), et al., 7-RC-20872; 330 NLRB No. 124) Garden City, MI March 13, 2000. The Board agreed with the administrative law judge that the Respondent's lease drivers are employees rather than independent contractors and that the Respondent violated Section 8(a)(3) and (1) of the Act in several respects including threatening to close its hot truck routes and impose pay cuts if Food and Commercial Workers Local 876 were selected, creating the impression that employee union activities were under surveillance, threatening employees with more intense truck inspections, threatening employees with adverse consequences if they honored a Board subpoena, granting at least one employee a pay raise in order to discourage her support for the Union, laying off Debra Beck and issuing her a disciplinary notice, and the sham sale of the entire truck operation. [HTML] [PDF]

Members Fox and Liebman, with Member Hurtgen dissenting on the four points, agreed with the judge that the Respondent's President, Douglas George, threatened the lease route operators with a change in status if they supported the Union, interrogated Lisa Bowman, and discharged Michelle Benkert in violation of the Act; and that a Gissel bargaining order is an appropriate and necessary remedy in this case.

In the absence of exceptions, the Board adopted the judge's recommendation that the Union's objections to the election in Case 7-RC-20872 be sustained and that the election held on August 23, 1996 be set aside.

Charges filed by Food and Commercial Workers Local 876; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, May, July, Aug., and Sept. 1997. Adm. Law Judge Arthur J. Amchan issued his decision March 6, 1998.

Reading Rock. Inc. (9-CA-34502; 330 NLRB No. 132) Cincinnati, OH March 14, 2000. Affirming the administrative law judge's recommended Order, the Board dismissed a complaint alleging that the Respondent violated Section 8(a)(5) and (1) of the Act by insisting to impasse and as a condition of reaching a collective-bargaining agreement, on a nonmandatory subject--the exclusion of owner-operators and Greschel Trucking drivers from the bargaining unit (lease drivers), that a strike beginning on September 23, 1996 was an unfair labor practice strike, and that the Respondent violated Section 8(a)(3) and (1) by failing to recall all strikers immediately. Member Fox concurred. No exceptions were filed to the judge's finding that the Respondent and Greschel Trucking are joint employers. [HTML] [PDF]

Chairman Truesdale and Member Hurtgen did not pass on the issue of whether the difference between the parties was substantive or semantic, noting that regardless of the nature of the difference, the Respondent did not insist to impasse on a nonmandatory subject. Member Fox found the judge's characterization of the differences between the parties as nonsubstantive is erroneous, noting that the Respondent's proposal involved a significant reduction in the lease drivers' statutory rights and a change in the scope of the bargaining unit certified by the Board. She pointed out that the Board has found a repeated proposal to change the scope of the unit constitutes, in appropriate circumstances, evidence of a pattern of bad-faith. The complaint in this case however does not allege overall bad-faith bargaining, nor was such a theory litigated by the General Counsel, Member Fox noted, in concluding that the Respondent, although it made the nonrecognition proposal repeatedly, never insisted on it to impasse or as the price for an overall agreement.

Charge filed by Teamsters Local 100; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cincinnati, June 26-27, and Aug. 19-20, 1997. Adm. Law Judge Arthur J. Amchan issued his decision Oct. 27, 1997.

IBP, Inc. (25-CA-25304; 330 NLRB No. 133) Logansport, IN March 14, 2000. The Board affirmed the administrative law judge's decision that the Respondent did not violate Section 8(a)(1) of the Act by discharging certain employees for engaging in protected concerted activities when they complained about the amount of their wage increase and for engaging in a work stoppage over the issue or by interrogating its employees about their concerted activities. The judge found, and the Board agreed, that the employees voluntarily quit their jobs and that the individual employee meetings were investigatory in nature in order to uncover the facts surrounding the reasons why the employees refused to return to work and that no coercive interrogation occurred at them. [HTML] [PDF]

The General Counsel argued that, contrary to the judge, Elizabeth Mendoza, an IBP orientation trainer and interpreter, did not testify that, when the employees returned to the plant seeking their jobs back, they told her they had earlier "quit" at that time. The Board found that the overwhelming weight of the credited evidence, however, indicated that the employees used the word "quit" at numerous other relevant times, and it affirmed the judge's findings in this regard and the conclusions that flow from the findings.

No exceptions were filed to the judge's finding that the Respondent violated Section 8(a)(1) by selectively and disparately applying its rule that permits only IBP-issued stickers on hard hats.

Charge filed by Food and Commercial Workers Local 700; complaint alleged violation of Section 8(a)(1). Hearing at Logansport, Oct. 17-18 and Nov. 19, 1997. Adm. Law Judge Bruce D. Rosenstein issued his decision Feb. 5, 1998.

EMCOR Group, Inc., formerly known as JWP, Inc., and General Energy Development, Inc., and Inte-Fac Corp. (29-CA-18247; 330 NLRB No. 130) Islip, NY March 14, 2000. The Board affirmed the administrative law judge's decision, as modified, and held that the Respondents General Energy Development, Inc. (GED) and Inte-Fac Corp. constitute a single employer; and that the Respondents violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Operating Engineers Local 30, as the exclusive representative of the nonsupervisoy chief engineers, engineers, operator/mechanics, and apprentices employees at the Islip landfill and electrical generating facility, and failing to bargain with the Union with respect to their decision to lay off employees and the effects of the decision. [HTML] [PDF]

In adopting the judge's finding of an 8(a)(5) and (1) violation for refusal to bargain, the Board noted that, although the judge did not explicitly find a general refusal to bargain in addition to the specific finding of failure to notify and afford the Union an opportunity to bargain over the layoffs, the record and his decision support such a finding of a general refusal to bargain as alleged. It modified the notice and Order to reflect its finding of a violation. The Board noted, in adopting the judge's finding of an 8(a)(5) violation concerning the Respondents' failure to bargain over the layoffs, that the Respondents have not argued that First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), applies and have not excepted to the judge's finding that the parties' contractual management-rights clause did not waive the Union's right to bargain over economic layoffs.

Member Brame, unlike his colleagues, would grant the General Counsel's exceptions to the judge's failure to determine whether the Respondent violated Section 8(a)(3). He would sever and remand the issue because the individual employee rights protected by Sec. 8(a)(3) are different from the rights protected by Section 8(a)(5) and a finding of an 8(a)(3) violation would require that the notice contain additional language.

Charge filed by Operating Engineers Local 30; complaint alleged violation of Section 8(a)(1) and (5). Hearing held April and May 1997. Adm. Law Judge Raymond P. Green issued his decision Aug. 11, 1997.

Gulf Caribe Maritime, Inc., a subsidiary of Foss Maritime Co. and the Seafarers International (31-CA-23820, 23918, and 31-CB-10449; 330 NLRB No. 120) Redondo Beach, CA March 2, 2000. The Board affirmed the administrative law judge's finding that the Respondent Employer violated Section 8(a)(4), (3), (2), and (1) of the Act by granting recognition to the Respondent Union at a time when it did not represent an uncoerced majority of employees, discriminating and retaliating against employees because of their union activities and/or having engaged in activities before the Board, and rolling back their wages and benefits to the level they were at before Respondent Employer granted recognition to the Respondent Union. [HTML] [PDF]

The Board also affirmed the judge's finding that the Respondent Union violated Section 8(b)(1)(A) by offering on March 12, 1999, to waive its $600 initiation fee if all eight unit employees signed union authorization cards by March 15, 1999, demanding and accepting recognition as the exclusive collective-bargaining representative of the Respondent Employer's employees at a time when it did not represent an uncoerced majority of the employees, and coercing employees to designate it as their representative.

Charges filed by Longshoremen's and Warehousemen's International; complaint alleged violation of Section 8(a)(1), (2), (3), and (4) and Section 8(b)(1)(A). Hearing at Los Angeles, July 27-29, 1999. Adm. Law Judge Frederick C. Herzog issued his decision Sept. 30, 1999.

Brook Meade Health Care Acquirors, Inc. d/b/a Maple Grove Health Care Center (11-CA-17212, 17409; 330 NLRB No. 121) Lebanon, VA March 3, 2000. Agreeing with the administrative law judge, the Board found that the Respondent violated Section 8(a)(5) of the Act by unilaterally increasing the amounts employees were required to pay for health insurance, without giving the Mine Workers sufficient notice and opportunity to bargain; and violated Section 8(a)(1) by interrogating an employee and asking him to report on the union activities of other employees, by soliciting and implicitly promising to remedy employees' grievances, and by threatening to fire union supporters while expressing disappointment with an employee for wearing a union T-shirt. Unlike the judge who found that the Respondent discharged Lovana Thomas in retaliation for her support of the Union, the Board found that the Respondent demonstrated that it would have discharged Thomas regardless of her union activity, and dismissed the 8(a)(3) allegation. [HTML] [PDF]

Charge filed by Mine Workers; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing held May 28-29, 1997. Adm. Law Judge Lawrence W. Cullen issued his decision June 30, 1997.

Planned Building Services and United Workers of America (29-CA-19758-2, 29-CB-9911; 330 NLRB No. 116) Lake Grove, NY March 7, 2000. No exceptions were filed to the administrative law judge's findings that Respondent Planned Building Services, Inc. (PBS) violated Section 8(a)(1) and (2) of the Act by having its supervisors solicit union cards on behalf of Respondent United Workers of America (UWA) and recognizing UWA when UWA did not enjoy the uncoerced support of a majority of the unit employees; and violated Section 8(a)(1), (2), and (3) by entering into a collective-bargaining agreement with UWA requiring union membership as a condition of employment. [HTML] [PDF]

Members Fox and Liebman ordered PBS to post the Notice to Employees at all of its facilities, noting that the Board's order in Planned Bldg. Services (PBS), 318 NLRB 1049 (1995), issued only about 4 months before the PBS supervisors engaged in card solicitation again in this case at the Smith Haven Mall, thereby tainting the company's recognition of UWA, the assisted union; and that the repeated violation of Section 8(a)(2) does not appear to be inadvertent. Member Hurtgen found that such broad posting is unwarranted in the absence of a showing that employees at other facilities are aware of the misconduct herein.

The Board affirmed the judge's findings that PBS did not violate Section 8(a)(1) by informing candidates for employment that it would not hire, as a majority of its workforce, former employees of General Growth; and that the General Counsel failed to establish that PBS refused to hire former General Growth employees in order to avoid incurring a bargaining obligation. The judge credited the testimony of PBS Vice President Joanne Stratakos over that of the General Counsel's witnesses. The Board denied the Charging Party Union's motion requesting that the Board discredit Stratakos in this proceeding or remand the proceeding to the judge for new credibility determinations because Stratakos allegedly gave false testimony in a more recent case involving the Respondent.

On other issues, the Board agreed with the judge that PBS did not act unlawfully in announcing and implementing new terms and conditions of employment; that PBS was not obligated to recognize and bargain with Service Employees Local 32B-32J because it did not hire, as a majority of its workforce, former employees of General Growth; and that because of PBS' setting of new terms and conditions of employment was not shown to be unlawful, the former General Growth employees who either turned down offers of employment, or refused to apply for positions, with PBS were not unlawfully denied employment.

Charges filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1), (2), and (3). Adm. Law Judge Raymond P. Green issued his supplemental decision June 3, 1997.

Kloepfers Floor Covering, Inc., and its alter ego, Dynamic Floor Design (3-CA-22088; 330 NLRB No. 126) West Seneca, NY March 9, 2000. Chairman Truesdale and Member Fox granted the General Counsel's motion for summary judgment in the absence of good cause being shown for the Respondents' failure to file a timely answer and held that the Respondents violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with Carpenters Local #9 and failing to apply the terms of the 1999-2002 collective-bargaining agreement between the Floor Covering Contractors of Buffalo, New York and the Union when they were performing commercial work. The majority found that the December 30, 1999 letter sent to the Region by the Respondents' president stating that "the allegations are untrue" and requesting a jury trial and a court appointed attorney, failed to address any of the factual or legal allegations of the complaint and does not constitute a proper answer under the Board's Rules and Regulations. [HTML] [PDF]

Member Brame, dissenting, found the Respondents' letter is "a sufficient denial of the complaint allegations to put them at issue and require the General Counsel to prove them at a hearing." See his dissent in Eckert Fire Protection Co., 329 NLRB No. 79, slip op. at 4-5 (1999).

Charge filed by Carpenters Local #9; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment January 12, 2000.

Great Lakes Warehouse Corp. (13-CA-36553; 330 NLRB No. 125) Hammond, IN March 9, 2000. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(3) of the Act by disciplining and discharging Victor Oller for supporting Teamsters Local 142; and violated Section 8(a)(1) by offering a supervisory position to union proponent Gary Anderson. No exceptions were filed to the judge's findings of 8(a)(1) violations regarding the interrogation and a threat of unspecified retaliation for continuing to support the Union. [HTML] [PDF]

Charge filed by Teamsters Local 142; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago, July 7-8, 1998. Adm. Law Judge Robert T. Wallace issued his decision May 4, 1999.

Prime Equipment (32-CA-17101; 330 NLRB No. 128) San Mateo, San Francisco, Sacramento, San Jose, and Berkeley, CA March 10, 2000. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to recognize and bargain with Operating Engineers Local 3 which had represented its predecessor's employees; and by failing to provide the Union with requested information that was relevant and necessary for the performance of its duties as collective-bargaining representative. The judge found that the Respondent assumed and continued, without interruption, the operations of its predecessor (Clementina, Ltd.) on August 28, 1998 and that a majority of its workforce had been unit employees at Clementina. The Board found it unnecessary to rely on the judge's suggestion that the Respondent was a "perfectly clear" successor within the meaning of NLRB v. Burns Security Services, 406 U.S. 272 (1972), because this case does not involve the Respondent's obligation to bargain with the Union about the initial terms and conditions of employment for bargaining unit employees. [HTML] [PDF]

Charge filed by Operating Engineers Local 3; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oakland, May 27-28, 1999. Adm. Law Judge Gerald A. Wacknov issued his decision Sept. 24, 1999.

Addicts Rehabilitation Center Fund (2-CA-31771; 330 NLRB No. 113) New York, NY Feb. 29, 2000. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1), (2), and (3) of the Act in various respects including threats, interrogation, solicitation of employee grievances, creating and supporting an employer-dominated labor organization, transferring an employee to another department and laying off employees because of their union activities, and refusing to borrow money to fund payroll checks for its employees to demonstrate to them the adverse consequences of their organizing efforts. [HTML] [PDF]

Charge filed by AFSCME District Council 37; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing at New York in March, April, and May 1999. Adm. Law Judge Howard Edelman issued his decision July 20, 1999.

GFS Building Maintenance, Inc. (34-CA-7864; 330 NLRB No. 115) Hartford, CT Feb. 29, 2000. Affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) of the Act by its delay in supplying Service Employees Local 531 and its members with job applications for the former employees of Capitol Cleaning displaced by the Respondent's takeover of the cleaning at Hartford Square North. [HTML] [PDF]

The judge found, and the Board agreed, that the Respondent did not violate the Act by failing to hire the predecessor's employees. The General Counsel made a prima facie case showing that the Respondent harbored antiunion animus and the Respondent demonstrated that it would have followed the same hiring practices absent any union activity by the predecessor's employees, the judge concluded. Member Hurtgen agreed that the Respondent did not violate Section 8(a)(1) by failing to hire the predecessor's employees. Because he agreed that the Respondent established that it would not have hired the predecessor's employees regardless of any union considerations, he did not pass on the judge's finding of antiunion animus.

Charge filed by Service Employees Local 531; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, Dec. 15-16, 1997. Adm. Law Judge Wallace H. Nations issued his decision March 2, 1998.

Third Coast Emergency Physicians, P.A. (16-RC-10160; 330 NLRB No. 117) Austin, TX Feb. 29, 2000. The Board affirmed the Acting Regional Director's decision and order, finding that the Employer failed to establish that any of the disputed individuals (emergency physicians on the Senior Advisory Council and Dr. Calomeni) are supervisors within the meaning of Section 2(11) of the Act or are managerial employees. The physicians on the Senior Advisory Council do not make effective recommendations with regard to hiring, discipline, or evaluations, and they do not formulate and implement management policy, the Board held. It found no merit to the Employer's claim, which the Acting Regional Director failed to address, that Dr. Calomeni is a manager and/or supervisor because he promulgated and effectuated a complaint categorization system and directed and assigned an employee in developing and implementing the system. [HTML] [PDF]

The Employer provides emergency physicians to nine different hospitals in seven different cities. The Petitioner (Seton Third Coast Emergency Physicians Association) is seeking to represent all emergency physicians who perform emergency services on behalf of the Employer at Seton Medical Center and Seton Northwest Hospital in Austin, Texas. The Acting Regional Director found that the Employer, Third Coast Emergency Physicians-Sid Peterson, and Third Coast Emergency Physicians-Highland Lakes constitute a single employer that is engaged in interstate commerce within the meaning of the Act, that the Petitioner is a labor organization within the meaning of the Act, that the appropriate unit encompasses the emergency physicians only at the hospitals in Austin, Texas, and that the nurse practitioners and physician assistants are not properly included in the appropriate unit. The Employer did not request review of these findings.

Bekins Moving & Storage Co. (21-CA-32429; 330 NLRB No. 119) San Diego, CA Feb. 29, 2000. Affirming the administrative law judge's recommended Order, the Board dismissed the complaint, based on charges filed by Teamsters Local 542, alleging that the Respondent, as a successor employer, violated Section 8(a)(5) and (1) of the Act by setting initial terms and conditions of employment for unit employees without bargaining with the Union. [HTML] [PDF]

The Board found that the General Counsel failed to establish that General Manager Lovejoy was an agent of the Respondent in May 1997 and had the authority at that time to advise employees, on behalf of the Respondent, that the Respondent would probably retain them following its purchase of the facility. It wrote: "In particular, there is no evidence that Lovejoy had, at that time, been offered and accepted any position with the Respondent or had been directed to contact employees on behalf of the Respondent. Compare Lemay Caring Center, 280 NLRB 60, 66-67 (1986), enfd. mem. sub nom. Dasal Caring Centers v. NLRB, 815 F.2d 711 (8th Cir. 1987) (statements of acting administrator attributable to the successor employer because before the statements were made, the successor had hired her and authorized her to contact employees on its behalf regarding their employment with the successor." In addition to the foregoing, Member Hurtgen agreed with the judge's analysis under NLRB v. Burns Security Services, 406 U.S. 272, 294-295 (1972).

Charge filed by Teamsters Local 542; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Diego on Feb. 16, 1997. Adm. Law Judge Gerald A. Wacknov issued his decision May 10, 1999.

WXGI, Inc. and its successor Gee Communications (5-CA-27367; 330 NLRB No. 108) Richmond, VA Feb. 29, 2000. The Board affirmed the Administrative Law Judge's finding that the Respondent's station manager unlawfully discharged four employees who worked as "on air personalities" for the radio station, because of their protected activity in support of the union. [HTML] [PDF]

Charge filed by UFCW Local 400; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Richmond, April 20-23, 1998. Adm. Law Judge Thomas R. Wilks issued his decision August 25, 1999.

Reliable Electric Co, Inc. (27-CA-8682; 330 NLRB No. 111) Denver, CO Feb. 29, 2000. In this Supplemental Decision and Order upholding the Administrative Law Judge's supplemental decision, the Board majority of Members Fox and Brame concluded that Anthony Prilika is an "alter ego" of the Respondent companies and personally liable and jointly liable with the companies for $499,374 in backpay and $21,242 in contributions to various trust funds. In dissent, Member Hurtgen contended that the second prong for "piercing the corporate veil" under White Oak Coal, 318 NLRB 732 (1985), has not been established and that the General Counsel "has not met his burden to show that there has been fraud, injustice, or evasion of legal obligations." The Board's initial decision of November 9, 1987, 286 NLRB 834, was enforced by the U.S. Court of Appeals for the Tenth Circuit. [HTML] [PDF]

Hearing at Denver for 5 days between Dec. 13, 1994, and Jan. 24, 1995. Adm. Law Judge William L. Schmidt issued his supplemental decision Aug. 29, 1996.

Signet Testing Laboratories, Inc. (21-RC-19989; 330 NLRB No. 104) Santa Ana, CA Oct. 18, 1999. In this previously issued Decision and Order Directing Hearing published for inclusion in the Board's bound volume on February 22, 2000, the Board found merit in the Petitioner's exception to the Acting Regional Director's failure to set for hearing the issue of eligibility of 10 challenged ballots under the construction industry formula set forth in Daniel Construction Co., 133 NLRB 264 (1961) and Steiny & Co., 308 NLRB 1323 (1992). [HTML] [PDF]

The challenged ballots and William Kirk's are determinative in an election held December 11, 1998. The tally of ballots showed 4 votes for the Petitioner (Operating Engineers Local 12), 5 for the Intervenor (Southern California Conference of Carpenters and its District Councils and Local Unions), 1 against both labor organizations, and the 11 challenged ballots. In the absence of exceptions, the Board adopted pro forma, the Regional Director's recommendations that the issues raised by the Petitioner's Objections 1 and 2 and the remaining issues raised by the challenges be set for the hearing.

Dino and Sons Realty Corp. (2-CA-29306; 330 NLRB No. 106) New York, NY Feb. 25, 2000. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging and refusing to reinstate striking employees because they engaged in protected strike activity, and violated Section 8(a)(1) by telling employees that they had lost their jobs because they went out on strike and would not be rehired. In light of the finding that the Respondent discharged the striking employees in violation of Section 8(a)(3), Member Brame found it unnecessary to reach the judge's discussion of the status of the employees who replaced the strikers. [HTML] [PDF]

Charge filed by Najmal Upadye, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, March 26-28, 1997. Adm. Law Judge Jesse Kleiman issued his decision Dec. 31, 1997.

Letter Carriers Branch #47 (U.S. Postal Service) (27-CB-3733-P; 330 NLRB No. 109) Denver, CO Feb. 23, 2000. Members Liebman and Brame agreed with the administrative law judge that the Respondent violated Section 8(b)(1)(A) of the Act when it told Charging Party Dale Carroll that it would not provide him with the overtime desired list (OTDL) because he wanted the list in order to file charges against the Respondent, and not for a grievance. The statement demonstrated to Carroll the Respondent's retaliatory motive in refusing to provide the list and thus would reasonably tend to restrain and coerce an employee from filing charges with the Board, they held. [HTML] [PDF]

Members Liebman and Brame noted in further agreeing with the judge that the allegations contained in the amended charge and complaint are sufficiently related to the allegation in the original, timely filed charge, to satisfy the requirements of Section 10(b): the allegations involve the same section of the Act (Section 8(b)(1)(A)) and the same legal theory (the Union's duty of fair representation owed to all unit employees); the charge, amended charge, and complaint allegations involve the same sequence of events (Carroll's efforts to determine the accuracy of his overtime rights under the collective-bargaining agreement); and the Respondent was given adequate notice to prepare and present evidence to defend against the complaint allegations.

Member Hurtgen, dissenting in part, found that the General Counsel failed to show that Carroll would reasonably interpret the Respondent's explanatory remark (that it would supply information to support a grievance against the employer, but would not supply information to support a charge against itself) to mean that the Respondent was retaliating against him for charge-filing. He agreed that the Respondent's explanation is not a valid basis for refusing the information, but he found that it "is a far cry from threatening the employee that the refusal to supply information is a retaliatory punishment for charge-filing." In agreeing that the allegations contained in the amended charge are sufficiently related to the allegation in the original, timely filed charge, to satisfy the requirements of Section 10(b), Member Hurtgen found his colleagues' analysis is consistent with his own analysis in his dissent in Ross Stores, 329 NLRB No. 59 (1999).

Charge filed by Dale Carroll, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Denver, June 15-16, 1998. Adm. Law Judge Albert A. Metz issued his decision Oct. 1, 1998.

Wyndam International and Posadas De Puerto Rico Associates, Inc. d/b/a Condado Plaza Hotel & Casino (24-CA-7992; 330 NLRB No. 110) San Juan, PR Feb. 25, 2000. The Board rejected the Respondent's argument that the Union did not request bargaining with it about the announced change and affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing its past practice of withholding optional life and cancer insurance premiums from employees' paychecks. The Board modified paragraph 2(a) of the judge's recommended Order requiring the Respondent to "use its best efforts" to restore the group insurance policies for unit employees, to include standard remedial language. Member Brame would not modify paragraph 2(a). The Board modified the judge's recommended Order to order that the Notice to Employees be posted in both the English and Spanish languages and to include a provision that the Respondent preserve records necessary for the computation of backpay. [HTML] [PDF]

Charge filed by Asociacion De Empleados De Casinos De Puerto Rico; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Juan, Jan. 26-27 1998. Adm. Law Judge D. Barry Morris issued his decision May 5, 1999.

The National League of Professional Baseball Clubs (2-RC-22142, 2-RD-1440, 330 NLRB No. 112) New York, NY Feb. 24, 2000. The Board certified the Major League Umpires Independent Organizing Committee (MLUIOC) as the exclusive collective-bargaining representative of all major league umpires. In its decision, the Board adopted the January 21, 2000 report of NLRB Region 2 (New York City) Hearing Officer David E. Leach III. The report recommended overruling objections to an election in November 1999 and certifying the MLUIOC. The Major League Umpires' Association had filed exceptions to the Hearing Officer's report with the Board on February 4, 2000. The election was held pursuant to a Stipulated Election Agreement. The tally of ballots showed 57 for the Petitioner MLUIOC, 35 for the Intervenor (Major League Umpires Association), and none cast against the participating labor organizations. There were no challenged ballots. [HTML] [PDF]

Waste Management Inc. (4-RC-19571; 330 NLRB No. 96) Pen Argul, PA Feb. 14, 2000. Agreeing with the hearing officer, Members Fox and Liebman found that the Employer's bulletin board policy, both on its face and as applied (Union's Objections 2 and 10) and Supervisor McClain's threat to discharge Paul Trueman because he had defaced a piece of the employer's antiunion campaign literature (Union's Objection 6), constituted objectionable conduct. They set aside the election held December 18, 1998 (Teamsters Local 463 lost 108-70) and directed that a second election be held. Member Hurtgen, dissenting, would overrule all of the Union's objections and certify the results of the election. [HTML] [PDF]

In the absence of exceptions, the Board adopted pro forma the hearing officer's recommendation to overrule Union's Objections 1, 3, 5, 6 (except for that portion related to a threat of discharge), and 9.

Novato Disposal Services, Inc. (20-RC-17513; 330 NLRB No. 97) Petaluma, CA Feb. 10, 2000. The Board granted the Union's (Teamsters Local 624) request for review of the Regional Director's supplemental decision and direction of election finding that the smallest appropriate unit for bargaining consisted of drivers, drivers' helpers, mechanics, mechanics' helpers, recycle laborers, bailers, and buy-back attendants at all of the Employer's unrepresented companies. It found, contrary to the Regional Director, that the Employer's mechanics and mechanics' helpers do not share such a close community of interest with the included employees as to require their inclusion in the unit. [HTML] [PDF]

The Employer's operation includes two primary facilities at Petaluma and Santa Rosa, California, a yard in Gualala, California, and five transfer stations. The Regional Director previously found appropriate the petitioned-for unit of drivers and drivers' helpers employed at the Employer's Petaluma facility. The Board found, contrary to the Regional Director, that the Employer had rebutted the single facility presumption and that the petitioned-for unit was not appropriate; and remanded the case to the Regional to determine the appropriate unit for bargaining. 328 NLRB No. 118 (1999).

Sir Francis Drake Hotel (20-RC-17317; 330 NLRB No. 98) San Francisco, CA Feb. 14, 2000. Members Fox and Liebman held, in agreement with the hearing officer, that the brief remarks of the Unions' observer, Jose Lee, to five or six voters in the polling area during the election could not have affected the results of the election and certified Hotel Employees and Restaurant Employees Local 2 and Service Employees Local 14 (winner by a 64-28 vote in the November 19, 1997 election) as the exclusive representative of certain employees. The majority relied on the Union's large margin of victory and its finding that Lee's disregard of the Board agent's admonitions not to talk to voters did not suggest to voters that the Unions were conducting the election, not the Board. [HTML] [PDF]

Member Hurtgen, dissenting, would set aside the election, stating: "I would not permit a party, through its agent, to repeatedly flaunt the admonitions of a Board agent. Thus, for the sake of the integrity of the electoral system, I would sustain the objections in this case."

Office Depot (7-CA-38847; 330 NLRB No. 99) Plymouth, MI Feb. 16, 2000. The administrative judge found, and the Board agreed, that the threat allegations in the complaint are closely related to the discharge allegation in the charge and are not barred by Section 10(b), and that the Respondent violated Section 8(a)(1) of the Act by threatening the employees that they would earn less money if they selected the Union and by discharging Denise DeLaura because of her protected concerted activity of making common cause with the employees of another employer who were engaged in a protected work stoppage. [HTML] [PDF]

The evidence shows that on July 8, 1996, DeLaura was approached by a person indicating that he was to pick up an order for one of the Respondent's customers, the Detroit Newspaper Agency (DNA). DeLaura said to him in a normal tone of voice, "Oh, you work for the scab newspaper." DNA employees were engaged in a lawful work stoppage at the time. The DNA employee explained that he had worked for his employer for may years and had a family to feed. There was no further exchange between DeLaura and the DNA employee. DNA subsequently complained to the Respondent about the incident. by threatening employees that they would earn less money if they selected the Union. On July 10, Kenneth Zill, the Respondent's top manager, went to the shipping and receiving office where DeLaura worked and asked whether someone in that office had called the DNA employee a scab two days earlier. DeLaura admitted that she had told the DNA employee that he worked for a scab newspaper. The Respondent conceded that it discharged DeLaura for her use of the term "scab" to the DNA employee.

In a reversal of the judge, the Board found that the Respondent did not violate Section 8(a)(1) by telling employees that if they selected the Union, they would not be able to communicate with management in the same way and would have to pay union dues.

Charge filed by Denise M. DeLaura; complaint alleged violation of Section 8(a)(1). Hearing at Detroit on May 6, 1997. Adm. Law Judge Steven M. Charno issued his decision June 13, 1997.

Leather Agent, Inc. (3-CA-20451; 330 NLRB No. 100) Gloversville, NY Feb. 16, 2000. The Board found, contrary to the administrative law judge, that the record does not establish that the Respondent failed to recall employee Larry Burdick in December 1996 because of his union activities and dismissed the complaint in its entirety. [HTML] [PDF]

Charge filed by Glove Cities District of the Amalgamated Northeast Regional Joint Board, UNITE; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Albany on Sept. 15, 1997. Adm. Law Judge Joel P. Biblowitz issued his decision Oct. 23, 1997.

Cross Pointe Paper Corp. (13-CA-33121, 13-RC-18874; 330 NLRB No. 101) West Chicago, IL Feb. 17, 2000. Affirming the administrative law judge's decision, the Board overruled the Respondent's Objections 1, 2, and 3; sustained Objection 5; set aside the election held on November 4, 1993; and directed that a second election be conducted. Because Member Hurtgen would direct a second election based on Objection 5, he does not pass on the judge's analysis of Objection 2. [HTML] [PDF]

The Board held in 1995 that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with PACE, Paper, Allied-Industrial, Chemical and Energy Workers International, following its certification as exclusive bargaining representative. It rejected the Respondent's contention that the union certification was invalid based on its arguments in support of its objections. All representation issues raised by the Respondent were or could have been raised in the underlying representation proceeding, the Board held. 317 NLRB 558. On review, the Seventh Circuit denied enforcement and remanded the matter for further proceedings. 89 F.3d 447 (7th Cir. 1996).

On November 20, 1998, the Board remanded the proceeding for a hearing on the objections-four remain for consideration here. Objection 1 alleged that either the Union or third parties engaged in objectionable conduct by deliberately exacerbating "racial/ethnic feeling among employees by inflamatory appeals," Objection 2 alleged that the Respondent's supervisors instigated and assisted the Union's organizing activities, Objection 3 alleged that an eligible voter disrupted the election by screaming and complaining about the secrecy of his ballot, and Objection 5 alleged that a Union observer engaged in list keeping.

Adm. Law Judge Robert A. Giannasi issued his supplemental decision April 19, 1999.

Nor-Cal Beverage Co. (20-CA-28556; 330 NLRB No. 91) West Sacramento, CA Jan. 31, 2000. Members Fox and Liebman reversed the administrative law judge's dismissal of the complaint allegations and found that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing a warning notice to employee Tom Gould for calling fellow employee Chris Dugan a "scab." The majority found that Gould, in his two conversations with Dugan, was engaged in union activity protected under the Act (attempting to engender support among his fellow employees for the Teamsters strike and to induce them to honor the Teamsters picket line); and that Gould did not lose the Act's protection by using the word "scab" in the course of the conversations. [HTML] [PDF]

Member Hurtgen, dissenting, found that the Respondent acted under its lawful antiharassment policy in issuing the warning notice to Gould. He noted that Dugan was exercising his Section 7 right to refrain from union activity, was harassed for having done so, and complained to management.

Charge filed by Longshore and Warehouse Local 17; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Sacramento, March 24-25, 1998. Adm. Law Judge Jay R. Pollack issued his decision Feb. 12, 1999.

Cal-West Periodicals (32-RC-4475; 330 NLRB No. 87) Stockton, CA Jan. 31, 2000. Members Fox and Hurtgen agreed with the Regional Director that the two statements allegedly made by a nonagent employee supporter of the Union are not grounds for setting aside the election held August 13, 1998 (Teamsters Local 439 won 9-7). Member Brame, dissenting, found that the Employer has made out a prima facie case sufficient to require a hearing. [HTML] [PDF]

The majority treated the affidavits submitted by the Employer as true and accepted the following as the relevant facts. About 8 days before the election, an employee accompanied by two fellow workers approached employee Philpott as he was sitting at a lunch table in the employee lunchroom. As the three stood around Philpott's table, within earshot of another employee, one of the three told Philpott that he had better vote "Yes" for the Union, and if he did not, he could just wait and see what happened to him. Philpott (but not the other listening employee, who says he left after the first statement) alleges that "they" then said that if he crossed a picket line, they would beat him up.

The majority wrote: "There are no allegations that there were any picket lines around the Employer's premises and no allegations of any incidents of violence or other threats during the campaign that might give meaning to the 'wait and see' reference or immediacy to the picket line remark. With particular respect to the 'wait and see' remark, we agree with the Regional Director that this ambiguous statement does not necessarily establish a threat of physical harm. And, even if it did, the threat was by a nonagent and was not pervasive. And as noted above, the picket line reference had no context of immediacy."

Dissenting Member Brame found it important to consider the two alleged threats together along with the surrounding circumstances. He noted that the threat of physical violence was made in conjunction with the "wait and see" threat, which related directly to Philpott's vote and could reasonably be interpreted as an attempt to influence his vote; that the threats occurred just eight days prior to the election; and that the election was very close-a shift in a single vote could have changed the outcome. Member Brame wrote in finding his colleagues' emphasis on the fact that the statements were not made by agents of the Union is misplaced:

"The issue in the present case is the effect that the prounion employees' statements had on a free election: thus, agency is relevant only in determining the standard against which the allegedly objectionable conduct is to be judged." Applying what he believes is the "correct" standard for third-party or nonagent behavior (whether the misconduct created a general atmosphere of fear and reprisal rendering a free election impossible), Member Brame found that the Employer made out a prima facie case requiring a hearing on the issue.

Corporation for General Trade (WKJG-TV 33) (25-CA-23757, 24038; 330 NLRB No. 92) Fort Wayne, IN Feb. 8, 2000. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing its proposal affecting changes in unit employees' terms and conditions of employment. The judge found, and the Board agreed, that the parties had not reached impasse in their negotiations in view of the fact that there had been substantial movement in negotiations immediately prior to and after the Respondent implemented its proposals, and the Respondent had not informed the Union that it believed the parties were at impasse or otherwise indicated that further bargaining would be in vain. [HTML] [PDF]

Contrary to the judge, the Board dismissed the complaint allegation that the Respondent further violated Section 8(a)(5) and (1) because the proposal that it unilaterally implemented included a provision that merged the two historically separate units (production and technical unit and the talent unit) into one unit. The Board explained: "It is undisputed that on September 4 or 5, 1994, the Respondent sent the Union its proposal for a successor contract, which included, inter alia, a recognition clause that combined the two historically separate units into one unit. It is also undisputed, however, that the Respondent abandoned this proposed new recognition clause in its November 2, 1994 proposal. From that time forward, the Respondent proposed combining the substantive terms covering the two separate units into one contract, instead of two, with separate addenda for each unit. Since such proposal did not seek to alter, or have the effect of altering, the scope of the bargaining units, we dismiss this complaint allegation."

Charges filed by Electrical Workers IBEW Local 723; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Fort Wayne, June 2-4, 1997. Adm. Law Judge John H. West issued his decision Sept. 30, 1997.

Chicagoland Television News (13-RC-19844; 330 NLRB No. 94) Oak Brook, IL Feb. 9, 2000. The Board denied the Union's motion for reconsideration of its prior finding that the Employer did not engage in objectionable conduct by hosting a 12-hour party for employees on the day before the election, concluding that the attendance of five unit employees at the party was de minimis and does not warrant overturning the election. [HTML] [PDF]

The Board had found previously that three unit employees--Dwight Casimere, Nadine Arroyo, and Greg Prather--extended their normal meal breaks to attend the pre-election party, in part, on worktime. 328 NLRB No. 48 (1999). The Union contends that three other unit employees (for a total of six)-Tressa Pankovits, John Marsheets, and Mark Gambino-attended the party on worktime. The unchallenged testimony of Pankovits was that she attended the party after she had finished her shift. In denying the Union's motion for reconsideration, the Board found that the evidence in the record, inadvertently overlooked in its earlier decision, that Marsheets and Gambino attended the party on worktime, did not warrant a reversal of the prior decision.

Monroe Custom Utility Bodies (25-CA-25922; 330 NLRB No. 93) Cumberland, IN Feb. 8, 2000. The Board 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 refusing to hire and consider for hire employment applicants Mark Moran and Kurt Tucker. There are no material issues of fact or law in dispute and all material allegations of the complaint are true, the Board held. The Respondent agrees that its affirmative defense regarding backpay due the discriminatees can properly be litigated in a compliance proceeding and the Respondent does not oppose the General Counsel's motion. [HTML] [PDF]

Charge filed by Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment July 13, 1999.

Information Processing Services (5-CA-27896; 330 NLRB No. 95) Alexandria, VA Feb. 9, 2000. The Board concluded that it was a sham for the Respondent to claim that it had no knowledge as to parapraphs 1, 2, and 3 of the complaint, granted the General Counsel's motion to strike the Respondent's answer as to the paragraphs, and deemed the allegations in the parapraphs true. Given the Respondent's pro se status, the Board found its answer and attached letter sufficiently responsive to the complaint allegations containing the operative facts of the alleged violations and denied summary judgment as to paragraphs 4, 5, 6, and 7. The case was remanded to the Regional Director to arrange a hearing before an administrative law judge limited to the allegations in paragraphs 4, 5, 6, and 7. [HTML] [PDF]

General Counsel filed motion to strike answer and for summary judgment June 2, 1999.

Laborers Local 320 (Northwest Natural Gas) (36-CD-217, 218; 330 NLRB No. 86) Portland, OR Jan. 31, 2000. Relying on collective-bargaining agreements, Employer preference and past practice, area and industry practice, relative skills and training, and efficiency and economy of operations, the Board decided that employees of Northwest Natural Gas who are represented by Plumbers Local 290 are entitled to perform the work in dispute. The disputed work involves all unskilled "laborer's" work on the Mist Feeder Loop gas pipeline project, including, but not limited to, swamping, skidding, sandbagging, stringing, drilling, and pipe wrapping, but excluding work covered under the Teamsters and Operating Engineers collective-bargaining agreements. [HTML] [PDF]

Letter Carriers Branch 3126 (U.S. Postal Service) (7-CB-11194(P), et al.; 330 NLRB No. 85) Troy, MI Jan. 31, 2000. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(b)(1)(A) of the Act by refusing to file and process a grievance about overtime for Joe Pitlanish because of his nonmember status. Contrary to the judge, it held that the Respondent violated Section 8(b)(2) and (1)(A) when union steward Greg Swindall told a supervisor, in the presence of a unit employee, not to assign penalty overtime to Pitlanish. [HTML] [PDF]

Members Fox and Liebman modified the judge's recommended Order to provide, in accordance with Iron Workers Local 377 (California Iron Workers Employers Council), 326 NLRB No. 54 (1998), that if the Respondent cannot pursue Pitlanish's grievance through the contractual procedure, a make-whole remedy will be imposed only if the General Counsel shows in compliance the meritoriousness of the grievance if it had been properly pursued by the Respondent. If the General Counsel makes the required showing, the Respondent shall only be obligated to make Pitlanish whole for any increase in damages he suffered as a consequence of the Respondent's refusal to process the grievance. Members Fox and Liebman also required the Respondent to bear the reasonable costs of an attorney of Pitlanish's choosing to represent him at any grievance proceedings, including arbitration, that may take place.

For the reasons set forth in his dissenting opinion in Iron Workers Local 377, Member Hurtgen said he "would adhere to the Board's established policy of seeking full relief for victims of unfair labor practices and not the 'half-a-loaf' relief my colleagues would afford to victims of this type of 8(b)(1)(A) violation."

Charges filed by Joe Pitlanish; complaint alleged violation of Section 8(b)(1)(A) and 8(b)(2). Hearing at Detroit, Aug. 20-21, 1998. Adm. Law Judge George Carson II issued his decision Sept. 30, 1998.

Central Brooklyn Coordinating Council (29-CA-22180; 330 NLRB No. 88) Brooklyn, NY Jan. 31, 2000. No exceptions were filed to the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by accelerating the date of discharge of eight caseworkers and three case-aids because of their activity for State, County and Municipal Employees District Council 1707, and that the employees would have been discharged shortly thereafter for nondiscriminatory reasons. [HTML] [PDF]

The Respondent is a not for profit corporation that provides a variety of social service functions under contract with agencies of New York. The judge found that the Respondent, in order to retain funding, had to comply with New York State law that required all caseworkers to possess a 4-year degree from an accredited college or university. The eight caseworkers all lacked this credential, and so the Respondent would have discharged them subsequently in order to retain funding. There was no requirement that the three case-aids possess degrees. The judge found that the Respondent would have terminated them subsequently for financial reasons.

The Charging Party excepted to the judge's recommended remedy, contending that he unduly limited the backpay award for the discriminatees. Citing Keeshin Charter Service, 250 NLRB 780, 781 (1980), the Board found that the backpay period for the caseworkers should run from the date of unlawful discharge until the date they would have been otherwise discharged, absent their protected activity. Backpay for the case-aids should run from the date of their discharge until the date they would have been discharged for economic reasons.

Charge filed by America Fajardo-Wyatt; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn, March 16-17, 1999. Adm. Law Judge Raymond P. Green issued his decision May 13, 1999.

6 West Limited Corp., and its Partner, Lettuce Entertain You Enterprises, Inc., d/b/a Tucci Milan (13-CA-32908, et al.; 330 NLRB No. 77) Chicago, IL Jan. 24, 2000. Members Fox and Liebman affirmed the administrative law judge's findings that: (1) the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging union activist Brian Gibson, allegedly for his conduct in connection with the disappearance of certain "manager's logs," and discharging Gretchen Grant Innis, Jill Ricci, and Greg Calvird pursuant to the discriminatory application of a no-solicitation rule; and (2) violated Section 8(a)(1) by falsely telling employees that Hotel Employees and Restaurant Employees Local 1 had threatened to blow up a house shared by Gibson and Ricci and that employees were in imminent danger of union violence. [HTML] [PDF]

They also found, however, that the Respondent committed additional violations of Section 8(a)(1) by increasing the use of security guards during the union campaign and by soliciting grievances. The judge's recommended Order and notice to employees were modified to include the violations found and the appropriate redress therefor.

Member Hurtgen, dissenting in part, would reverse the judge's finding that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging Brian Gibson. He assumed arguendo that the judge correctly found that a prima facie case was established, but he concluded that the Respondent successfully rebutted it. Member Hurtgen, contrary to his colleagues, agreed with the judge that the Respondent did not violate Section 8(a)(1) by increasing security or by soliciting grievances.

Charges filed by Brian Gibson, Jill Ricci, Gretchen Grant, and Joseph Carmolli, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago, Oct. 30-Nov. 1 and Dec. 17-18, 1996. Adm. Law Judge Thomas R. Wilks issued his decision Nov. 5, 1997.

Rockwell Automation/Dodge (Formerly Reliance Electric) (10-CA-29818; 330 NLRB No. 82) Rogersville, TN Jan. 26, 2000. The Board reversed the administrative law judge and dismissed the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Gregory Silvers on October 16, 1996 because of his activities for the Machinists International. [HTML] [PDF]

Members Fox and Liebman found it unnecessary to decide whether the facts cited by the judge support his conclusion that Silvers' union activity was a motivating factor in his discharge because, even assuming arguendo that the General Counsel has met his burden, they found that the Respondent met its Wright Line burden of establishing that it would have discharged Silver even in the absence of his protected activity. Contrary to the judge, they found that the evidence shows that the Respondent reasonably believed that Silvers falsified company records. Moreover, uncontroverted evidence shows that the Respondent previously had discharged two employees who like Silvers falsified records and had received prior disciplinary actions, Members Fox and Liebman added. They disagreed with the judge's conclusion that the Respondent's asserted reasons for discharging Silvers were pretextual.

Member Brame, concurring in the result, found that the Respondent's discharge of Silver did not violate the Act because the General Counsel failed to establish a prima facie case of union discrimination and therefore, unlike his colleagues, he did not consider whether the judge correctly concluded that the Respondent would have discharged Silvers in the absence of his protected union activity.

Charge filed by the Machinists International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Rogersville, Feb. 12-13, 1998. Adm. Law Judge Howard I. Grossman issued his decision Nov. 3, 1998.

Tasty Baking Co. (4-CA-24152, et al.; 330 NLRB No. 80) Philadelphia, PA Jan. 31, 2000. Members Fox and Liebman agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing written warnings to Michael Flannery and Robert Nolan, suspending Nolan, and transferring Supervisor Edwina Flannery to the night shift because of her husband's union activity. Further, they affirmed the judge's findings that the Respondent violated Section 8(a)(1) by demoting E. Flannery to a nonsupervisory position, threatening employee Martin with unspecified reprisals if he should engage in union activity, telling M. Flannery that it was imposing a new get tough policy in response to his union activities and that he was issued a warning for such activities, and threatening M. Flannery with discharge because of his union activities and for calling OSHA. [HTML] [PDF]

Member Hurtgen, dissenting in part, disagreed with two of his colleagues' findings. He found that Supervisor Kenny, in speaking to employee Martin, did not violate Section 8(a)(1) because it has not been firmly established that Kenny suggested reprisals for union activity and that the Respondent's demotion of E. Flannery did not violate the Act because the complaint allegation regarding her demotion is time barred by Section 10(b).

Charges filed by Teamsters Local 115; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia between Feb. 26 and March 5, 1997. Adm. Law Judge George Aleman issued his decision June 15, 1998.

Sea Crest Construction Corp. and Peter Scalamandre & Sons, Inc., Joint Employers (2-CA-31219; 330 NLRB No. 83) Freeport, NY Jan. 31, 2000. The Board, agreeing with the administrative law judge that the Respondents have not sustained their burden of showing that Charging Party Ian Henry directed a profane statement at a supervisor, held that the Respondents violated Section 8(a)(3) and (1) of the Act by discharging shop steward Henry because of his protected activities for Carpenters Local 157 and complaints to the Respondent and an OSHA representative about the inadequacy of respiratory protection for carpenters. [HTML] [PDF]

Charge filed by Ian Henry, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, Dec. 12-13, 1998 and Feb. 17, 1999. Adm. Law Judge D. Barry Morris issued his decision June 2, 1999.

Detroit Newspapers (7-CA-40012; 330 NLRB No. 78) Detroit, MI Jan. 14, 2000. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally and without agreement of the Unions, and without having reached a valid impasse, implementing its final offers affecting changes in the unit employees' working conditions while violations found in two other cases remained unremedied. The Board agreed with the judge that the Respondent failed to meet its "heavy burden" of showing that the Unions' publication of an interim newspaper (the Detroit Sunday Journal) constituted clear and present danger of a conflict of interest interfering with the collective-bargaining process. Noting that the Unions have made an unequivocal commitment to shut down the interim publication once the labor dispute is resolved, the Board said: "It has not been established that the Unions' operation of its newspapers-for this specifically limited duration-would present a conflict of interest which would jeopardize good-faith bargaining." [HTML] [PDF]

Charges filed by Detroit Mailers Union No. 2040, Teamsters; Detroit Typographical Union No. 18; Communications Workers; GCIU Local 13N; and Teamsters Local 372; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit, Jan. 21-23 and March 24-26, 1998. Adm. Law Judge Karl H. Buschmann issued his decision March 10, 1999.

Ferguson Electric Co. (3-CA-19630; 330 NLRB No. 75) Plainville, CT Jan. 19, 2000. Chairman Truesdale and Member Fox, in ordering the Respondent to pay David Carr gross backpay in the amount of $25,626, made these findings. Carr's status as a paid, full-time union organizer, or "salt," does not deprive him of the Act's protection. The backpay period ran from August 30, 1995 (when the Respondent first employed electricians at the Kendall jobsite following Carr's August 21, 1995 application for work as an electrician there) through July 1, 1996 (when Carr would have quit his employment with the Respondent to work exclusively for the Union). Carr's earnings from his secondary employment, akin to moonlighting, as a full-time union organizer during the backpay period should not be counted as interim earnings and offset against gross backpay. The General Counsel satisfied his burden to show the gross amount of backpay to which Carr is entitled and the Respondent failed to produce evidence that would mitigate its liability by arguing that Carr should be denied backpay because he unreasonably limited his search for interim employment to nonunion contractors who were targeted by the Union for organizing. [HTML] [PDF]

Member Hurtgen, dissenting in part, would place certain evidentiary burdens on the General Counsel that have not been met. He noted that here, unlike the traditional 8(a)(3) case where the burden is on the employer to show that employment would have been terminated at some subsequent point even if the discriminatory discharge had not occurred, the Union effectively controls the duration of employment. Thus, the Union (General Counsel) should bear the burden of going forward with the evidence as to the duration of an organizational campaign and whether the Union wishes to organize the new site. Because those matters have not been shown, the Union and the General Counsel have not established the backpay period or the amount of gross backpay, Member Hurtgen found. In addition, even if they had done so, he would place the burden on the General Counsel and the Union to go forward with evidence that the Union was prepared to lift its limitations on the type, and hence the number, of employers from whom Carr could have sought interim employment, as well as the potential duration of his interim employment.

D.L. Baker Electric (5-CA-24131, 24190; 330 NLRB No. 79) Vienna, VA Jan. 19, 2000. The Board found that the general denials in the Respondents' answers to paragraphs 17, 18, 19, 24, and 32 of the compliance specification do not meet the specificity requirements of Section 102.56 of the Board's Rules and Regulations, and granted the General Counsel's motion for partial summary judgment as to those matters (the formulae and calculations of gross backpay for all claimants and interim earnings and calendar quarter net backpay for claimants who worked for the original Respondent D.L. Baker, Inc. t/a Baker). The proceeding was remanded to the Regional Director to schedule a hearing before an administrative law judge limited to the remaining allegations of the compliance specification. [HTML] [PDF]

Hovey Electric, Inc. and Christian Labor Association Local 18 (7-CA-40164(E), 7-CB-11532(E); 330 NLRB No. 76) Midland, Portage, and Harbor Beach, MI Jan. 18, 2000. The Board agreed with the administrative law judge for the reasons stated in sections B and C of his supplemental decision, that the General Counsel was substantially justified in issuing and pursuing the complaint allegations against Respondent Hovey Electric, Inc. and denied the application for attorney's fees and expenses pursuant to the Equal Access to Justice Act filed by Hovey. The Board found it unnecessary to pass on the judge's findings in section D of his supplemental decision rejecting certain of the arguments the General Counsel advanced in support of his position because they have no bearing on the result in this case. Member Brame noted that Respondent Hovey did not except to the judge's failure to make an explicit finding that the General Counsel was substantially justified in filing exceptions to his original decision in this case. [HTML] [PDF]

In the underlying unfair labor practice proceeding, the Board affirmed the judge's recommended dismissal of complaint allegations that the Respondents violated the Act when Hovey granted recognition to Local 18 premised upon Section 9(a) of the Act and entered into and maintained a collective-bargaining agreement with Local 18 that includes a union-security clause, withheld from the wages of its employees, and transmitted dues and initiation fees to the Union, all at a time when it did not represent a majority of Hovey's employees.

Adm. Law Judge Bruce D. Rosenstein issued his supplemental decision Aug. 27, 1999.

Detroit Newpspapers and The Detroit News, Inc. (7-CA-40759, et al.; 330 NLRB No. 81) Detroit, MI Jan. 21, 2000. The Board denied the Respondents' motions to dismiss the complaints alleging that they violated Section 8(a)(3) and (1) of the Act by discharging 59 employees because of their assistance to the Charging Party Unions and because they engaged in protected strike activity against the Respondents. The Respondents have not demonstrated that the General Counsel's issuance of the instant complaint is untimely under Section 10(b) of the Act or otherwise beyond its discretion, the Board held. [HTML] [PDF]

The charges in the instant case were filed during the course of the hearing on the consolidated complaints in Cases 7-CA-38079, et al., alleging that certain striking employees were disciplined or discharged because of their concerted protected activity related to the strike. The instant charges are based on evidence obtained during that proceeding and allege that Respondent Detroit Newspaper Association (DNA) and Detroit News unlawfully discharged a number of additional strikers while issuing lesser forms of discipline to nonstrikers for comparable or more severe alleged misconduct. The General Counsel sought to litigate the instant allegations in the other proceeding, but the Respondents opposed the General Counsel's motion, the judge denied it, and the Board denied the General Counsel's request for special permission to appeal the judge's ruling on the ground that no abuse of discretion had been shown. The Board noted, however, that it did not pass on whether the allegations sought to be added were barred by Section 10(b) or whether the allegations could be properly pled and litigated separately. On July 19, 1999, the Regional Director issued the instant complaint.

The Board wrote in denying the Respondents' motions to dismiss: "We find that the judge's denial of the General Counsel's earlier motion to amend the complaint leaves the General Counsel free to litigate the rejected allegations in the instant proceeding. Where as here the Respondents opposed the General Counsel's earlier motions to amend the underlying consolidated complaint, they cannot now claim that it is a breach of due process to have two separate hearings." The Board also rejected the Respondents' contention in their second motion to dismiss that 11 of the alleged discharges are barred by Section 10(b) because they were not mentioned in any charge. All of the additional alleged discharges in the complaint are closely related to the timely charge allegations in Cases 7-CA-38079 et al., and are therefore not time-barred regardless of whether they were specifically mentioned in any charge, the Board said. Further, it agreed with the General Counsel that the Respondents had sufficient notice that the 11 alleged discriminatees were at issue.

Insight Communications Co. (25-CA-25583; 330 NLRB No. 64) Noblesville, IN Jan. 7, 2000. The Board agreed with the administrative law judge that the Respondent seized on the discriminatees' alleged violation of its break policy as a pretext for discharging them in retaliation against their union activities and that the Respondent discharged David Beebe, Ki Young Choi, and Lonnie Phillips in violation of Section 8(a)(3) and (1) of the Act. The judge found, with Board approval, that the Respondent further violated Section 8(a)(3) and (1) by providing new tools to employees, reimbursing them for copayment expenses with their health insurance, and giving employees coupons for "pay-per-view" movies; and violated Section 8(a)(1) by promising employees additional benefits and interrogating employees. [HTML] [PDF]

Charge filed by David Beebe, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Indianapolis on March 2-6, 1998. Adm. Law Judge Nancy M. Sherman issued her decision June 9, 1999.

K.B.I. Security Services (34-CA-6495, 6667; 330 NLRB No. 67) Bridgeport, CT Jan. 10, 2000. On remand from the U.S. Court of Appeals for the Second Circuit, the Board ordered the Respondent to offer reinstatement and full backpay to discriminatees Orlando Febus and Hector Rosenthal. The Board agreed with the administrative law judge that there is no proven basis for denying Febus and Rosenthal reinstatement based on thefts that took place at a client's premises where the Respondent employed them and others as security guards. But, it disagreed with the judge's finding that Febus' use of the telephone to make unauthorized calls at the same premises warranted denial of reinstatement. There is insufficient proof that Febus made the disputed telephone calls, the Board said. [HTML] [PDF]

Pepsi-Cola Company (22-CA-21941; 330 NLRB No. 69) Piscataway, NY Jan. 10, 2000. The Board remanded the proceeding to the administrative law judge because his decision, finding that the Respondent violated Section 8(a)(1) and (3) of the Act by suspending and discharging shop steward Sean Reilly because of his protected concerted activity, did not include the appropriate analysis and findings required under NLRB v. Burnup & Sims, 379 U.S. 21 (1964). [HTML] [PDF]

The Board found that the judge failed to make an explicit determination of whether the Respondent affirmatively established that it had an honest belief that Reilly engaged in misconduct (calling for a work stoppage in violation of the collective-bargaining agreement). It further found that, even assuming the judge's decision could be construed as having found that the Respondent did establish its honest belief defense under Burnup & Sims, his analysis does not adequately discuss the next part of the test, i.e., whether the General Counsel carried his burden of showing that Reilly did not engage in the misconduct. The only evidence the General Counsel offered on this point was the testimony of Reilly, who denied making the statements attributed to him by product manager Vaughan Dickinson. The judge did not make a specific credibility finding concerning Reilly's denials.

Member Hurtgen agreed that the case should be remanded. He noted that the judge appeared to have concluded that the Respondent established that it had a reasonable belief that Reilly engaged in misconduct, adding: "[I]t is also arguable that the judge concluded that the evidence was in equipose as to whether Reilly actually engaged in the misconduct." Had the judge clearly reached that conclusion, Member Hurtgen would find that the General Counsel failed its burden of establishing that Reilly had not, in fact, engaged in the misconduct. However, because the judge's findings are ambiguous on the point, and because clear credibility determinations were not made, he agrees that the case should be remanded.

Charge filed by Teamsters Local 125; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Newark on Feb. 17, 1999. Adm. Law Judge Raymond P. Green issued his decision April 15, 1999.

GATX Logistics, Inc. (7-CA-40799; 330 NLRB No. 71) Kalamazoo, MI Jan. 10, 2000. The administrative law judge found, with Board approval, that the Respondent coercively interrogated an employee concerning his union sympathies, threatened employees that it would use unlawful means to keep out the Union, that it would make its employees' efforts to become represented by a union futile, and that it would take disciplinary action if the employees engaged in protected concerted activities, all in violation of Section 8(a)(1) of the Act. The Board also affirmed the judge's conclusion that the Respondent legally discharged Dennis Bury for insubordinately and without timely explanation refusing to accept an assigned route and did not violate Section 8(a)(3) and (1) by discharging him. [HTML] [PDF]

Charge filed by Teamsters Local 7; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Kalamazoo, March 24 and June 8, 1999. Adm. Law Judge Robert M. Schwarzbart issued his decision Sept. 1, 1999.

Defiance Hospital (8-CA-27724, et al.; 330 NLRB No. 70) Defiance, OH Jan. 11, 2000. The Board, finding that the Respondent presented the Unions with a fait accompli, affirmed the judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by announcing its unilateral decision to grant a wage increase for bargaining unit employees without affording Service Employees District 1199 and Office & Professional Employees Local 514 (the joint representative) adequate notice and the opportunity to bargain over the amount of the increase. The Board rejected the Respondent's contention, in its exceptions and a motion to strike, that comments the judge made off the record and in his decision show the judge was biased and prejudiced, and therefore the decision should be struck. [HTML] [PDF]

Charges filed by Service Employees District 1199 and Office & Professional Employees Local 514; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Defiance, Jan. 16-17 and Dec. 1, 1997. Adm. Law Judge Marion C. Ladwig issued his decision March 30, 1998.

Ernest Lee Tile Contractors (5-CA-26004; 330 NLRB No. 61) Tuxedo, MD Jan. 5, 2000. The Board granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(1) of the Act by discharging employees Ernest Lindsay, Calvin E. Ramey, Jr., Gregory L. Ramey, and Robert S. Wise because they engaged in concerted activities by discussing the Respondent's failure to pay the scale wages required on federally funded Davis-Bacon jobs, writing letters to the government contact person to report the Respondent's failure to do so, demanding that the Respondent pay the correct wages, and complaining to the Respondent regarding employees' wages, hours, and working conditions. [HTML] [PDF]

The Respondent initially filed an answer to the complaint and thereafter entered into a settlement agreement. The agreement included an 18-month installment payment plan through which the Respondent agreed to make whole Linsday, Ramey Jr., Ramey, and Wise. The Respondent made 14 payments, but the last four installments under the agreement have been unpaid for more than 4 months. The agreement provided that the Respondent's answer to the complaint would be considered to be withdrawn if it failed to comply with the settlement. Such noncompliance has occurred.

Charge filed by Washington D.C. Building and Construction Trades Council; complaint alleged violation of Section 8(a)(1). General Counsel filed motion for summary judgment Nov. 8, 1999.

Ronin Shipbuilding, Inc. (24-CA-7717; 330 NLRB No. 65) Ponce, PR Jan. 7, 2000. The Board found, contrary to the administrative law judge, that the General Counsel failed to make the requisite initial showing that antiunion sentiment was a motivating factor in the Respondent's decision to discharge Elias Martinez and dismissed complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Martinez on June 2, 1997. Even assuming that the General Counsel made the requisite showing, the Board found that the Respondent met its rebuttal burden of showing that it would have discharged Martinez because of his attendance problems even in the absence of his union activities. [HTML] [PDF]

Charge filed by Union De Trabajadores Industriales De Puerto Rico; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Juan, Feb. 2-3, 1998. Adm. Law Judge Arthur J. Amchan issued his decision April 14, 1998.

Lockheed Martin Astronautics (27-CA-14557, et al.; 330 NLRB No. 66) Littleton, CO Jan. 6, 2000. The Board agreed with the administrative law judge that, in discussing the effects of security guard Jolene Conn's medical restrictions on other guards as possibly grievable, the Respondent's employees were discussing working conditions that affected them, and thus were engaged in protected concerted activity; and that the Respondent therefore violated Section 8(a)(1) of the Act by directing employees not to speak of those issues. The Board rejected the Respondent's argument in its exceptions that the restrictions on employee discussions were justified by the need to effectively investigate Conn's discrimination allegations and to fulfill obligations under the Americans with Disabilities Act (ADA) to prevent development of a hostile work environment, to avoid harassment of and retaliation against employees with disabilities, and to maintain the confidentiality of medical information. [HTML] [PDF]

On another alleged violation, the Board held, contrary to the judge, that the Respondent did not violate Section 8(a)(3) and (1) by reprimanding Conn and Arthur Romano for discussing Conn's complaint, finding merit in the Respondent's argument in its exceptions that Romano acted on his own in approaching Conn and that their conversation was therefore not concerted and not protected. Neither Conn nor Romano testified. The record does not indicate the content of their conversation which started as Romano's attempt to apologize to Conn (despite supervisors directing him not to) for discussing her medical restrictions and denegerated into a confrontation over the general subject of the ADA investigation.

The Board remanded two issues to the judge for further consideration-complaint allegations that the Respondent violated Section 8(a)(3) and (1) by its May 1996 suspension and January 1997 discharge of Gutierrez.

Charges filed by Joseph F. Fiala, Anthony H. Romano, and Lee Gutierrez; complaint alleged violation of Section 8(a)(1). Hearing at Denver, July 28-29, 1997. Adm. Law Judge Albert A. Metz issued his decision Nov. 18. 1997.