Recent Decisions of the
National Labor Relations Board
2000 July-December

Beverly Health and Rehabilitation Services, Inc., et al. (15-CA-14269, 14297; 332 NLRB No. 170) Montgomery, AL Dec. 8, 2000. By direction of the Board and in a published order signed by the Associate Executive Secretary, the joint motions of the Respondent and Charging Party to vacate the Board decisions and orders 328 NLRB No. 145 (July 23, 1999) and 328 NLRB No. 122 (June 30, 1999) were granted. The motions are based on a non-Board agreement that resolves several unfair labor practices. The Respondent and Charging Party agree also that execution of collective-bargaining agreements by the parties effectively remedy the Respondent's failure to provide information as found by the Board in the two decisions. The Order stated that the General Counsel's objections were insufficient to warrant denial of the joint motion. [HTML] [PDF]

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Metrocare Home Services, Inc. (2-CA-30301, 31636; 332 NLRB No. 155) New York, NY Dec. 29, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally announcing a wage reduction on February 12, 1997 and implementing the wage reduction without having reached impasse in negotiations with Community and Social Agency Employees District Council 1707, AFSCME. [HTML] [PDF]

The Board rejected the Respondent's contention in its exceptions that the judge erred in finding an unfair labor practice that was not alleged in the complaint-that the Respondent violated Section 8(a)(5) and (1) by unilaterally announcing a wage reduction on February 12, 1997. The Board wrote, citing Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990): "It is well settled that the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated. This rule has been applied with particular force where the finding of a violation is established by the testimonial admissions of the Respondent's own witnesses." The Pergament test has been satisfied and the judge properly found the violation, the Board held in the instant case.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Community and Social Agency Employees District Council 1707, AFSCME; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, Oct. 26, Nov. 3, and Dec. 7, 1998. Adm. Law Judge Eleanor MacDonald issued her decision June 30, 1999.

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Ryder Student Transportation Services (18-RC-16461; 332 NLRB No. 166) St. Paul, MN Dec. 29, 2000. Applying Atlantic Limousine, 331 NLRB No. 134 (2000), Chairman Truesdale and Member Liebman affirmed the Regional Director's recommendation to sustain the Petitioner's Objection 1 and direct a second election, finding that the Employer engaged in objectionable conduct by holding a raffle for employees. Member Hurtgen dissented. [HTML] [PDF]

Two days before the election held May 26 and 27, 1999, the Employer announced that it would hold a raffle for employees and award two trips to Disney World or $1000 in cash (after taxes) if 1450 of the approximately 1690 eligible voters cast ballots in the election. The tally of ballots shows that 664 cast votes for, and 723 against, School Employees Local 284, SEIU, with 49 challenged ballots, an insufficient number to affect the result. Although the election was 14 short of the Employer's prerequisite figure for holding the raffle, it announced in its June 8, 1999 newsletter to employees that it would conduct the raffle at the "Ryder Employee and Family Appreciation Day" scheduled for June 12.

"Eligibility for participating in the Employer's raffle was clearly tied to voting in the election, and thus it violated the first prong of the two-prong disjunctive test set forth in Atlantic Limousine," Chairman Truesdale and Member Liebman held. Although the Employer also arguably violated the second prong by "announcing a raffle" within 24 hours before the scheduled opening of the polls, the majority found it unnecessary to make that determination here.

For the reasons set forth in his dissent in Atlantic Limousine, Member Hurtgen does not endorse a per se ban on election raffles and would instead adhere to the longstanding multifactor standard set forth in Sony Corp. of America, 313 NLRB 420 (1993). Applying the Sony standards, he found that the raffle and announcement were not objectionable and would overrule the Petitioner's Objection 1 and certify the results of the election.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Stan Scott d/b/a Scott Brothers Dairy, a Sole Proprietorship (31-CA-23438, et al.; 332 NLRB No. 163) Chino, CA Dec. 26, 2000. The Board held that the Respondent unlawfully withdrew recognition from Teamsters Local 63, that the Respondent's withdrawal of recognition was tainted by its serious unremedied unfair labor practices which had a tendency to undermine the unit employees' support for the Union, and that a bargaining order with its temporary decertification bar is necessary as a remedy. [HTML] [PDF]

The Respondent's misconduct included prohibiting the Union's representatives from gaining access to its premises as provided in the expired collective-bargaining agreement, refusing the Union's request for information, unilaterally changing employees' terms and conditions of employment in the absence of a bargaining impasse, polling employees concerning their own and other employees' union activities, soliciting employees to sign an antiunion petition, threatening employees that it would not sign another union contract, and impliedly threatening employees with job loss if they persisted with contract demands and with the futility of bargaining if they continued to support the Union.

"Thus, in this context, the Respondent could not justify its withdrawal of recognition and thereby lawfully sever its bargaining relationship by presenting evidence of employee dissatisfaction with the Union," the Board held. And, even assuming that the decertification petition was not tainted by any unfair labor practices, it was insufficient to establish that the Respondent lawfully withdrew recognition based on a good-faith doubt as to the Union's continuing majority status. Member Hurtgen agreed that the employee disaffection from the Union was tainted by the Respondent's antecedent unfair labor practices. He did not reach the issue of whether, absent such unfair labor practices, the disaffection would have been sufficient to privilege a withdrawal of recognition.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Teamsters Local 63; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles, Jan. 19 and May 18, 1999. Adm. Law Judge Frederick C. Herzog issued his decision June 7, 1999.

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The court, agreeing with the separate concurring opinion of Members Fox and Liebman, found "no evidence at all" that the organizers were ejected from the snack bar pursuant to the Respondent's no-solicitation rule. Rather, the court said the organizers were excluded because of trespass warrants pending against them the Respondent had obtained.

In the instant case, the Board adopted the analysis previously set forth in the concurring opinion and concluded the Respondent was entitled to eject the organizers from its premises based solely on the outstanding trespass warrants.

A second issue for Board consideration on remand concerns the exclusionary actions by the Respondent to prevent nonemployee union organizers from soliciting on sidewalks within 50 feet of the entrances to four of its leased store properties. The General Counsel contended the Respondent's actions violated Section 8(a)(1). In its original decision, the Board dismissed 8(a)(1) allegations that the Respondent had unlawfully directed nonemployee organizers to move off the sidewalk and by threatening them with arrest. The court, however, held the Board had misinterpreted Virginia law in finding that the maintenance provisions in the Respondent's store leases gave it the right to exclude the organizers. Accordingly, the Board reversed its prior decision on this issue and found a violation since the Respondent had failed to prove it possessed a sufficient property interest to exclude the organizers.

(Chairman Truesdale and Members Fox, Liebman, and Hurtgen participated.)

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Canned Foods, Inc., d/b/a Grass Valley Grocery Outlet (20-CA-26685, et al., 332 NLRB No. 160) Berkeley, CA Dec. 15, 2000. The Board majority of Chairman Truesdale and Member Fox agreed (but on different grounds) with the administrative law judge's conclusion that the Respondent unlawfully sent a message to employees prior to a June 12, 1995 election (6 votes for the union, 6 against, 13 determinative challenged ballots) leading employees to believe a planned wage increase was being cancelled -- rather than postponed -- because of the election. The Board pointed out that, contrary to the judge, the Respondent did not blame the Union for the failure to give the raises at the originally planned time. Rather, the Respondent failed to communicate the planned wage increases were merely being postponed until after the election when their implementation could no longer be view as a bribe. It stated: [HTML] [PDF]

The cancellation of a planned wage increase because of a representation election is clearly unlawful and distinguishes this case from those like Uarco, on which the Respondent relies, where the planned wage increase was merely postponed.

Dissenting in part, Member Hurtgen agreed with the majority that the announcement was unlawful but not the failure to grant the wage increase itself. He said "the action that was taken was in fact a postponement (the wage increases were given after the election). Thus, it does not follow the illegality of the announcement leads inexorably to illegality of the action."

The Board reversed the judge's finding that the Respondents were a single employer given the scant evidence of central control of labor relations.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Food & Commercial Workers Local 588; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearings at San Francisco and Sacramento, April 7, September 23, November 3 through 6, 12 and 13, and 17 through 19, and December 1, 2, 9, and 10, 1997. Adm. Law Burton Litvack issued his decision December 31, 1998.

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Newlonbro, LLC (Connecticut's Own) (34-CA-8913; 332 NLRB No. 146) Milford, CT Dec. 29, 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 Howard Sachs because of his activities for Teamsters Local 13; and violated Section 8(a)(1) by interrogating employees regarding their union sympathies, creating the impression that their union activities were under surveillance, and threatening employees with more onerous working conditions if they selected the Union as their bargaining representative. [HTML] [PDF]

On another alleged violation, the Board affirmed the judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(3) and (1) by discharging Michael Frank. The judge found that the General Counsel made a strong prima facie case that Frank's union activities were a motivating factor in the Respondent's decision to discharge him. He found however that the Respondent showed that it would have discharged Frank even in the absence of his union activity because of his adamant and persistent refusal to comply with the Respondent's request that he sell new cars after it merged the new and used car departments. Member Hurtgen disagreed with the judge's finding that the General Counsel made out a prima facie case with respect to Frank.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Teamsters Local 140; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, Jan. 18-19, 2000. Adm. Law Judge Michael A. Marcionese issued his decision May 4, 2000.

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Robert F. Kennedy Medical Center, a subsidiary of Catholic Healthcare West (21-CA-33110, 33152; 332 NLRB No. 153) Hawthorne, CA Dec. 20, 2000. The Board agreed with the administrative law judge's finding that the Respondent discharged employees Laurie Neira, Raymona Harvey, and Tonia Babbit for engaging in a concerted protest relating to their employment. When the Respondent decided to outsource the transcription department, the employees wrote a letter on Company stationery seeking assistance from staff physicians in preventing their layoff. [HTML] [PDF]

Chairman Truesdale and Member Hurtgen agreed that the General Counsel carried his Wright Line burden by establishing prima facie that the real reason for the three employees' discharge was their concerted protest about a matter relating to their employment. Finding that the Respondent failed to show that it would have discharged the employees in any event for unprotected activity, they did not pass on the issue of whether the employees' use of Company stationery to set forth their protest was beyond the bounds of Section 7. Assuming that it was, the Chairman and Member Hurtgen found that the Respondent has not shown that it would have fired the employees for that reason even if the letter had not contained the protest. Although the Respondent's handbook forbids use of Company stationery for nonofficial purposes, they noted there was no showing that employees could be discharged for such conduct or that any recipients of the letter reasonably believed that its contents reflected the views of the Respondent.

Member Liebman, agreeing with the result, would not analyze this case under Wright Line, noting that the Respondent conceded that the appeal to the staff physicians was protected concerted activity and that the only issue is whether the use of the Respondent's stationery removed the activity from the Act's protection. She agreed with the judge that using the Respondent's stationery was not so egregious as to deprive them of the Act's protection, citing Felix Industries, 331 NLRB No. 12 (2000).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Service Employees Local 399; complaint alleged violation of Section 8(a)(1). Hearing at Los Angeles, Sept. 27-28, 1999. Adm. Law Judge Mary Miller Cracraft issued her decision Dec. 7, 1999.

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Nichols House Nursing Home (1-RC-21085, 21086; 332 NLRB No. 157) Fairhaven, MA Dec. 15, 2000. A Board majority of Chairman Truesdale and Member Hurtgen, reversing a hearing officer, found that two nurses were eligible voters in a October 26, 1999 election and that their challenged ballots should be opened and counted -- notwithstanding they had been hired for supervisory positions and presented to employees as future supervisors prior to the election. They were to assume their new jobs two weeks after the election. Member Fox, in dissent, agreed with the hearing officer that the challenges to these two ballots should be sustained. She said "the facts demonstrate that these individuals at the time of the election had already become closely aligned with management and therefore lacked a sufficient community of interest with unit employees to be considered eligible voters." [HTML] [PDF]

The majority, however, said the fact that the two nurses were going to assume supervisory positions after the election and that this was announced to unit employees on several occasions during the critical period before the election "should have no bearing on their voting eligibility even if they would no longer possess a community of interest with the unit employees after the critical period."

(Chairman Truesdale and Members Fox and Hurgten participated.)

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Michigan Masonic Home (7-RC-21662; 332 NLRB No. 150) Alma, MI Dec. 15, 2000. Members Fox and Liebman agreed with the Regional Director's finding that the Employer's licensed practical nurses (LPNs) are not supervisors within the meaning of Section 2(11) of the Act, applying the term "supervisor" defined in Section 2(11) as: [HTML] [PDF]

[A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

In this regard, Members Fox and Liebman found that the Employer has not met its burden of establishing that the LPNs perform a supervisory function in disciplining employees.

Member Hurtgen dissented, finding that LPNs can and do make effective recommendations regarding disciplinary action that nurse managers rely on and follow, and that the LPNs have the authority to send employees home from work particularly for performance-based reasons. In his view, the Employer's LPNs' disciplinary authority over the Employer's certified equivalency nursing assistants (CENAs) renders them supervisors under Section 2(11) of the Act.

(Members Fox, Liebman, and Hurtgen participated.)

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Training School at Vineland (4-RC-19575; 332 NLRB No. 15) Vineland, NJ Dec. 15, 2000. The Board affirmed the Regional Director's finding that the Employer's group home managers (GHMs) are not supervisors within the meaning of Section 2(11) of the Act because there is no evidence that GHMs transfer, lay off, recall, promote, or reward the Employer's direct care workers or any other employees. The Employer argues that GHMs are supervisors because they assign, direct, effectively recommend hiring, effectively recommend discipline, evaluate the direct care workers and redress employee grievances. In agreeing with the Regional Director's conclusion that GHMs are not supervisors, the Board determined that the Employer has not met its burden of establishing that GHMs possess any of the claimed statutory supervisory authority. [HTML] [PDF]

The Employer provides residential care and educational programs to developmentally disabled individuals (clients) in group home settings and assigns a GHMs, who is the highest ranking employee on site, to each of its 44 facilities. The Petitioner (Communications Workers of America) seeks to represent a unit consisting of the 44 GHMs.

(Chairman Truesdale and Members Fox and Liebman participated.)

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Stamford Taxi, Inc. (34-CA-7532; 332 NLRB No. 149) Stamford and Greenwich, CT Dec. 15, 2000. Agreeing with the administrative law judge, the Board held that the Respondent's taxicab drivers are employees within the meaning of Section 2(3) of the Act; and that the Respondent unlawfully withdrew recognition from Auto Workers Local 376 as the exclusive collective-bargaining representative of the drivers, refused to hire three drivers upon their individual offers to return to work, and refused to consider for employment other drivers on whose behalf the Union made an unconditional offer to return to work. The drivers had been terminated for refusing to pay the daily train station fee required by their lease agreements. [HTML] [PDF]

In exceptions, the Respondent reiterated its affirmative defense, rejected by the judge, that its duty to bargain was suspended, because the Union condoned the withholding of the fees. The Board, noting that the Respondent did not merely suspend bargaining for the duration of the unprotected conduct, wrote: "Rather, the judge correctly found, that the Respondent 'seized' on the drivers' withholding of fees to withdraw recognition entirely from the Union and engage in direct dealing with its employees." Citing Phelps Dodge Copper Products, 101 NLRB 360 (1952), it explained that the Union's majority status remained unaffected during the course of the unprotected conduct, which did not negate the Respondent's bargaining obligation. The Board affirmed the judge's findings with respect to the refusal-to-hire and refusal-to-consider violations for the reasons set forth by him and because his findings comport with FES, 331 NLRB No. 20 (2000).

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Auto Workers Local 376; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Hartford, Jan. 12-14, Feb. 25-27, and March 17, 1998. Adm. Law Judge Robert T. Snyder issued his decision May 20, 1999.

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St. Mary's Duluth Clinic Health System (18-RC-16399; 332 NLRB No. 154) Duluth, MN Dec. 15, 2000. The Board, in a 3-1 opinion (with Chairman Truesdale and Members Fox and Liebman in the majority and Member Hurtgen dissenting), held that a petition by a nonincumbent union for a residual unit of employees in the healthcare industry may be appropriate pursuant to the Board's Health Care Rule, 29 CFR § 103.30; 284 NLRB 1580-1597 (1987). Thus, at an acute-care hospital where there is a nonconforming bargaining unit consisting of some, but not all, of the employees who would otherwise constitute an appropriate unit under the Board's Health Care Rule, a different union may petition for a separate residual unit of the remaining nonrepresented employees, provided that the petitioned-for unit is an appropriate residual unit. [HTML] [PDF]

At the time the Board promulgated its Health Care Rule, it specifically deferred resolution of questions with regard to the representation of units that are residual to nonconforming units to adjudication of particular cases presenting the issues. The first opportunity was presented in St. John's Hospital, 307 NLRB 767 (1992), in which a union representing an existing nonconforming unit of plumbers and refrigeration employees at an acute-care hospital filed a petition seeking to represent a separate unit of some, but not all, of the remaining skilled maintenance workers at the facility. The Board did not address the question presented here, i.e., whether it will process a petition for a separate residual unit filed by a union other than the union representing the unit to which it is residual.

In the instant decision, although the majority decided that a petition by a nonincumbent union for a residual unit of employees in the healthcare industry is appropriate, it adopted a limited exception:

In cases such as this one where a nonincumbent union petitions for a residual unit, the incumbent union representing the existing nonconforming unit will be entitled, as a matter of course, to place on the election ballot, without having to formally request intervention or demonstrate a showing of interest in the petitioned-for unit, if it so desires. The incumbent union's participation shall be limited to a place on the ballot. If the incumbent union chooses to be included on the ballot, the employees in the unit will have the opportunity to choose (1) to be represented by the petitioning union in a separate unit, (2) to be represented by the incumbent union as part of its unit, or (3) not to be represented. In our view, this limited exception to the Board's intervention rules strikes a proper balance between the policies of stability of existing collective-bargaining relationships and avoidance of undue proliferation of bargaining units in the healthcare industry, by encouraging, but not requiring, the incumbent union to seek to add the residual employees to its existing unit.

The majority overruled the pre-Rule decision in Levine Hospital of Hayward, Inc., 219 NLRB 327 (1975), which held that a nonincumbent union could not appropriately represent a residual unit of employees at an acute-care hospital.

Turning to the facts of this case, the majority concluded, in agreement with the Regional Director, that consistent with St. John's Hospital, the residual unit petitioned-for by the Steelworkers of all unrepresented technical employees at St. Mary's Duluth Clinic Health System is an appropriate residual unit since it includes all of the unrepresented technical employees who are residual to the existing unit (licensed practical nurses (LPNs) represented by the incumbent union, Minnesota Licensed Practical Nurses Association (MLPNA)). Contrary to the Regional Director who denied MLPNA's motion to intervene, the majority concluded that the MLPNA is entitled to participate as an intervenor in the election if it so desires and remanded the case to the Regional Director for further action.

Dissenting Member Hurtgen said that the unit found appropriate by his colleagues is "contrary to Section 103.30(c) of the Board's Rules, inconsistent with Board precedent, and at odds with the congressional admonition against an 'undue proliferation of units' in the heath care industry."

(Chairman Truesdale and Members Fox, Liebman, and Hurtgen participated.)

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Electrical Workers IBEW Local 48 (Kingston Constructors) (36-CB-2052; 332 NLRB No. 161) Portland, OR Dec. 15, 2000. Unlike the administrative law judge who recommended the complaint's dismissal in its entirety, the Board found that the Respondent violated Section 8(b)(1)(A) of the Act by threatening employees with discharge for failing to pay dues under the Union's "market recovery program" (MRP) owing from their employment on Davis-Bacon projects, and that the Respondent did not violate the Act by attempting to collect MRP dues that were based on earnings derived from employment on projects that were not covered by the Davis-Bacon Act. [HTML] [PDF]

The Union established the MRP to subsidize the wage rates paid by union contractors on selected projects so that they would be able to bid jobs on the basis of wage rates lower than the union scale but still be able to pay employees the union rate. The Union would make up the difference out of MRP funds.

The Board agreed with the judge's findings that the framework set forth in Detroit Mailers Local 40, 192 NLRB 951 (1971), is appropriate for determining the lawfulness of MRP dues and that requiring the payment of MRP dues on non-Davis-Bacon projects was not unlawful. The judge found that the Respondent had attempted to collect from employees, including charging party Patrick Mulcahy, MRP dues that were owing from their employment on Davis-Bacon jobs. But, he found that the issue of the lawfulness of requiring the payment of MRP dues on Davis-Bacon projects was not presented in this case and that the General Counsel failed to establish a basis for asserting jurisdiction over any contractor identified in the record whose operations may have been affected by the Union's attempts to collect MRP dues on Davis-Bacon projects. The Board disagreed with the judge on the jurisdiction question, finding that the Davis-Bacon issue is properly before it. On the merits, it found that the Union's attempts to require the payment of MRP dues on Davis-Bacon projects were unlawful under Detroit Mailers.

The Board agreed with the General Counsel that, in light of the decisions of the Department of Labor's Wage Appeals Board and two circuit court decisions, all of which held that the collection of dues for job targeting programs like the Respondent's MRP violated the Davis-Bacon Act, is inimical to public policy under Detroit Mailers. (In the Matter of Building and Construction Trades Unions Job Targeting Programs, WAB Case No. 90-02 (June 13, 1991) WL 494718 (WAB), and Building & Construction Trades Department v. Reich, 40 F,3d 1275 (D.C. Cir. 1994), and Electrical Workers Local 537 v. Brock, 68 F.3d 1194 (9th Cir. 1995)). The Board rejected the contention of the Union and amici that those decisions conflict with, and therefore are preempted by, the NLRA. It held that under Detroit Mailers, payments to support job targeting programs are not "periodic dues" for purposes of Section 8(a)(3) and 8(b)(2) if those payments are based on employment on Davis-Bacon projects, because their forced exaction is "inimical to public policy," and that the Respondent violated Section 8(b)(1)(A) by threatening to have employees discharged if they did not pay MRP dues owing from their employment on Davis-Bacon projects.

The Board found it unnecessary to decide whether Beck objectors can be required to pay MRP dues, noting that the General Counsel has not alleged that Beck issues are involved in this case in any way. Communications Workers v. Beck, 487 U.S. 735 (1988). The Board wrote: "In a proper case, we may be called on to decide whether payments that support job targeting programs, such as the MRP, can be required of Beck objectors. In this case, however, there is no evidence that any employees whom the Union sought to obligate to pay MRP dues under the union-security clause was a Beck objector."

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charge filed by Patrick Mulcahy; complaint alleged violation of Section 8(b)(1)(A) and 8(b)(2). Hearing at Portland, Oct. 21-22, 1997. Adm. Law Judge Timothy D. Nelson issued his decision March 19, 1998.

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CKS Tool & Engineering, Inc. of Bad Axe (7-CA-40332; 332 NLRB No. 162) Bad Axe, MI Dec. 29, 2000. The Respondent violated Section 8(a)(1) of the Act by discharging Randy Wierzbicki, the Board held in agreement with the administrative law judge. The judge found that Wierzbicki's protected activity in raising group concerns at a group meeting called by the Respondent to discuss productivity and efficiency was the sole motivation for his discharge and that the Respondent's proffered reasons of subordination were pretextuous. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Randy Wierzbicki, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Bad Axe on July 14, 1997. Adm. Law Judge Thomas R. Wilks issued his decision Nov. 17, 1998.

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Bell Atlantic Corp. (1-CA-37462; 332 NLRB No. 168) Boston, MA Dec. 29, 2000. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing since June 22, 1999 to bargain with Electrical Workers IBEW Systems Council T-6 by unilaterally implementing a surcharge for the garnishment of employees' wages without first providing the Union with notice and an opportunity to bargain about it. The Board modified the judge's recommended Order to include specific cease-and-desist provisions for the Respondent's unlawful conduct. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Associated Rubber Co. (10-RC-15051; 332 NLRB No. 165) Tallapoosa, GA Dec. 29, 2000. Affirming the hearing officer's report, Chairman Truesdale and Member Liebman overruled the Employer's objections to an election held July 23, 1999, and certified the Steelworkers as the exclusive representative of all production and maintenance employees, truckdrivers, and mechanics employed at the Employer's Plant l, Plant 2, and Plant 3 locations in Tallapoosa, Georgia. Member Hurtgen, dissenting in part, would sustain the objection relating to the conduct of employee Ron Brown and direct a second election. The election resulted in 53 for and 50 against the Union, with one challenged ballot, an insufficient number to affect the results. [HTML] [PDF]

Employee Tim Spears, who did not testify at the hearing, asserted in his affidavit that as he walked by union officials who were handling out union literature outside the plant on July 12, 1999, they tried to give him some literature, but he refused to take any. At that point, according to Spears, employee Brown drove up in his car and told Spears that "you had better take the paper or you're going to pay for it tomorrow." Spears, who was the mill operator, asserted that on the next day Brown ran the Banbury machine, a mixer used to custom-mix rubber compounds, at a faster rate in retaliation for Spears' refusal of union literature the day before.

Chairman Truesdale and Member Liebman agreed with the hearing officer that Brown was not an agent of the Union and that an evaluation of whether his conduct was objectionable must be in accordance with the standard that applies to third party conduct. Applying that standard, they found that the Employer failed to show that Brown's acceleration of the Banbury machine's cycle time was so egregious as to create an atmosphere of fear and reprisal rendering a free election impossible.

Member Hurtgen noted that the Banbury machine's shortened cycle time increased the risk of Spears' injury, that word of the incident was disseminated among other members of the bargaining unit, and that employee Howard testified that he had heard as many as five or six employees, among them Brown, laughing at how Brown had "gotten" Spears. Member Hurtgen wrote: "As the hearing officer correctly found, Brown's conduct was 'more serious than a harmless prank.' Further, it was in retaliation for employee Tim Spears' refusal to accept union literature. It subjected Spears to adverse working conditions and to humiliation before his peers." In view of the fact that the election was decided by only three votes and the incident became a joke within the unit, he found that there was sufficient dissemination to affect the results of the election.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Electrical Workers IBEW Systems Council T-6; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston on June 5, 2000. Adm. Law Judge Jerry M. Hermele issued his decision Aug. 17, 2000.

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Textile Processors (Mission Uniform Services) (28-CB-3832, 3855; 332 NLRB No. 143) Las Vegas, NV Dec. 15, 2000. The Board, reversing the administrative law judge, dismissed a Section 8(b)(1)(A) complaint that the Respondent Union unlawfully refused to accept long-time dissident member Pollack's dues tender in February 1993, after she no longer worked for a signatory employer. Citing Teamsters Local 579 (Janesville Auto Transport), 310 NLRB 975 (1993), the judge concluded that the Respondent's rationale for rejecting Pollack's dues tender was a sham in retaliation for her internal union activities. [HTML] [PDF]

The Board, however, applying Sandia National Laboratories, 331 NLRB No. 193, concluded the Respondent's conduct did not invoke the proscriptions of Section 8(b)(1)(A):

Pollack's inability to make dues payments during periods in which she has not worked for a signatory employer does not affect her future employment opportunities, or otherwise adversely affect her conditions of employment. Pollack has lost her membership privileges and cannot run for union office, but these are strictly internal union matters.

Member Hurtgen, concurring, noted a violation could be based on the Scofield tests. Scofield v. NLRB, 394 U.S. 423 (1969). He said the Respondent's conduct might be contrary to Labor-Management Reporting and Disclosure Act principles and it may not have been pursuant to a union rule.

(Chairman Truesdale and Members Fox, Liebman, and Hurtgen participated.)

Charges filed by Suzanne J. Pollack, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Las Vegas, July 10-13, and Sept. 19, 1995. Adm. Law Judge Burton Litvack issued his decision April 26, 1996.

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Corporate Express Delivery Systems (17-CA-20076; 332 NLRB No. 144) Oklahoma City, OK Dec. 19, 2000. The Board agreed with the administrative law judge's finding that Respondent violated Section 8(a)(3 and (1) of the Act by discharging owner-operators Hildegard Kirk, Edwin Kirk and Joseph Bennett and issuing a written warning to company driver Thomas McHargue. Applying Roadway Package System, 326 NLRB 842 (1998), the Board found that owner-operators are employees and not independent contractors as contended by Respondent. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Teamsters Local 886; complaint alleged violations of Sections 8(a)(1) and (3). Hearing at Oklahoma City, OK May 26-27, 2000. Adm. Law Judge Pargen Robertson issued his decision Sept. 15, 1999.

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Tim Foley Plumbing Service (25-CA-25662, 25730, 25-RC-9699; 332 NLRB No. 158) Muncie, IN Dec.15, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider six applicants who filled out applications en masse at its offices on August 22, 1997, but it remanded the allegation for further consideration because his analysis did not comply with the framework set forth in FES, 331 NLRB No. 20 (2000). The judge's finding that the six applicants were unlawfully denied consideration comports with the FES standard and remand was unnecessary. Although the Board agreed with the judge that the violations committed by the Respondent and its agents during the union campaign warranted setting aside the election, it did not order a second election. Rather, it directed the judge to reconsider the propriety of a Gissel bargaining order in light of its decision and his findings on remand. [HTML] [PDF]

The judge found that the Respondent, through Kenneth Harper, violated Section 8(a)(1) in certain respects. The Respondent excepted only to his finding that Harper is a statutory supervisor and that his actions can be imputed to the Respondent. The Board did not pass on the supervisory status issue, finding that Harper's actions can be imputed to the Respondent on the ground that he, as an admitted "extension of [company owner] Foley," was an agent of the Respondent. The Board found that the Respondent further violated Section 8(a)(1) through Harper's statements to employees on two separate occasions on August 18, 1997. It did not supply an additional remedy for the threats as they are encompassed in the threat to reduce wages and other benefits already remedied. The Board agreed with the judge that the Respondent's agent, Stephen LePage did not threaten employees with loss of benefits by telling them that if the Union won the election he would caution the Respondent not to give loans to employees without bargaining with the Union. In view of the remand, the Board will not issue a final Order pending the judge's supplemental decision.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed by Plumbers Local 661; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Muncie, May 18-21 and June 1-3, 1998. Adm. Law Judge Arthur J. Amchan issued his decision Aug. 3, 1998.

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VFL Technology Corp. (9-RC-16740; et al.; 332 NLRB No. 159) Moscow, OH Dec. 15, 2000. Chairman Truesdale and Members Fox and Liebman, with Member Hurtgen dissenting, denied the Employer's request for review of the Regional Director's supplemental decision finding that the incumbent United Steelworkers of America (USWA) has validly disclaimed interest in representing the Respondent's employees, and that the USWA's contract with the Employer did not bar the petitions filed by Teamsters Local 100, Operating Engineers Local 18, and Laborers Local 265 (the Petitioners). [HTML] [PDF]

In an earlier decision, VFL Technology Corp., 329 NLRB No. 49 (1999), the Board found that the contract between the Employer and the USWA was a 9(a) contract which would bar the petitions unless the Steelworkers' disclaimer of interest in representing the Employer's employees was effective. The case was remanded to the Regional Director for further evidence regarding the effectiveness of the disclaimer. In the instant Order Denying Review of the Regional Director's supplemental decision, the majority wrote:

We find the USWA's disclaimer of interest was clear and unequivocal, and expressly stated not only the USWA's intention to cease and desist from currently representing the Employer's employees, but also renounced any future representational interest. Although the Employer argued that the USWA had acted in a manner inconsistent with its disclaimer, thereby rendering the disclaimer ineffective, we agree with the Regional Director for the reasons he stated that the few arguably inconsistent postdisclaimer actions do not negate the effectiveness of the USWA's clear and unequivocal disclaimer of interest.

Our dissenting colleague argues that because the USWA disclaimed only after the Petitioners prevailed in the 'no-raid' procedures under article XX of the AFL-CIO's constitution, the disclaimer cannot be effective as the Board will not allow a union's no-raiding agreement to be used to supercede a binding collective-bargaining agreement, relying on Mack Trucks, Inc., 209 NLRB 1003 (1974). According to our dissenting colleague, as there is no evidence that the incumbent USWA is either defunct or unable to administer the extant contract, to give effect to the USWA's disclaimer would permit a vital labor organization to disavow its lawful contractual obligations. We cannot agree that Mack Trucks should be read so broadly.

(Chairman Truesdale and Members Fox, Liebman, and Hurtgen participated.)

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(Chairman Truesdale and Members Fox and Liebman participated.)

Adm. Law Judge William J. Schmidt issued his supplemental decision Sept. 29, 2000.

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Westside Painting, Inc. (36-CA-8067; 332 NLRB No. 148) Portland, OR Dec. 19, 2000. In a Supplemental Decision and Order, the Board upheld the administrative law judge's supplemental decision finding that the Respondent had violated the Act by unlawfully interrogating applicant Shawn Cotto about his union sympathies in the course of a August 18, 1997 interview and refused to hire him after Cotto expressed prounion sympathies. The Board issued a decision on June 24, 1999 remanding the case to the judge because he had permitted the General Counsel to take telephone testimony from Cotto in violation of the Board's rules. See Westside Painting, Inc., 328 NLRB No. 110 (1999). [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Adm. Law Judge William J. Schmidt issued his supplemental decision Sept. 30, 1999.

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"Although the act of sending Starnes home may have been something short of a formal 'discharge', we find, on this record, that the lawfulness of that incident is properly before us for consideration," the majority held.

Dissenting in part, Member Hurtgen said the General Counsel's complaint only alleged that the Respondent's discharge of Starnes was unlawful, not that the antecedent act of sending him home was unlawful. Accordingly, he would not find a violation, as the majority did, on that issue.

(Members Fox, Liebman, and Hurtgen participated.)

Charges filed Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1), and (3). Hearing at Ft. Wayne on May 21, 1998. Admin. Law Judge Jerry M. Hermele issued his decision Aug. 17, 1998.

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Paul Mueller Company (17-CA-17623; 332 NLRB No. 145) Springfield, MO Dec. 14, 2000. In a Supplemental Decision and Order, the Board reversed the administrative law judge's finding that the Respondent's delayed reinstatement of 89 former unfair labor practice strikers was unlawful (see 332 NLRB No. 29). Upon reviewing evidence of the parties' understanding of the scope of the complaint allegations, the Board concluded the judge's reliance on the General Counsel's "narrow theory of violation"--namely, that when the Respondent reinstated certain former unfair labor strikers, it unlawfully failed to return them to their former positions--denied the Respondent due process. It noted that "[h]is representations on the record reasonably led the Respondent to believe that it would not have to defend any delay in reinstating former unfair labor practice strikers." [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

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(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Teamsters Local 385; complaint alleged violation of Section 8(a)(1). Hearing at Orlando on March 12, 1999. Adm. Law Judge Richard H. Beddow, Jr. issued his decision June 4, 1999.

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Longshoremen ILA Local 1575 (Navieras, NPR, Inc.) (24-CB-1892; 332 NLRB No. 139) Puerto Nuevo, PR Nov. 30, 2000. The Board dismissed the complaint in its entirety, disagreeing with the administrative law judge's finding that the Respondent breached its duty of fair representation and thereby violated Section 8(b)(1)(A) of the Act by using its members' expression of disapproval as a basis for declaring that the members had ratified a new collective-bargaining agreement. No exceptions were filed to the judge's dismissal of complaint allegations that the Respondent violated the Act by curtailing discussion of a new contractual provision and failing to allow its members to vote on the provision separately from a vote on the entire collective-bargaining agreement. [HTML] [PDF]

The Respondent and the Employer in 1997 negotiated a new collective-bargaining agreement to succeed their previous contract. At a union meeting to obtain ratification of the new contract, approximately 80 percent of the attending membership expressed dissatisfaction with a new contractual provision by standing up from their seats in protest. When that occurred, the Union president announced that all those in favor of ratifying the new contract should stand up. He then announced that the contract had been ratified on the basis of the members who had, in fact, been standing in protest. The Union and the Employer subsequently executed the agreement.

The Board wrote in finding that there was no violation of the duty of fair representation in the Union's method of counting votes for and against ratification:

There is no contention here that the Union and the Employer agreed that employee ratification was a condition precedent to forming the collective-bargaining agreement. Therefore, a vote of the membership was not necessary to the formation of a collective-bargaining agreement between the Employer and the Union. Although the manner in which the Union conducted the ratification vote does not garner our sympathy, nonetheless as a matter of law that conduct, being purely an internal union affair, does not come within the duty of fair representation. Rather, the decision as to whether ratification occurred was within the Union's exclusive domain and control, and therefore the ratification process was purely advisory.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by William De Jesus Ferrer, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at San Juan on Nov. 18, 1998. Adm. Law Judge Arthur J. Amchan issued his decision Feb. 3, 1999.

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(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Sommer Awning Co. (25-CA-25562-1, et al.; 332 NLRB No. 136) Indianapolis, IN Nov. 30, 2000. The Board, concluding that under FES, 331 NLRB No. 20, the evidence established a refusal-to-hire violation, agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire 20 applicants for employment because they participated in Sheet Metal Local 20's organizing program or because of their union affiliation. It found that the General Counsel met his burden of establishing the necessary elements of an unlawful refusal to hire under the FES framework and that the Respondent failed to meet its Wright Line burden of showing that it would not have hired the discriminatees even in the absence of their union activity. The Board found it unnecessary to decide whether the Respondent also violated the Act by refusing to consider the applicants because the remedy for such a violation would be subsumed within the broader remedy for the refusal-to-hire violation. [HTML] [PDF]

Based on the parties' stipulation, the Board noted that the Respondent was hiring at the time of the alleged unlawful conduct, that the discriminatees had the experience or training relevant to the requirements of the positions for hire, and that the Respondent's animus is established by the stipulation that it refused to hire the discriminatees because of their participation in the Union's organizing program. The Board in June 200 invited the parties to file supplemental briefs addressing the FES framework as it applied to this case.

Member Hurtgen agreed with the judge that the 20 overt union applicants are not temporary employees, but he would find that the judge erred in concluding that the applicants, who were participants in the Union's Youth-to-Youth organizing campaign, would continue to work for the Respondent beyond 6 months. The Youth-to-Youth program involves 6-month leaves of absence to organize nonunion employers. Member Hurtgen would find that the terms of the program should be considered in determining backpay for these discriminatees.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1) (3). Hearing at Indianapolis, Aug. 24-25, 1998. Adm. Law Judge C. Richard Miserendino issued his decision Nov. 30, 1998.

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Burtman Iron Works (1-CA-36724; 332 NLRB No. 137) Readville, MA Nov. 30, 2000. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to execute the collective-bargaining agreement it reached with Iron Workers Local 501 on August 13, 1998. The Board entered a cease-and-desist order and ordered the Respondent to execute the agreement and to make employees whole for any losses of earnings and benefits from the effective date of the contract. If the agreement provides for contributions to pension and benefit funds, the Respondent shall make all contractually-required contributions to the funds that it has failed to make since the effective date of the agreement and reimburse unit employees for any expenses ensuing from the failure to make the required contributions. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Iron Workers Local 501; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston on Aug. 18, 1999. Adm. Law Judge Jerry M. Hermele issued his decision Oct. 29, 1999.

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The issues raised on review are whether the Regional Director erred in finding (1) a unit of hotel housekeeping, food and beverage, and maintenance employees, excluding front office employees, to be appropriate; and (2) that the inclusion in the unit of jointly employed employees supplied by two supplier employers was not required. In denying review of the Regional Director's finding that inclusion of the jointly employed employees is not required, the Board did not pass on the issue of whether a unit that encompasses both the solely employed employees and jointly employed employees also would be appropriate under a community-of-interest analysis, or the Regional Director's conclusion that the jointly employed employees may constitute a separate appropriate unit. Agreeing with the Regional Director that the unit is appropriate even if it excludes the jointly employed employees, the Board stressed that the Petitioner is seeking to represent employees solely employed by the Employer, and thus is seeking to bargain only with the Employer, and not the supplier employers.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

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Transportes Hispanos, Inc. (13-CA-38073; 332 NLRB No. 115) Chicago, IL Nov. 16, 2000. The Board agreed with the administrative law judge that Robin Gilliland was the Respondent's agent at the time she made recommendations regarding the hiring of employees who worked for the Respondent's predecessor (Ryder Student Transportation Services, Inc.); and that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire job applicants Frank Heiser, Blanca Jimenez, Oscar Quigley, and Lynne Tolliver because of their union and other protected concerted activities, or to discourage employees from engaging in such activities. [HTML] [PDF]

The Respondent's owner Gardunio and general manager Oliveras gave Gilliland, a supervisor for Ryder, sole discretion in determining which Ryder employees should be hired for its new operations. Oliveras informed Gilliland that the Respondent wanted to hire all but four Ryder employees and for her to choose based on a set of general criteria. A few days after Gilliland recommended that the four alleged discriminatees not be hired, the Respondent hired her to continue working in a position similar to the one that she held at Ryder.

The Board decided that the Respondent vested Gilliland with actual authority to recommend the applicants whom the Respondent would hire. By delegating this authority to her, the Respondent made Gilliland its agent with respect to her hiring recommendations, it held, citing Weco Cleaning Specialists, Inc., 308 NLRB 310 (1992).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Teamsters Local 142; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago, July 26-27, 2000. Adm. Law Judge Keltner W. Locke issued his decision Sept. 6, 2000.

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Condea Vista Co., Lake Charles Chemical Complex (15-CA-15219; 332 NLRB No. 117) Lake Charles, LA Nov. 16, 2000. The Board held that the Respondent violated Section 8(a)(5), (4), (3), and (1) of the Act by refusing to bargain with the Union regarding the Respondent's policy of granting unlimited unpaid leave for certain employees to conduct union business outside the plant and threatening its employees with change of and terminating the policy because they engaged in protected union activity and/or filed unfair labor practices charges. [HTML] [PDF]

In concluding that the Respondent's termination of unpaid leave for employees' off-premises union activity violated Section 8(a)(4), as well as 8(a)(5), (3), and (1), the Board found merit in a General Counsel exception. It noted that the complaint alleged that the Respondent's actions violated Section 8(a)(4), and that the allegation was fully litigated. The administrative law judge found that Respondent's human resources director Glackin told union international representative Glackin that unpaid leave for union-related business had been canceled because local union president Appleby had been using this leave to prepare "frivolous complaints with the NLRB," and there was no evidence of frivolous complaints.

Member Hurtgen did not pass on the issue of whether the Respondent's termination of the policy was unlawful under Section 8(a)(5), noting his agreement that it was unlawful under Section 8(a)(3) and (4) and that a Section 8(a)(5) conclusion would not materially alter the remedy.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charge filed by the Paper, Allied-Industrial, Chemical, & Energy Workers Union No. 4-555; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Lake Charles on Jan. 26, 2000. Adm. Law Judge Pargen Robertson issued his decision April 5, 2000.

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Grinnell Fire Protection Systems Company (5-CA-28153, 28440; 332 NLRB No. 120) Exeter, NH Nov. 15, 2000. Members Fox and Liebman agreed with the administrative law judge that the information requested was presumptively relevant and that the Respondent violated Section 8(a)(5) by refusing to provide Plumbers Local 669 with the names and addresses of replacement employees in the bargaining unit represented by the Union, which has been on strike against the Respondent since April 1994. The majority agreed also that the appropriate remedy is to require the Respondent to provide the information. Member Hurtgen, dissenting, would remand the case to the judge for further findings concerning whether there was any valid basis for the Union's request and fashioning a remedy for any violation that he may find. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

Charges filed by Plumbers Local 669; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Washington, D.C. on Nov. 18, 1999. Adm. Law Judge Karl H. Buschmann issued his decision Feb. 8, 2000.

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Electrical Workers (IBEW) Local 98 (NFF Construction, Inc.) (4-CD-1022, 1024; 332 NLRB No. 121) Pleasantville, NJ Nov. 15, 2000. The Board decided that employees of NFF Construction, Inc. represented by Carpenters Metropolitan Regional Council of Philadelphia and Vicinity are entitled to perform the work of unloading and installing minibars and microwaves at the Hilton Garden Inn in Philadelphia, and the unloading and installing of televisions, minibars, and swing arm lamps at the Ritz Carlton Hotel in Philadelphia. In making the award, the Board relied on the terms of the collective-bargaining agreement between NFF Construction and the Carpenters, the Employer's preference and past practice, area and industry practice, and the economy and efficiency of the Employer's operation resulting from its assignment of furniture, fixtures, and equipment work to the Carpenters. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Lawson Mardon U.S.A., Inc. (9-RC-17222; 332 NLRB No. 122) Shelbyville, KY Nov. 16, 2000. The Board affirmed the Regional Director's finding that the petitioned-for unit of production employees employed by Lawson Mardon U.S.A., Inc. (the Employer), excluding production employees employed by Pharma Center Shelby, Inc. (a single employer with the Employer), and the Employer's maintenance employees, is an appropriate unit for bargaining. It also agreed with the Regional Director that the evidence is insufficient to compel the inclusion of the maintenance employees. See Capri-Sun, Inc., 330 NLRB No. 158 (2000) (noting Board's longstanding policy to find petitioned-for maintenance units where maintenance employees have requisite community of interest and there is no history of bargaining on more comprehensive basis). Here, the Board found, as did the Regional Director, that the petitioned-for unit enjoys a separate community of interest from Pharma Center employees. It found it unnecessary to reach the issue of whether the Regional Director properly applied the single-facility presumption in finding the petitioned-for production unit to be appropriate. Graphic Communications Local 619M is the petitioning union. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

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Electrical Workers (IBEW) Local 3 (Genmar Electrical Contracting, Inc.) (29-CP-622; 332 NLRB No. 123) New York, NY Nov. 16, 2000. Affirming the administrative law judge, the Board held that the Respondent violated Section 8(b)(7)(A) of the Act by picketing Genmar Electrical Contracting at its jobsite in Staten Island, New York in order to force or require Genmar to recognize or bargain with the Respondent as the bargaining representative of its electricians or to force or require the electricians to accept the Respondent as their bargaining representative, at a time when Genmar had lawfully recognized another union. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Genmar Electrical Contracting, Inc.; complaint alleged violation of Section 8(b)(7)(A). Hearing at Brooklyn, April 26-27, 1999. Adm. Law Judge Karl H. Buschmann issued his decision Nov. 12, 1999.

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Laborers Local 1184 (Nicholson Rodio West Dam Joint Venture) (21-CB-12273; 332 NLRB No. 124) Winchester, CA Nov. 17, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing Nicholson Rodio West Dam Joint Venture not to hire Jesse Lara, noting that the Respondent does not contend that its interference with Lara's employment was pursuant to a valid union-security clause or was necessary to the effective performance of its representative functions. See Stage Employees Local 720 (AVW Audio Visuals), 332 NLRB No. 3 (2000). In addition to the judge's remedies, the Board ordered the Union to inform the Employer that it has no objection to the employment of Lara and to request that he be hired. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Jesse Lara; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Los Angeles, Dec. 3, 1997 and Jan. 26-27 and April 27, 1998. Adm. Law Judge Frederick C. Herzog issued his decision Sept. 29, 1998.

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Teamsters Local 247 (Rymco, Inc.) (7-CC-1715; 332 NLRB No. 114) Detroit, MI Nov. 8, 2000. The Board affirmed the administrative law judge's finding that the Respondent Union unlawfully threatened Rymco, Inc., a nonunion employer, with the shutdown of operations of a John Carlo, Inc. jobsite it was working on. The Union claimed it never threatened Rymco. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Rymco, Inc.; complaint alleged violation of Section 8(b)(4)(ii)(B). Hearing at Detroit, Sept. 28, 1999. Adm. Law Judge Jerry M. Hermele issued his decision Dec. 13, 1999.

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Teamsters Local 295 (Emery Worldwide) (29-CD-509; 332 NLRB No. 105) Springfield Gardens, NY Oct. 31, 2000. In this Section 10(k) proceeding, the Board ordered the notice of hearing quashed upon determining Teamsters Local 295 and Teamsters Local 478 no longer had competing claims for the same work. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

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The Permanente Medical Group, Inc. (32-CA-15032, 15084; 332 NLRB No. 106) Oakland, CA Oct. 31, 2000. Affirming the administrative law judge, the majority of Chairman Truesdale and Member Hurtgen concluded the Respondents did not deal directly with unit employees concerning mandatory subjects of bargaining during the design phase and subsequent phases of a "member focused care" (MFC) project in violation of the Act. MFC, which the Respondent developed with a consulting firm, sought to increase patient and family involvement in health care and to reorganize care management. The unions expressed concerns to the Respondent that they believed the real purpose of MFC was to assign nurses' duties to other nonlicensed personnel, thereby transferring work out of the unit. In dismissing the complaint, the majority stated: [HTML] [PDF]

Although the Respondent communicated with its employees, that discussion was not for the purpose of establishing or changing terms and conditions of employment or undercutting any Union efforts to negotiate. The record emphatically demonstrates that throughout the process of developing and refining its MFC model, the Respondent never excluded the Unions. To the contrary the Respondent kept the Unions informed before and during the design phase. And, most importantly, Respondent made it clear that the design phase would ultimately yield only a proposal to be presented to the Unions for bargaining. With respect to this last aspect the Respondent reiterated its commitment to bargain.

In dissent, Member Fox would have found a violation of "direct dealing" in the design phase of MFC. She stated:

As the employer in Du Pont did with the ongoing fitness and safety committees, Respondents effectively, though perhaps more subtly, used the design teams as an alternative employee representative to pitch MFC to employees, monitor and influence those employees' feelings about MFC, and, ultimately, to work out the basic structure of an MFC program with those employees prior to any bargaining with the Unions.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Engineers and Scientists Local 20, (IFPTE) and California Nurses Association; complaint alleged violation of Section 8(a)(1) and (5). Hearing held June 11-12, 1996. Adm. Law Judge Mary Miller Cracraft issued her decision Dec. 19, 1996.

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SEIU Local 254 (Brandeis University) (1-CB-8835; 332 NLRB No. 103) Boston, MA Oct. 31, 2000. Reversing the administrative law judge, the Board majority of Chairman Truesdale and Member Fox concluded Respondent Union did not violate the Act when it removed Jorge Luis Santana from his union representative position on the contractually created labor-management committee. In dissent, Member Hurtgen contended that the Union had no "legitimate interest" in removing Santana from his elected position: The judge dismissed a similar allegation involving the Union's removal of Santana from his shop stewart position. The majority stated the removals were lawful because "the Union's legitimate interest in ensuring the undivided loyalty of union representatives who deal with the Employer about working conditions outweighs Santana's Section 7 rights and thus the removals do not constitute an unlawful restraint on those rights." [HTML] [PDF]

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charge filed by Jorge Luis Santana, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Boston, May 27, 1997. Adm. Law Judge Martin J. Linsky issued his decision Aug. 29, 1997.

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Steelworkers Local 1870 (Newport Steel Corp.) (9-CB-9743; 332 NLRB No. 92) Newport, KY Oct. 31, 2000. The Board found merit in the Respondent Union's exception to the administrative law judge's order that the Union make the Charging Party Jerry Davidson whole for the 8 hours of pay he lost as a result of his suspension imposed by the Employer and the Union's failure to process Davidson's grievance. The Board said the judge had failed to follow the criteria set forth in Iron Workers Local 377 (California Iron Workers Employers Council), 326 NLRB 375, (1998), for the imposition of a make-whole remedy on a union in cases involving the unlawful failure to process a grievance. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

Charge filed by Jerry Davidson, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Cincinnati, OH, Aug. 3, 1998. Adm. Law Judge John H. West issued his decision Sept. 23, 1998.

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Dupont Dow Elastomers L.L.C. (9-CA-34028, 33536; 332 NLRB No. 98) Deepwater, NJ Oct. 31, 2000. The Board, disagreeing with the administrative law judge, found that Respondent DDE was a "perfectly clear" successor under Burns as interpreted in Spruce Up Corp., 209 NLRB 194 (1994), and that it unlawfully failed to bargain prior to setting unit employees' initial terms and conditions of employment. However, the Board affirmed the judge's finding that there is insufficient evidence of common ownership and control or that DDE was formed to aid DuPont in evading its obligations under the Act to conclude that DDE and DuPont are alter egos. The complaint alleged that Respondents DuPont and joint venture DDE are alter ego companies. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed by International Brotherhood of Dupont Workers and Neoprene Craftsmen Local 788; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Louisville, Jan. 7-9, 1997, and Wilmington, DE, Jan. 27-30, 1997. Adm. Law Judge Irwin H. Socoloff issued his decision Dec. 17, 1997.

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Tradesmen International, Inc. (8-CA-29079; 332 NLRB No. 107) Lorain, OH Oct. 31, 2000. Reversing the administrative law judge's dismissal of the complaint, Chairman Truesdale and Members Fox and Liebman held that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire Matthew Oakes on and after May 30, 1997, because of his protected concerted activity in testifying before the Lorain Board of Building Standards (the Lorain Board). Member Hurtgen, dissenting, found that Oakes' activities were unprotected because they were not related to terms and conditions of employment and that the Respondent's failure to employ him for that activity was not unlawful. He found Oakes' efforts were an attempt to cause economic harm to an employer because its employees had not chosen to unionize. [HTML] [PDF]

In early 1997, Oakes, a union organizer, learned that the Respondent's employees were working on a hospital project in Lorain, Ohio for Bay Mechanical and Electrical, Inc. (Bay), a nonunion construction company in Lorain. He began soliciting the employees to sign union authorization cards and he completed an employment application in which he disclosed his full-time position as an organizer of nonunion companies. In May 1997, Oakes provided Jack Murphy, the city of Lorain's chief building inspector, with a list of three subcontractors, including the Respondent, whom Oakes believed were not in compliance with the city's bonding ordinance. Murphy ordered all the Respondent's employees off the Lorain hospital site. The Lorain Board of Building Standards and Appeals stayed the order and held a hearing regarding whether the Respondent was a subcontractor within the meaning of the city's bonding ordinance. At the hearing, Oakes presented the reasons why the Union believed that the Respondent was a subcontractor on the Lorain hospital project and, therefore, was required to post a bond in accordance with the city ordinance.

(Chairman Truesdale and Members Fox, Liebman, and Hurtgen participated.)

Charge filed by Sheet Metal Workers Local 33; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cleveland on Oct. 20, 1998. Adm. Law Judge Jerry M. Hermele issued his decision March 11, 1999.

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Computer Associates International, Inc. (29-CA-17315; 332 NLRB No. 108) Islandia, NY Oct. 31, 2000. Affirming the administrative law judge's finding that the Respondent is a joint employer of the building engineers supplied by Cushman & Wakefield of Long Island, Inc. to work at its Islandia, New York facility, the Board relied particularly on the Respondent's substantial role in the selection of applicants for hire and the ongoing, close and substantial supervision of those employees by the Respondent's managers. It modified the judge's supplemental decision to "make clear" that it is the responsibility of Computer Associates to remedy the unfair labor practices, and that the right of the displaced employees to remedy is not dependent on any particular action of Cushman & Wakefield. Member Hurtgen noted that the underlying unfair labor practice allegations in this proceeding are res judicata. See Computer Associates International, 324 NLRB 285 (1997). [HTML] [PDF]

In the prior decision, the Board affirmed the judge's findings that Respondent Computer Associates violated Section 8(a)(1) of the Act through various interrogations, promises, threats, and warnings related to the union membership of union-represented operating engineers working at its facility. It reversed the judge's finding that the Respondent violated Section 8(a)(3) and (1) by terminating its contract with Cushman & Wakefield because of Operating Engineers Local 30's attempt to organize Computer Associates' employees, resulting in the discharge of nine union-represented employees. Citing Esmark, 315 NLRB 763 (1994), the judge found it appropriate to hold Computer Associates alone liable under the Act irrespective of its joint employer status. The Board found Esmark is not applicable and remanded to the judge. It noted that if Computer Associates was a joint-employer with Cushman & Wakefield of the Cushman-furnished employees, then liability under Section 8(a)(3) might be established.

(Members Fox, Liebman, and Hurtgen participated.)

Adm. Law Judge Howard Edelman issued his supplemental decision June 4, 1998.

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H.B. Zachry Co. (26-CA-16466; 332 NLRB No. 110) Vicksburg, MS Oct. 31, 2000. Chairman Truesdale and Member Fox affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by various statements made by certain of its supervisors; and violated Section 8(a)(3) and (1) by failing and refusing to hire union supporters Gary Greer, James Hill, and Mike Mapp and laying off Joe Holloway, Robert Bolin, Tommy Dearing and three other crew members. Citing FES (A Division of Thermo Power), 331 NLRB No. 20, Chairman Truesdale and Member Fox addressed at further length the refusal-to-hire allegations involving Greer, Hill, and Mapp, and the allegation that the Respondent's layoffs were discriminatory. They remanded to the judge issues relating to the Respondent's alleged discriminatory failure to hire union supporters Thomas Butler, William Reynolds, and paid union organizer Sammy Yelverton because the record is unclear as to whether the General Counsel established whether they had the necessary training and/or experience to meet the announced or generally known requirements of the job openings. [HTML] [PDF]

Member Hurtgen, concurring, wrote separately to explain more fully why he concluded that the partial remand is necessary.

The Board in 1996 remanded the proceeding to the judge for further consideration. The judge issued a supplemental decision in 1997. On June 14, 2000, the Board invited the parties to file supplemental briefs addressing the FES framework as it applies to this case.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Adm. Law Judge Lawrence Cullen issued his supplemental decision Nov. 12, 1997.

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Electrical Workers (IBEW) Local 494 and the Electrical Workers International, Sixth District (Gerald Nell, Inc.) (30-CB-4127, 4128; 332 NLRB No. 112) Waukesha, WI Oct. 31, 2000. Members Fox and Liebman affirmed the administrative law judge's finding that Joseph Podewils' efforts to resign his union membership were insufficient to constitute an effective resignation and dismissed the 8(b)(1)(A) allegations that the Respondents disciplined Podewils when he was no longer a union member. They found, contrary to the judge, that Respondent Local 494 did not violate Section 8(b)(1)(B) by restraining and coercing Gerald Nell, Inc. (Nell), a nonunion electrical contractor, in the selection of its representatives for the purposes of collective-bargaining and grievance adjustment by processing union disciplinary charges against, disciplining, and fining Podewils. The evidence is insufficient to establish that Local 494 was actively seeking a bargaining relationship with Nell within the meaning of NLRB v. Electrical Workers IBEW Local 340 (Royal Electric), 481 U.S. 573, 591 (1987), Members Fox and Liebman held. [HTML] [PDF]

Member Hurtgen, dissenting in part, would affirm the judge's conclusion that Local 494 violated Section 8(b)(1)(B). He agreed with the judge that the Respondent (1) was seeking to organize Nell's employees (i.e., seeking to establish a collective-bargaining relationship; (2) was seeking to use Podewils as its organizer; and (3) disciplined Podewils because he refused to do so. "Accordingly, the requirement of Royal Electric (a union has, or is seeking, a bargaining relationship) thus is satisfied," Member Hurtgen said.

In October 1997, Nell hired Podewils as its electrical division manager. Although Nell informed Podewils that he would have to resign his union membership in Local 494, Podewils failed to take adequate steps to effectuate his resignation. On December 1, 1997, Local 494 business representative Burzynski appeared at the offices of Nell after receiving a tip that Podewils was employed by a nonunion contractor. During a brief conversation with Podewils, he asked "what would be the opportunity of [Podewils] working to organize the company." Podewils replied, "that wouldn't happen here . . . that wouldn't be an option." Burzynski then gave Podewils his business card. Local 494 made no effects to circulate authorization cards to any employees of Nell; it did not engage in any picketing or handbillling of Nell; nor did it make any efforts to establish a collective-bargaining relationship with Nell. On December 15, 1997, Local 494 filed intraunion disciplinary charges against Podewils alleging that he was working for a nonunion company in violation of the union's constitution. The Union later found Podewils guilty and fined him $100,000. On appeal, the International Union sustained the violations found, but it reduced the fine to $10,000.

(Members Fox, Liebman, and Hurtgen participated.)

Charges filed by Jospeh Podewils and Gerald Nell, Inc.; complaint alleged violation of Section 8(b)(1)(A) and (B). Hearing at Milwaukee on April 22, 1999. Adm. Law Judge Benjamin Schlesinger issued his decision July 30, 1999.

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Beth Abraham Health Services (2-CA-31830; 332 NLRB No. 113) Bronx, NY Nov. 8, 2000. The Board, agreeing with the administrative law judge that the Union satisfied its burden of establishing the relevance of the information it requested from the Respondent, found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide the information. 1199 National Health and Human Services Employees, in seeking a contract for a unit of employees at Schnumacher Nursing Home, contacted Beth Israel Medical Center (BIMC), in the belief that it owned Schnumacher. BIMC referred the Union to the Respondent, stating that the Respondent wholly manages Schnumacher and that BIMC had transferred ownership of Schnumacher to Bethco Corporation, an affiliate of the Respondent. The Union thereafter commissioned research into the transfer, leading it to doubt whether a bona fide transfer had occurred, and making it unsure which entity in fact owned Schnurmacher. By letter dated October 2, 1998. The Union requested information from the Respondent regarding the terms of the transfer to determine Schmurmacher's ownership. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by 1199 National Health and Human Services Employees; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on Oct. 19, 1999. Adm. Law Judge Steven Davis issued his decision Jan. 18, 2000.

* * *

Because questions are often raised regarding the effect of such a vacatur, however, we wish to make clear the significance we attribute to an order to vacate when granted, as here, pursuant to an settlement, rather than as the result of a determination on the merits that the vacated decision was in error In the case of the latter, the vacated decision is eliminated for all purposes, including precedential effect. When we vacate a decision pursuant to a settlement, however, unless we indicate otherwise in our order vacating, it is vacated only insofar as there is no longer a court-enforceable order in the case and the decision has no preclusive effect on the parties (i.e., it will have no res judicata or collateral estoppel effect against the parties). Likewise, because the Board's findings of fact and conclusions of law with respect to the parties have been vacated, those findings and conclusions may not be used to establish a proclivity to violate the Act, unless, of course, the parties to the settlement agree that they may be so used. There will remain a published decision in the case, and that decision may be cited as controlling precedent with respect to the legal analysis therein. See Service Employees Local 87 (Cresleigh Management), 324 NLRB 774, 775 fn. 3 (1997), where the Board majority cited and overruled Highland Yarn Mills, 310 NLRB 644 (1993), which was vacated as moot at 315 NLRB 1169 (1994), following a non-Board settlement. We follow this policy because we agree with the United States Court of Appeals for the Seventh Circuit that a judicial tribunal 'ought not allow the social value of [a] precedent, created at cost to the public and other litigants, to be a bargaining chip in the process of settlement.' Matter of Memorial Hospital of Iowa County, 862 F.2d 1299, 1302 (7th Cir. 1988).

We are aware that the courts appear to take the view that the only way to preserve a case as controlling precedent is to deny the application for vacatur, and will generally give only persuasive, rather than controlling precedential weight to the legal analysis in vacated decisions. . . . However, the Board generally has not chosen to follow the same practice with respect to its own decisions.

In a footnote, Member Hurtgen said he would follow the court rule, i.e., a vacated opinion has persuasive, but not controlling, authority. He does not "think it prudent to have one rule for federal courts and another for the NLRB," noting that Matter of Memorial Hospital is not to the contrary.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

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Albertson's, Inc. (19-CA-24232, et al.; 332 NLRB No. 104) Spokane and Vancouver, WA and Bend and Redmond, OR Oct. 31, 2000. On a stipulated record, Chairman Truesdale and Member Liebman concluded that the Respondent violated Section 8(a)(1) of the Act by ordering the representatives of Food and Commercial Workers Local 555 and Teamsters Local 582 who were engaged in peaceful soliciting protected by the Act, to leave the immediate exterior of its retail grocery stores 230, 233, 235, 240, 246, 248, 580, 581, 587, 588, and 589, and by causing the police to remove their representatives from these properties in some instances. [HTML] [PDF]

Member Hurtgen, dissenting, found the Respondent has drawn a permissible line, i.e., one that is not condemned by the Act between (1) solicitations by charitable groups which are well known to the community and (2) solicitations by political groups, commercial groups which seek to sell goods or services, and charitable groups which are unknown to the community. "The Union falls on the forbidden side of the line, i.e., it is not a charitable organization," he said in finding there is no violation of the Act.

Local 582 sought access to solicit the Respondent's customers to boycott products sold by the Respondent and produced by an employer with whom Local 582 had a labor dispute. Local 555 sought access to solicit the Respondent's employees to become members of Local 555. The Respondent allowed various organizations to have regular and frequent access to the immediate exterior of its stores to solicit both employees and customers in fund-raising endeavors.

The majority wrote in finding that the Respondent's disparate enforcement of its no-solicitation rule against the representatives of Local 555 and 582 violated the Act:

In so finding, we are mindful of the Supreme Court's decision in Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983). But, as we have stated in prior cases, it does not require a contrary result. Be-Lo Stores, 318 NLRB 1 at 11 (1995), enf. denied 156 F.3d 268 (4th Cir. 1997). Contrary to the suggestion of the Respondent and our dissenting colleague, the Court's holding in that constitutional case does not govern the statutory issues presented in this case. At issue here is whether the Respondent has interfered with employees' statutory rights under Section 7 of the Act. The Court's reference in dicta to `entities of a similar character' addresses the question of First Amendment access to a `limited public forum.' In Babcock & Wilcox, . . . the Court explicitly addressed the interplay of employees' Section 7 rights and employer's property rights and found discrimination where an employer's prohibited and found discrimination where an employer prohibited union distribution and permitted `other distribution.'

The Respondent and our dissenting colleague also argue that the Respondent is not discriminating against union activity, but is prohibiting all solicitation by political grounds, 'unfamiliar charitable organizations,' and noncharities seeking selling opportunities. We find no merit in this argument.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Food and Commercial Workers Local 555 and Teamsters Local 582; complaint alleged violation of Section 8(a)(1). Parties waived their right to a hearing before an administrative law judge.

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Fleming Companies, Inc. (formerly Malone & Hyde, Inc.) (26-CA-17054; 332 NLRB No. 99) Southaven, MI Oct. 31, 2000. Chairman Truesdale and Member Hurtgen found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide General Drivers, Salesmen & Warehousemen's Local 984 with information necessary to pursue employee Richard Mack's grievance. Specifically, the Respondent unlawfully failed to provide a complete copy of Mack's personnel file; copies of work rules applicable at the time of Mack's discharge in 1988; the names, addresses, and telephone numbers of bargaining unit members employed by the Respondent's predecessor in 1988; and copies of rules on attire in effect around the time of Mack's discharge and copies of any disciplinary actions for alleged attire and DOT violations for the period 1985 to 1988. Chairman Truesdale and Member Hurtgen, citing Anheuser-Busch, 237 NLRB 982 (1978), reversed the judge and found that the Respondent had no duty to comply with the Union's request for copies of statements taken from witnesses. [HTML] [PDF]

In a separate concurring opinion, Members Fox and Liebman said they would overrule Anheuser-Busch and find that, under Detroit Edison Co. v. NLRB, 440 U.S. 301 (1976), the Respondent violated Section 8(a)(5) and (1) by refusing to provide the requested names of witnesses. However, in the absence of a majority for that position, they agreed that Anheuser-Busch required dismissal of the allegation.

The union ceased representation of the bargaining unit in January 1992, but it remained obligated to process Mack's grievances because they were filed while the collective-bargaining agreement was in effect. In June 1992, a Federal district court found that the collective-bargaining agreement in effect at the time of the discipline also obligated Malone & Hyde to take Mack's grievances to arbitration and, in 1994, the Sixth Circuit affirmed that decision in General Drivers v. Malone & Hyde, Inc., 23 F.3d 1039 (6th Cir. 1994), cert. denied 513 U.S. 1057 (1994). The Respondent purchased and became the successor to Malone & Hyde, Inc. in 1994.

(Chairman Truesdale and Members Fox, Liebman, and Hurtgen participated.)

Charges filed by General Drivers, Salesmen & Warehousemen Local 984; complaint alleged violation of Section 8(a)(1) and (5). Hearing held May 5, 1997. Adm. Law Judge Lawrence W. Cullen issued his decision June 9, 1997.

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Kalustyans (22-RC-11765; 332 NLRB No. 73) Union, NJ Oct. 23. 2000. The Board, in finding that the hearing officer erred in sustaining the Petitioner's challenges, concluded that the intent of the parties to include the three challenged voters in the unit as shipping clerks is clear and that the Petitioner failed to show that their inclusion would be inconsistent with any express statutory provisions or established Board policies. The Board overruled the challenges to the ballots of Kerri Goad, Michelle Hill-Taylor, and Nancy Stratford, and directed the Regional Director to open and count the ballots and to issue a revised tally of ballots and the appropriate certification. [HTML] [PDF]

The parties agreed to a unit including "shipping clerks" and excluding "office clerical employees," as sought by the Petitioner (Teamsters Local 575). The tally of ballots for the election held on August 4, 1999 showed 21 for and 18 against the Petitioner, with 3 determinative challenged ballots. The Petitioner challenged the three voters on the grounds that they were office clerical employees. In recommending that the challenges be sustained, the hearing officer found that the parties' objective intent regarding the challenged voters was ambiguous because the voters lacked bona fide job titles and a significant part of their job duties involved functions not directly related to the shipping of the Employer's merchandise. Using community of interest principles, he found that the challenged voters are office clerical employees and not shipping clerks and that they do not have a community of interest with the unit employees.

(Members Fox, Liebman, and Hurtgen participated.)

* * *

Newspaper & Mail Deliverers of New York & Vicinity (City & Suburban Delivery System) (34-CB-2202, et al.; 332 NLRB No. 77) New Rochelle, NY Oct. 25, 2000. Affirming the administrative law judge, the Board held that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing or attempting to cause City & Suburban Delivery System not to hire Charging Parties Willie Miles, Eduardo Valentin, and Jimmy Clark as regular situation-holders because they had, or the Respondent believed they had, worked during a strike or lockout. The Board explained that it need not decide in this case whether the Respondent's recommendations of casual employees for positions as regular situation-holders amounts to a nonexclusive referral system, to which the duty of fair representation does not apply. It agreed with the judge that the General Counsel established that the Respondent refused to recommend the Charging Parties for positions as regular situation-holders in retaliation for their protected activity, which is a violation of Section 8(b)(1)(A) independent of the duty of fair representation. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Willie Miles, Eduardo Valentin, and Jimmy Clark; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at White Plains, July 27-29 and Sept. 2, 1999. Adm. Law Judge Michael A. Marcionese issued his decision Dec. 3, 1999.

* * *

Chardan, Inc. d/b/a Perfect Art (29-CA-22767, 29-RC-9054; 332 NLRB No. 78) Maspeth, NY Oct. 24, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act and interfered with the election held in Case 29-RC-9054 by these acts: interrogating employees about their membership in UNITE Local 155, creating the impression that its employees' union activities were under surveillance, soliciting grievances from employees and promising to increase benefits and improve working conditions to induce them not to select the Union as their collective-bargaining representative, and threatening employees with unspecified reprisals and to close its business operations because of their union membership and activities. The Board set aside the election held on May 27, 1999 and directed a second one. The tally of ballots shows 17 for the Intervenor (Production Workers Local 17-18), 9 for the Petitioner (UNITE Local 155), 1 against the participating labor organizations, and 4 challenged ballots. [HTML] [PDF]

Member Hurtgen agreed that the election should be set aside, but based solely on the judge's findings that the Respondent violated Section 8(a)(1) by: (1) the threat to close its facility; (2) the implied preelection promise of a postelection wage increase; and (3) the coercive interrogation of employee Castillo. Contrary to his colleagues, Member Hurtgen found no merit in the allegations that the Respondent unlawfully solicited and made an implied promise to correct grievances, created the impression of surveillance, and threatened unspecified reprisals for voting for UNITE.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by UNITE Local 155; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn, Nov. 29-30, 1999. Adm. Law Judge Howard Edelman issued his decision March 28, 2000.

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Tri-State Generation and Transmission Assn. (27-CA-16299-1; 332 NLRB No. 88) Denver, CO Oct. 26, 2000. The Board affirmed the administrative law judge's dismissal of a complaint which alleged that the Respondent refused to furnish certain information to Electrical Workers (IBEW) Local 111 in violation of Section 8(a)(5) and (1) of the Act. The Board relied solely on the basis of the specific nature of the request for information, the Union's stated bases for the request, and the prevailing circumstances at the time the request was made. "Without passing on the ultimate merits of the Union's prospective accretion claim, we agree with the judge that the information request was premature," the Board stated. It disagreed also with the Union's alternative assertion, first raised after the charge was filed in this proceeding, that the requested information was relevant in the context of preserving the work of the Respondent's existing bargaining unit. [HTML] [PDF]

The Respondent is a public utility engaged in the generation and distribution of electricity. Before 1992, its service territory consisted of eastern Colorado and parts of Wyoming and Nebraska. In that year, it acquired a number of Colorado-Ute's generating and transmission facilities servicing western Colorado. The operations and maintenance employees at the acquired facilities were represented by the Union as the time of the acquisition, and the Union negotiated a recognition agreement with the Respondent to continue to represent those employees who worked in the territory formerly serviced by Colorado-Ute.

In October 1998, the Respondent sent a letter to its employees, including those represented by the Union, announcing a possible consolidation with Plains Electric Generation and Transmission, Inc. (Plains). In March 1998, the two entered into a merger agreement that was contingent on approval by the New Mexico regulatory authorities. On January 26, 1999, before the merger agreement was completed, the Union sent the Respondent a request for information concerning Plains' employees. The Union claimed that the Plains employees would be accreted into the bargaining unit and that the information was relevant to "the preservation of the work of the bargaining unit."

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Electrical Workers (IBEW) Local 111; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Denver on Nov. 30, 1999. Adm. Law Judge James L. Rose issued his decision Feb. 17, 2000.

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Encino-Tarzana Regional Medical Center (31-CA-23592; 332 NLRB No. 90) Tarzana, CA Oct. 27, 2000. Affirming the administrative law judge's recommendation, the Board dismissed complaint allegations that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by unilaterally suspending its "call off" procedure to determine staffing during the 3 days following the Union's 1-day economic strike. [HTML] [PDF]

On receiving the Union's 8(g) notice of intent to strike for 24 hours, the Respondent made arrangements with a temporary staffing agency for a professional staff to serve as temporary replacements for the strikers. The Staffing Agency required the Respondent to provide each temporary replacement a minimum guarantee of 48 hours' work. It is uncontested that, during the 3 days at issue, the temporary employees were lawfully on the job and that there was insufficient work for both the strikers and the so-called "crossover" employees who made themselves available for work during the 1-day strike.

The Board emphasized that the General Counsel's complaint did not allege that the Respondent was obliged to reinstate the economic strikers immediately upon their unconditional offer to return to work, notwithstanding its contractual obligation to guarantee temporary replacements from the Staffing Agency a minimum of 4 day's pay. It explained: "The narrow issue is whether, during that 3-day period, the Respondent was obliged to displace crossovers with returning strikers whenever the latter had a superior claim under the Respondent's 'call off' procedure." The Board wrote in agreeing with the judge that the circumstances in this case are sufficiently analogous to those presented in TWA v. Flight Attendants Union, 489 U.SA. 426 (1989), to warrant dismissal of the complaint:

In the circumstances presented here, the temporary employees provided by the Staffing Agency are analogous to the permanent replacements in TWA. That is so because, for the duration of the 3-day period at issue, the General Counsel has conceded their right to remain on the job in preference to the strikers. Thus, here, as in TWA, the seniority and other factors that form the basis for returning strikers' claims would function only to put strikers back on the job in preference to the crossovers, while leaving the Staffing Agency temporaries in place. That is not a permissible result under the principles of TWA and warrants our dismissal of the complaint.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charge filed by American Federation of Nurses Local 535, Service Employees; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Los Angeles on June 28, 1999. Adm. Law Judge Mary Miller Cracraft issued her decision Sept. 23, 1999.

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General Electric Co. (6-CA-24454, 26117; 332 NLRB No. 91) Washington, WV Oct. 27, 2000. On remand from the D.C. Circuit, Chairman Truesdale and Member Hurtgen dismissed the complaint allegation that the Respondent's handbill entitled, "The Real Question," suggested that the employees faced futile bargaining and an inevitable strike if they voted for Electrical Workers (UE), in violation of Section 8(a)(1) of the Act. The sole issue on remand is whether the Board should reaffirm its earlier adoption of the administrative law judge's finding that the Respondent's handbill was unlawful. 321 NLRB 662. The Court compared the handbill language with that in UARCO, Inc., 286 NLRB 55 (1987) and Coleman Co., 203 NLRB 1056 (1970), in which the Board found nearly identical statements to be lawful. Agreeing with the Court, Chairman Truesdale and Member Hurtgen found that the language in issue is lawful and that the cited cases are not distinguishable. [HTML] [PDF]

Member Fox, dissenting, would reaffirm the Board's original finding that the handbill violated Section 8(a)(1). She would distinguish the Board's decision in UARCO, Inc. and overrule the decision in Coleman Co.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

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Cold Heading Co. (7-CA-38768, 38768(2); 332 NLRB No. 84) Warren, MI and Hudson, IN Oct. 31, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (5) of the Act by routing two Formax headers to its Hudson, IN facility and removing and transferring machinery from its Warren, MI facility to the Hudson facility; and violated Section 8(a)(1) by threatening employees with plant closure and job loss if they supported an affiliation between the Cold Heading Employees Committee (the Committee) and the UAW and interrogating them about their support for the affiliation. [HTML] [PDF]

Chairman Truesdale and Member Hurtgen found no merit in the General Counsel's exceptions to the judge's findings that a majority of ballots were cast against affiliation and therefore the Respondent's refusal to recognize and bargain with the Committee, as affiliated with the UAW, did not violate the Act. Counsel for the General Counsel contended that the Committee never agreed to re-include the leaders in the bargaining unit after the parties had agreed to exclude them. The judge found that the parties never reached a final and binding agreement to alter the unit's scope and the leaders, as members of the unit, were eligible to vote in the affiliation election. Chairman Truesdale and Member Hurtgen, in agreeing with the judge that the leaders were included in the unit, noted that the position has been included in the unit through successive contracts and that insufficient evidence was presented at the hearing to justify a change in the historical bargaining unit. Having agreed that a majority of the employees voted against affiliation, Chairman Truesdale and Member Hurtgen found it unnecessary to pass on the Respondent's procedural challenges to the affiliation election.

Member Liebman, dissenting in part, would rely on equitable principles to find that the Respondent is estopped from challenging the affiliation and that it unlawfully refused to bargain with the Committee as affiliated with the UAW. The Chairman and Member Hurtgen noted that the General Counsel never litigated the case on that theory nor made that argument in its exceptions and thus declined to address the equitable estoppel analysis in this case.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by the UAW; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Detroit, Jan. 29-31 and April 7-8, 1997. Adm. Law Judge Margaret M. Kern issued her decision Sept. 17, 1997.

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Health Resources of Lakeview (4-RC-19816; 332 NLRB No. 81) Lakewood, NJ Oct. 25, 2000. The Board overruled the challenge to the ballot of part-time housekeeper Dorothy Chulsky, finding, contrary to the hearing officer, that the Petitioner failed to sustain its burden to establish that Chulsky is a statutory supervisor. The Board remanded the proceeding to the Regional Director to open and count the ballots of Chulsky and Patricia Terry and to issue a revised tally of ballots and the appropriate certification. The tally of ballots for the election held on November 18, 1999 shows eight ballots for and seven against Service Employees Local 1115, with two challenged ballots. In the absence of exceptions, the Board adopted the hearing officer's recommendation to overrule the challenge to the ballot of Patricia Terry. [HTML] [PDF]

Chulsky worked in the housekeeping department and spent most of her time doing vacuuming and laundry. John Brzyski was the housekeeping supervisor until he left the facility in April 1999. From April through late August 1999, there was turnover in the supervisor position. According to part-time housekeeper Shannon Hall, Chulsky served as acting supervisor until the end of September when Chris Sodano was hired as the supervisor. Sodano regularly worked weekdays. The Petitioner maintained that Chulsky is a supervisor, at least on weekends.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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J.E. Higgins Lumber Co. (20-UC-389; 332 NLRB No. 109) Sacramento, CA Oct. 31, 2000. Chairman Truesdale and Member Liebman granted the Union's request for review of the Regional Director's Decision and Order as it raised substantial issues solely regarding his reliance on Greenhoot, Inc., 205 NLRB 250 (1973), in clarifying the contractual unit to exclude individuals jointly employed by the Employer-Petitioner and TLC Transportation Staffing, Inc. They remanded the issue on review to the Regional Director for further consideration consistent with M.B. Sturgis, Inc., 331 NLRB No. 173, in which the Board overruled Lee Hospital, 300 NLRB 947 (1990), and clarified Greenhoot. The request for review was denied in all other respects. [HTML] [PDF]

Member Hurtgen, concurring in the remand, wrote separately to set forth his "strong view" that the Board in carrying out its new policy in this area must make sure that it acts to protect the Section 7 rights of contingent employees. He wrote:

My concern is highlighted by Jeffboat [Division, American Commercial Marine Service Company, 331 NLRB No. 173], and the instant case. In Jeffboat, the union sought to add the 'contingent' employees, by means of accretion, to an extant unit of user employees. The same is true in the instant case. Thus, the Union seeks to add these employees to the existing unit without their vote. The Board's remand leaves that issue open. If the Union succeeds, I fear that the Section 7 rights of these employees would be undermined. Ironically, a policy designed to protect Section 7 rights, may wind up undermining these rights.

Based on the above, I would not, without an employee vote, add the supplier/user employees to an extant unit of user employees, unless the test for accretion is satisfied.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

* * *

Technology Service Solutions (27-CA-13971, 13971-3; 332 NLRB No. 100) Englewood, CO Oct. 31, 2000. Chairman Truesdale and Member Hurtgen affirmed the administrative law judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) of the Act by refusing to provide Electrical Workers (IBEW) Local 111 with a prepetition list of names and addresses of bargaining unit employees where there was no reasonable alternative means for the Union to communicate with the employees, but they did not adopt all of the judge's findings or reasoning. "[T]he General Counsel simply fell short of proving his contention that the Union had no reasonable means of communicating with the bargaining unit employees unless the Respondent provided it with the names and addresses," the majority held. Member Fox, dissenting, did not agree with her colleagues' application of Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), to the issue, nor did she agree with their conclusion. [HTML] [PDF]

The Respondent installs, services, and repairs computer systems nationwide. The appropriate unit covers all the Respondent's 236 customer service representatives (CSRs) in its south-central region (Colorado, New Mexico, Oklahoma, Kansas, Missouri, Arkansas, and parts of Nebraska and Wyoming).

The majority wrote:

The dissent finds fault in our applying Lechmere's 'no reasonable alternative means' exception to this case. Rather than applying the Lechmere standard, the dissent would apply an ill-defined, more lenient standard, which would require the Respondent to supply the employees' names and addresses to the Union even in circumstances when it is not shown that the Union lacks a reasonable means to communicate with the unit employees. The dissent contends that this new standard is warranted because of the assertedly 'unique' characteristics of the bargaining unit that, according to the dissent, largely isolate the employees and restrict them from exercising their organizational rights.

Contrary to the dissent, the 'lack of reasonable alternative means' standard is, in our view, the appropriate one in the present case. Under existing case law, an employer has no obligation to provide the names and addresses of its employees to a union that wishes to organize them. Unless ordered as an unfair labor practices remedy, an employer's provision of its employees' names and addresses to a union is required only when, following the union's filing of an election petition accompanied by a sufficient showing of interest, the Board directs an election or approves the parties' consent-election agreement. Excelsior Undewear, supra. Nevertheless, in the present case, even though no election had been directed or agreed to, the General Counsel alleged that the Respondent violated the Act by denying the Union's request for the Respondent's employees' names and addresses 'where there was no reasonable alternative means for the Union to communicate with the Unit employees.' By using this language, the General Counsel invoked the Supreme Court's decision in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and its precursor, NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), which generally permit an employer to bar nonemployee union organizers from trespassing on its property unless there is no reasonable alternative means for the union to communicate its organizational message to the employer's employees.

The Board reversed the judge and found that the Respondent violated Section 8(a)(1) when Customer Service Manager Leonard "cautioned" employee Phillips against sending messages to other employees regarding unionization. The Board in 1997 vacated the judge's original decision and order dismissing complaint and, remanded the proceeding. 324 NLRB 298. In his supplemental decision, the judge recommended dismissal of the entire complaint, largely on the basis on credibility resolutions discrediting the General Counsel's principal witnesses.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Adm. Law Judge James M. Kennedy issued his supplemental decision Feb. 2, 1999.

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Teamsters Local 282 (TDX Construction Corp.) (29-CP-597, 29-CB-10074; 332 NLRB No. 82) New York, NY Oct. 30, 2000. Chairman Truesdale and Member Fox wrote in finding, contrary to the administrative law judge, that the Respondent did not violate Section 8(b)(6) of the Act by attempting to cause TDX Construction to employ an onsite steward: "The Respondent's demand for an onsite steward was a good-faith offer to perform relevant work. As such, it does not fall within the limited kind of featherbedding proscribed by Section 8(b)(6)." Member Hurtgen, dissenting, agreed with the judge that the Respondent violated Section 8(b)(6). In so doing, he disagreed with his colleague's application of the relevant precedents to the instant facts. "Because I take a less capacious view of TDX's sphere of activity than my colleagues do, I find that the instant case does not involve a bona fide offer of relevant services," Member Hurtgen said. [HTML] [PDF]

No exceptions were filed to the judge's finding that the Respondent violated Section 8(b)(7)(C).

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Queens West Development Co.; complaint alleged violation of Section 8(b)(6) and 8(b)(7)(C). Hearing at Brooklyn, May 21-22, 1997. Adm. Law Judge Steven Davis issued his decision May 29, 1998.

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FiveCAP, Inc. (7-CA-39503, et al.; 332 NLRB No. 83) Scottville, MI Oct. 31, 2000. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to notify and bargain with Teamsters Local 406 concerning the elimination of bargaining unit jobs and the reassignment of unit employees; and violated Section 8(a)(3), (4), and (1) in these respects: rescinding previously granted permission for personal time off, requiring the production of subpoenas and doctors' statements in order to return to work where such is not required by personnel policies and procedures, giving unwarranted disciplinary warnings, accusing employees of theft to law enforcement authorities, placing new and unwarranted restrictions on employees' use of facilities, reassigning employees in retaliation for their having engaged in protected activity, placing petty restrictions on employees' use of office equipment, and constructively discharging employees. [HTML] [PDF]

The Board reversed the judge's findings that the Respondent violated the Act by placing employee Florence Feliczak on probation after she had returned to work from a lawful suspension and refusing to allow Melissa Kukla to use a lesson plan that the Respondent had allegedly previously approved.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed by Teamsters Local 406; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Ludington on various days between May 11 and July 8, 1998. Adm. Law Judge James L. Rose issued his decision Dec. 17, 1998.

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Loyalhanna Care Center (6-CA-28609, et al.; 332 NLRB No. 86) Latrobe, PA Oct. 30, 2000. Members Fox and Liebman found, contrary to the administrative law judge, that nurses Cynthia Clark, Melanie Fritz, and Erica Lewis are not statutory supervisors because they do not exercise independent judgment with regard to any of the indicia of supervisory authority set forth in Section 2(11) of the Act. Therefore, they found that the Respondent violated Section 8(a)(1) of the Act, as alleged, when it threatened Lewis with the loss of her nursing license, issued "friendly reminders" and other disciplinary warnings to Fritz and Lewis, and discharged all three nurses because of their concerted complaints to management officials concerning wages, hours, and working conditions. Member Hurtgen, dissenting, agreed with the judge that Clark, Lewis, and Fritz are supervisors by virtue of their authority to responsibly direct and to assign employees, that their conduct was not protected, and the Respondent did violate the Act by discharging them. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

Charges field by Cynthia Clark, Erica Lewis, and Melanie Fritz, individuals; complaint alleged violation of Section 8(a)(1). Hearing at Pittsburgh on May 14, 1997. Adm. Law Judge Irwin Socoloff issued his decision April 7, 1998.

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Seton Co. (6-CA-26593, et al.; 332 NLRB No. 89) Saxton, PA Oct. 31, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act in various respects, including enforcing its no-solicitation/no-distribution rule selectively and disparately applying it only against employees supporting the Mine Workers; videotaping the Union's headquarters and using that image in a pro-company videotape distributed to all employees; refusing to hire and discharging employees because of their union activities; and when Supervisor Jim Donaldson impliedly threatened employees with discipline if they talked about the Union, and more onerous working conditions and plant closure if the Union were selected as the employees' collective-bargaining representative. [HTML] [PDF]

The Board affirmed the judge's finding the complaint allegations 10(b) and (c), 12, 15, 16, and 23(b) are not barred by Section 10(b) of the Act and that, contrary to the Respondent's contentions, it was not denied due process. In so doing, the Board rejected the Respondent's contention that the complaint allegations are untimely because they are not related to earlier charges and amended charges and found, that all the allegations in this proceeding, including those raised in the Respondent's exceptions, share a significant factual affiliation under the "closely related" test. It cited Ross Stores, 329 NLRB No. 59 (1999), as an additional basis for finding that all the complaint allegations are not barred by Section 10(b).

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by the Mine Workers; complaint alleged violation of Section 8(a)(1). Hearing at Altoona, April 8-11, 1997, and Bedford, May 12-15, 1997. Adm. Law Judge Wallace H. Nations issued his decision Dec. 31, 1997.

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Consolidated Diesel Co. (11-CA-16183, et al.; 332 NLRB No. 94) Whitakers, NC Oct. 31, 2000. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by prohibiting employees from distributing union materials on nonworktime in nonwork areas of its facility, removing from nonwork areas of the facility union materials which have been lawfully left there for distribution, and subjecting employees Losada and Wrenn to its Performance Management Process Committee procedure and retaining a record of the charges against them in its employment files, because they engaged in union or protected concerted activities. Member Hurtgen dissented in part. [HTML] [PDF]

The Respondent maintains a harassment policy which defines harassment as any unwelcome action, intended or not, which is considered offensive to a receiver or third party. The policy is implemented through the Respondent's Performance Management Process Committee (the Committee), which is comprised of both employees and management representatives. Harassment charges are first investigated by an employee relations representative, who reports the results to Employee Relations Manager Larry Williams. Williams decides whether the Committee should hear the charges. The Committee has the power to discipline individuals it finds to have violated the policy, including discharge. Charges were filed against both Losada and Wrenn in connection with separate incidents, involving their distribution of a union newsletter.

Chairman Truesdale and Member Fox noted that Losada and Wrenn's distribution of the newsletter is conduct clearly protected by Section 7 and that there is no contention that the manner in which they exercised their statutory right to distribute literature was so egregious, offensive, or extreme as to lose its protection. "To the contrary, in finding that the conduct of Losada and Wrenn did not constitute misconduct in violation of the Respondent's harassment policy, which finding we adopt, the judge effectively found it was not," they said. In agreeing with the judge that the conduct of Losada and Wrenn did not constitute harassment, Chairman Truesdale and Member Fox relied only on his reference to the "reasonable person" standard.

Member Hurtgen noted that it is undisputed that the Respondent's harassment policy is lawful on its face, and there is no contention that this investigation deviated from that policy. He found that the Respondent lawfully invoked its "Respect for Others" policy to exercise its legitimate right to investigate allegations of employee harassment against Losado and Wrenn, and that the record of that investigation is likewise privileged. In any event, he found that the Respondent neither by its words to the employees, nor by the manner in which it maintained the records, engaged in conduct proscribed by Section 8(a)(1).

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by CDC Workers Unity Committee a/w Electrical Workers (UE); complaint alleged violation of Section 8(a)(1). Adm. Law Judge Robert C. Batson issued his decision June 30, 1997.

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Plumbers Local 247 (Inland Industrial Contractors) (15-CB-4364, 4364-2; 332 NLRB No. 95) Alexandria, LA Oct. 31, 2000. The administrative law judge found that the Respondent, by its business manager, Gypin, failed to permit Edwin Funderburk, a member of another local of the International Union, to register on Respondent's out-of-work list, and that it failed to refer him to work, in violation of Section 8(b)(1)(A) and (2) of the Act. The Board agreed that the Respondent violated the Act in the first respect only. [HTML] [PDF]

The Respondent told Funderburk that there was no out-of-work list when in fact, there was. The judge found that the Respondent's failure to register Funderburk was not related to any legitimate reason pertaining to the efficient operation of the hiring hall. The Board found the failure to register Fundeburk was in itself a violation of Section 8(b)(1)(A) and (2). Turning to the alleged failure to refer Funderburk to Inland, the evidence showed that the Respondent (through Gypin) talked to Inland about giving work to Funderburk. Inland declined because it was not pleased with his prior work. The Board held: "Thus, Funderburk's nonreferral to Inland was not pursuant to any unlawful action or inaction by Respondent. The evidence also discloses that at the times Funderburk contacted Gypin looking for work, there were no requests for referrals from Inland or from any employer with whom Respondent had an exclusive hiring hall agreement."

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Edwin Funderburk and Ronald Jones, individuals; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Alexandria on Aug. 24, 1998. Adm. Law Judge Lawrence W. Cullen issued his decision Sept. 11, 1998.

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Goodless Electric Co. (1-CA-31249, et al.; 332 NLRB No. 96) Springfield, MA Oct. 31, 2000. On remand from the U.S. Court of Appeals for the First Circuit, the Board clarified existing precedent and affirmed its original decision that Electrical Workers (IBEW) Local 7 established its 9(a) representative status during the terms of the parties' 8(f) contract and that the Respondent, therefore, was not free upon expiration of that contract to withdraw recognition from the Union and unilaterally change terms and conditions of employment. 321 NLRB 64 (1996). By doing so and dealing directly with employees, the Respondent violated Section 8(a)(5) and (1) of the Act, and violated Section 8(a)(3) and (1) by constructively discharging its apprentice employees, the Board held. It wrote: [HTML] [PDF]

Having accepted the court's remand, we take the opportunity to provide the explanation that the court found was lacking in our previous decision. In so doing, we acknowledge that the Board's construction industry precedent at the time of the events at issue made no express provision for agreements like the one contained in the parties' 1992 letter of assent. What is distinctive about the 8(f) agreement at issue is that it provides for prospective 9(a) recognition. None of the cases cited by the Board in its initial decision and the court on review deal with such a provision. All the cases dealt with the question whether a union made an unequivocal demand for 9(a) recognition based on a contemporaneous showing of majority status. Accordingly, as the court held, in giving effect to the literal language of the prospective 9(a) recognition clause in the parties' 8(f) agreement, the Board, without 'cogent explanation,' permitted a 9(a) relationship to be established by a means other than those specified in the Board precedent governing the post-Deklewa transformation of 8(f) relationships into 9(a) relationships. 124 F.3d at 330.

We therefore take the opportunity afforded by the court's remand to clarify that in the construction industry, as in other industries, agreement for future 9(a) recognition are permissible and do not depend for their validity on showing of majority status at the time of the execution of the agreement. Rather, as explained below, where, as here, the parties' agreement so specifies, the union's providing the employer with reliable evidence of its majority status during the term of the 8(f) agreement is sufficient to trigger the employer's contractual obligation to grant 9(a) recognition to the union.

The Board explained further:

Accordingly, we hold that where the parties by express language have agreed that 9(a) recognition will be granted if the union submits proof of majority status during the contract term, the happening of the specified event, without more, triggers the legal consequences agreed on by the parties. In giving effect to prospective 9(a) recognition clauses in 8(f) agreements, we will presume that by providing the employer with reliable proof of majority status, the union is demanding recognition in accordance with the parties' agreement. The question whether the Union provided a contemporaneous showing of majority status will be examined as of the time that the contractually specified evidence is presented to the employer.

On the foregoing grounds, we conclude that a union's performance of the valid majoritarian conditions specified in a prospective 9(a) recognition clause constitutes a legally effective means for achieving 9(a) status in the construction industry. This is, in effect, a third option, in addition to the 'two-option[s]' that the court identified as the only available options for achieving 9(a) status at the time of this dispute. 124 F.3d at 330.

(Chairman Truesdale and Members Fox and Liebman participated.)

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New York University (2-RC-22082; 332 NLRB No. 111) New York, NY Oct. 31, 2000. The Board held that New York University's graduate assistants are employees under the National Labor Relations Act and entitled to organize and bargain with their employer even though they are enrolled as students. [HTML] [PDF]

Rejecting the university's contention that graduate students cannot be statutory employees because they are "predominately students," the Board concluded:

The uncontradicted and salient facts establish that graduate assistants perform services under the control and direction of the Employer, and they are compensated for these services by the Employer. Graduate assistants work as teachers or researchers. They perform their duties for, and under the control of, the Employer's departments or programs. Graduate assistants are paid for their work and are carried on the Employer's payroll system.

Relying on the Board's decision in Boston Medical Center, 330 NLRB No. 30 (1999) (reversing precedent and finding medical interns and residents to be statutory employees), the NLRB Regional Director in New York City issued a Decision and Direction of Election on April 3, 2000, in which he found NYU's teaching assistants, graduate assistants, and research assistants (but not graduate assistants in the Sackler Institute and research assistants funded by external grants in various science departments), were statutory employees. In agreeing with the Regional Director's finding, the Board stated:

Stripped to its essence, the argument of the Employer and others is that graduate assistants who work for a college or university are not entitled to the protections of the Act because they are students. The Board's broad and historic interpretation of the Act rejects such a narrow reading of the statute. Accordingly, we will not deprive workers who are compensated by, and under the control of, a statutory employer of their fundamental statutory rights to organize and bargain with their employer, simply because they also are students.

The decision is by Chairman Truesdale and Member Liebman. Member Hurtgen issued a separate concurring opinion in which he distinguishes between residents and interns (house staff) at hospitals, who he believes are not statutory employees (his dissenting position in Boston Medical Center), and graduate students, who he does regard as employees who should have the right to bargain collectively. He noted that house staff have "an educational relationship" with the hospitals where they train and perform their services as a necessary part of their medical education, whereas working as a graduate assistant is not a requirement for completing graduate education.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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NYP Acquisition Corp. and its alter ego NYP Holdings, Inc. (2-CA-26935; 332 NLRB No. 97) New York, NY Oct. 31, 2000. The Board majority of Chairman Truesdale and Member Hurtgen found no merit to the charges that gave rise to this case. The complaint alleged that the Respondents Acquisition and Holdings, owned by media magnate Rupert Murdoch, were alter egos, a single employer, and successors to the bankrupt New York Post Co. The complaint also alleged that the Respondents violated Section 8(a)(3) of the Act by terminating and refusing to reinstate striking employees represented by the Union. Finally, the complaint alleged the Respondents violated Section 8(a)(5) by withdrawing recognition from and refusing to bargain with the Union, and by unilaterally changing the terms and conditions of employment. Murdoch set up Acquisition in 1993 to manage the paper, which subsequently was purchased by Holdings. [HTML] [PDF]

The judge found that the Respondents were alter egos, but that Acquisition was not a successor to Post Co.; that therefore Holdings also did not have any duty to bargain with the Guild deriving from its status as an alter ego of Acquisition; and that Holdings had a right to hire a new work force when it purchased the Post Co. assets and did not have a duty to reinstate the strikers. Accordingly, the judge found that the Respondents did not commit the violations alleged and recommended that the complaint be dismissed. The majority agreed with the judge's ultimate conclusion that the complaint should be dismissed. Unlike the judge, however, it found that the Respondents were not alter egos; consequently, the majority found it unnecessary to pass on whether Acquisition was a successor to the Post.

In dissent, Member Fox would find that Acquisition was a successor employer of the Post, that both Respondents were alter egos and therefore violated Section 8(a)(1), (3), and (5) of the Act when, following Holding's purchase of the Post, Holdings withdrew recognition from the Guild, terminated Guild-represented employees who were engaged in a strike, and refused to reinstate them upon their unconditional offer to return to work.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Newspaper Guild of New York Local 3; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at New York 14 days between Oct. 16 and Dec. 14, 1995. Adm. Law Judge Eleanor MacDonald issued her decision Dec. 6, 1996.

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Lasher Service Corp. (20-CA-29138; 332 NLRB No. 71) Sacramento, CA Oct. 23, 2000. Affirming the administrative law judge, the Board held the Respondent failed to provide Machinists Lodge 2182, District 190 requested information concerning the parts department bonus plan and the union-security proposals under negotiations in violation of Section 8(a)(5) and (1) of the Act. In her recommended Order, the judge provided for conditional disclosure of the requested information. The Board however agreed with the Union that the Respondent should provide the requested information outright. It also found that the Respondent failed to establish its confidentially claim. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Machinists Lodge 2182, District 190; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Sacramento on Jan. 12, 2000. Adm. Law Judge Joan Wieder issued her decision May 30, 2000.

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Arlington Electric, Inc. (12-CA-17156; 332 NLRB No. 74) Stuart, FL Oct. 24, 2000. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act when admitted Supervisor Jack Briggs asked David Svetlick whether he was the person mentioned in a union flyer and how he could be working a nonunion job as a union member; and violated Section 8(a)(3) and (1) by discharging Svetlick because of his protected, concerted activity. In agreeing with the judge that Svetlick's circulation of a flyer constituted protected, concerted activity, the Board cited Furr's Cafeteria, 292 NLRB 749 (1989) and Emarco, Inc., 284 NLRB 832 (1987). The flyer urged hospital patrons and employees not to use the hospital because the Employer (a subcontractor of the hospital) did not provide paid family health care. The Board rejected the Respondent's assertion that a consumer boycott is permitted only during "labor disputes," which occur only when the employees first raise their concerns with the employer, because "[t]he language of Section 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made." NLRB v. Washington Aluminum Co., 370 U.S. 9, 13-14 (1962). [HTML] [PDF]

Contrary to the judge, the Board found that Medina was not a statutory supervisor at the time he told Svetlick that he would probably be fired for distributing a flyer and it dismissed the allegation that the Respondent violated Section 8(a)(1) through Medina's statement.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Electrical Workers (IBEW) Local 728; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami, Jan. 21-22, 1997. Adm. Law Judge Howard I. Grossman issued his decision July 16, 1997.

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Terry Machine Co., Division of S.P.S. Technologies, Inc. (7-RC-21581; 332 NLRB No. 75) Waterford, MI Oct. 24, 2000. The Board certified Auto Workers Local 155 as the exclusive collective-bargaining representative of all production and maintenance employees, including tool room employees, quality control employees, shipping and receiving employees and drivers working for the Employer at its Waterford, Michigan facility. [HTML] [PDF]

The tally of ballots for the August 5, 1999 election shows 76 for and 66 against the Union, with 12 challenged ballots. The challenged ballots, including those of employees designated as area coordinators, were sufficient to affect the election results. In election objections, the Employer contended that the area coordinators were supervisors within the meaning of Section 2(11) of the Act and that their prounion activities during the organizing campaign tainted the election and the Union's showing of interest supporting the petition.

In affirming the hearing officer's recommendation to overrule the Employer's objections, the Board did not rely on his characterization of the area coordinators as "low level or line" supervisors. Instead, it assumed, for purposes of analysis, that the area coordinators are statutory supervisors with the authority to punish and reward employees as contended by the Employer. The Board found however that the prounion activities of the seven coordinators could not have reasonably coerced the employees so as to warrant setting aside the election or dismissing the representation petition. In the absence of exceptions, the Board adopted the hearing officer's recommendation to sustain the challenges to the ballots of the seven area coordinators. The five remaining challenged ballots are not longer determinative. It adopted the hearing officer's recommendation to approve the Employer's withdrawal of Objections 5 and 6.

(Chairman Truesdale and Members Fox and Liebman participated.)

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Glenn's Trucking Co. (9-CA-35666; 332 NLRB No. 87) Hazard, KY Oct. 25, 2000. The Board affirmed the administrative law judge's decision that the Respondent violated Section 8(a)(3) and (1) of the Act by delaying the employment of, or denying employment to, the 23 alleged discriminatees. The Board agreed with the judge that the General Counsel met her initial evidentiary burden under Wright Line, 251 NLRB 1083 (1980), with respect to the Respondent's refusal to hire, or delay in hiring, the discriminatees. The judge implicitly found a "blatant disparity" in the Respondent's treatment of applicants, noting the "extreme" union versus nonunion hiring ratios. The statistical evidence thus can be used as an element of animus, the Board held. It also found that the General Counsel established the falsity of the Respondent's contention that the discriminatees were unqualified or less qualified than the employees it hired and that they had been passed over during an "honest random selection process." Having concluded that the Respondent's asserted business reasons were pretextual, the Board found the Respondent failed to satisfy its burden of showing that it would not have hired the discriminatees or delayed in hiring them or offering them jobs in the absence of their union sympathy, citing FES (A Div. of Thermo Power, Inc.), 331 NLRB No. 20, slip op. at 4. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

Charge filed by Mine Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hazard, Jan. 19-21, 1999. Adm. Law Judge David L. Evans issued his decision May 26, 1999.

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All Country Electric Co., Speer Electric Co., Scharff-Burns Co. (18-RM-1344, et al.; 332 NLRB No. 72) Waterloo, IA Oct. 25, 2000. Members Fox and Liebman, with Member Hurtgen dissenting, denied the Employer-Petitioners' request for review of the Regional Director's Decision and Order dismissing the Employer-Petitioners' petitions seeking elections in units of all employees employed in their electrical construction, installation, maintenance, and repair business. The Employer-Petitioners (All County Electric Co. and its divisions, Speer Electric Co. and Scharff-Burns Co.) contend that their employees are unrepresented and that Electrical Workers IBEW Local 288 made a claim for representation by filing a grievance seeking to cover the employees under collective-bargaining agreements nominally between the Union and CCT Corp. d/b/a Black Hawk Electric Co. [HTML] [PDF]

Members Fox and Liebman agreed with the Regional Director that All County Electric Company was created with a purpose to evade Black Hawk's collective-bargaining obligations. And, even absent a finding of such motive, they found that the evidence established that All County Electric was an alter ego of Black Hawk and its successor CCT Corp. d/b/a Black Hawk Electric. Addressing the dissent's concern about whether issues of motive may appropriately be considered in a representation proceeding, citing Texas Meat Packers, 130 NLRB 279 (1961), Members Fox and Liebman said: "[T]he cited case nor any other Board decision that we are aware of suggests that such questions are outside the scope of representation proceedings. Indeed, it is quite common for the Board to consider questions of motive or intent in representation proceedings." As for the dissent's claim that Section 10(b) precludes the Board from considering the circumstances surrounding establishment of the alleged alter ego, Members Fox and Liebman noted that Section 10(b) is not applicable to representation proceedings.

Member Hurtgen would review whether it is appropriate for the Board, in a representation case, to consider issues of discriminatory motive and whether, or to what extent, the Board should rely on evidence of events occurring in the early 1980s (when alter ego All County was created) to decide an issue of a party's motivation. Contrary to his colleagues, he found Texas Meat Packers is "very relevant" to the instant case because there, as here, there is no unfair labor practice allegation that the alleged alter egos were created for discriminatory motives. Thus, the Board should not, in a representation case, declare that there was such a motive, Member Hurtgen explained. He found the cases cited by his colleagues are distinguishable, noting that they do not involve the issue of discriminatory motive and that only one of the cases comes close to the issue.

(Members Fox, Liebman, and Hurtgen participated.)

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Ukiah Valley Medical Center (20-RC-17458; 332 NLRB No. 59) Ukiah, CA Sept. 29, 2000. The Board denied the Employer's request for review of the Regional Director's Order Denying Motion to Transfer Proceeding and Reopening the Hearing in which he found that asserting jurisdiction over the Employer did not violate either the First Amendment of the Constitution or the Religious Freedom Restoration Act, 42 U.S.C. §2000bb-1. The Employer is an acute care hospital operated and managed by the Seventh Day Adventist Church. The California Nurses Association seeks to represent a unit of the Employer's registered nurses (RNs). The Employer argued that the teachings of the Adventist faith prohibit Adventist institutions such as Ukiah from recognizing or bargaining with unions; that the Church prohibits its members from participating in labor unions, paying dues to labor unions, or operating with the presence of labor unions; and that the Church strictly adheres to these prohibitions and was prepared to divest itself of another health care facility if the employees voted to unionize. The Board held: [HTML] [PDF]

As the Regional Director noted, the Seventh Day Adventist Church owns and operates many health care institutions throughout the United States, employing thousands of employees, many of whom are not Church members. Application of the National Labor Relations Act to these institutions is the least restrictive means of accomplishing the goals of the Act: ensuring the right of those employees to self-organization and to have representatives of their choosing, and promoting industrial peace and avoiding disruptions to the delivery of vital health care services through the practice and procedure of collective bargaining. Conversely, as the Regional Director noted, granting an exemption to the Employer and to other Church-operated health care institutions would defeat Congress' intent in enacting the National Labor Relations Act, by denying many thousands of employees the opportunity to self-organize and choose bargaining representation, as well as by putting vital health care services in jeopardy.

(Members Fox, Liebman, and Hurtgen participated.)

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The Board did not affirm the judge's finding that the Respondent violated Section 8(a)(3) by entering into an employee leasing agreement in order for MK to avoid hiring a majority of NK's employees and to evade recognition of the Union, and that MK further violated Section 8(a)(3) by dealing directly with employees, setting terms and conditions of employment for newly-hired employees which differed from those established by the collective-bargaining agreement between NK and the Union, and refusing to return Steven Horsch to work.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Teamsters Local 283 and Steven Horsch, an individual; complaint alleged violation of Section 8(a)(1), (3), and (5). Adm. Law Judge John H. West issued his decision Nov. 28, 1997.

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Bridgestone/Firestone, Inc. (21-CA-31471, 31592; 332 NLRB No. 56) San Diego, CA Sept. 29, 2000. Chairman Truesdale and Member Fox agreed with the administrative law judge that the decertification petitions relied on by the Respondent in withdrawing recognition from Teamsters Local 481 in two separate bargaining units were tainted by the Respondent's unfair labor practices, rejecting the position of the Respondent and their dissenting colleague that certain of the alleged unfair labor practices found by the judge are time-barred by Section 10(b). Citing Ross Stores, 329 NLRB No. 59, slip op. at 1-3 (1999), they explained: "[A]s all of the conduct alleged in the amended complaint occurred within a period of several months and was essentially alleged to be part of an overall plan for the Respondent to rid itself of the Union, the conduct satisfies the tests of relatedness with respect to legal theory, factual circumstances, and the Respondent's defenses." [HTML] [PDF]

The majority, citing Caterair International, 322 NLRB 64 (1996), agreed with the judge that an affirmative bargaining order with its temporary decertification bar is appropriate. It found that a bargaining order vindicates the Section 7 rights of employees who were denied the benefits of collective bargaining by the Employer's withdrawal of recognition without unduly prejudicing the rights of employees who oppose continued representation because the duration of the order is no longer than is reasonably necessary to remedy the ill effects of the election. The majority noted that in addition to withdrawing recognition, the Respondent also failed to furnish information requested by the Union; promised better benefits to employees if they rejected the Union; dealt directly with employees by requiring them to sign forms to release their home addresses to the Union; and solicited employees to initiate and sign decertification petitions. The affirmative bargaining order serves the policies of the Act, the majority said. It noted that a cease-and-desist order, without a temporary decertification bar, would be inadequate.

Member Hurtgen, dissenting in part, concluded that the Respondent engaged in 8(a)(1) and 8(a)(5) violations that allegedly tainted the decertification petitions, but he found that the allegations are not properly a part of this case. The complaint does not allege the violations and even if it were deemed to do so they are not supported by a timely charge, he reasoned. Member Hurtgen therefore found that the Respondent had a good-faith doubt as to the Union's majority status and he would dismiss the allegations that the Respondent unlawfully withdrew recognition from the Union.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Teamsters Local 481; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Diego, June 12-13, 1997. Adm. Law Judge Gerald A. Wacknov issued his decision Sept. 19, 1997.

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Parts Depot, Inc. (12-CA-16449, et al.; 332 NLRB No. 64) Miami, FL Sept. 29, 2000. Affirming the administrative law judge, the Board found that a Gissel bargaining order is appropriate to remedy the coercive effects of the Respondent's severe unfair labor practices as exacerbated by the involvement of high-ranking officials. The misconduct included interrogating employees concerning their union support, granting a general pay increase to employees in July 1994, laying off employees, issuing disciplinary warnings and an unfavorable evaluation to prominent union supporter Vivian Fortin, and promising to terminate Warehouse Manager Bill Beaman if that would stop the union effort. The Board rejected the Respondent's claim that a bargaining order is inappropriate because of turnover in the bargaining unit since the 1995 election and because management officials Bassett and Jenkins, who committed many of the 8(a)(1) violations, have left the Respondent's employ. The Respondent presented an offer of proof at the hearing that, of the 101 employees in the unit at the time of the election, less than 50 were employed at the time of the hearing. The Board wrote: [HTML] [PDF]

[E]ven accepting, arguendo, the facts asserted by the Respondent concerning employee turnover, we find that the effects of the unlawful conduct are unlikely to be sufficiently dissipated by turnover to ensure a free second election. Although a significant number of the employees who were employed at the time of the unlawful conduct surrounding the election may have left the facility for reasons related or unrelated to the Respondent's unfair labor practices, others who remain would recall these events. Moreover, . . . the lingering effects of an across-the-board wage increase and the merit increases are particularly difficult to dispel.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed by UNITE; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Miami for 24 days between April 22 and May 7, 1996. Adm. Law Judge Richard J. Linton issued his decision June 30, 1997.

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Parts Depot, Inc. (12-CA-18478; 332 NLRB No. 65) Miami and Ft. Lauderdale, FL Sept. 29, 2000. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(4), (3), and (1) of the Act by discouraging membership in UNITE, imposing onerous working conditions on employees because they engaged in union or other protected concerted activities or because they testified in a Board proceeding, and impliedly threatening employees with discharge because they testified against the Respondent in a Board proceeding. The Board found, contrary to judge, that the Respondent violated the Act when warehouse manager, Leo Belaunzaran, impliedly threatened employees with discharge in order to discourage them from engaging in union activities and to discourage them from giving testimony in a Board proceeding. The Board agreed that the violations in this case provide further basis for issuing a bargaining order as recommended by the judge and affirmed in Parts Depot, Inc., 332 NLRB No. 64. It deleted the bargaining order in this proceeding however, as it is redundant. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Jose Castro, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Miami for 5 days between Jan. 22 and April 3, 1998. Adm. Law Judge Richard J. Linton issued his decision June 22, 1998.

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Allstate Insurance Company (10-CA-29184; 332 NLRB No. 66) Alpharetta, GA Sept. 29, 2000. Members Fox and Liebman found, as did the administrative law judge, that Carolyn Penzo, who worked for Respondent as a "Neighborhood Office Agent" (NOA), selling the Respondent's insurance policies from a storefront office in Alpharetta, Georgia was an employee within the meaning of Act, rather than a manager or supervisor at the time of the alleged unfair labor practice; and that the Respondent's issuance of a "job-in-jeopardy" disciplinary warning to her on October 19, 1995, violated Section 8(a)(1) of the Act. Member Hurtgen, dissenting, found that Penzo has supervisory authority that she exercises in the interest of the Respondent and is thus a statutory supervisor. [HTML] [PDF]

According to Penzo, she contributed $200,000 of her own money to the business between 1989 and 1995, with virtually nothing but debts to show for it. She was critical of the terms and conditions of her employment. Her criticisms became public knowledge after she and other of the Respondent's employees were interviewed and an article reporting her views of the NOA program appeared in Fortune magazine on October 2, 1995. In response to her role in the article, the Respondent issued the disciplinary warning to Penzo, stating that her job was at risk because of her unauthorized contact with the news media.

Although Members Fox and Liebman agreed with the judge that the Respondent violated the Act, they relied on a different analysis in finding that Penzo was neither a statutory supervisor nor a managerial employee. They explained "the decisive question is: given the characteristics of both supervisory and managerial status inherent in her job, in whose interest did Penzo act in running her office?" Member Fox and Liebman wrote:

The Respondent's NOA program is an essentially commission-based employment scheme that leaves to Penzo's self-interested entrepreneurial decisionmaking--and financial risk--certain basic choices concerning how her office is to be run. Having chosen to minimize its own involvement and to be guided by the self-interested risk of Penzo--who bears the immediately financial consequences of her misjudgments in these matters--the Respondent cannot persuasively maintain that Penzo is acting on its behalf and expressing or making operative its decisions when she exercised her own discretion in renting, furnishing, staffing, and otherwise running her office.

(Members Fox, Liebman, and Hurtgen participated.)

Charge filed by Carolyn Penzo, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Atlanta in March 1997. Adm. Law Judge William N. Cates issued his decision March 25, 1997.

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Pacific FM, Inc. d/b/a KOFY, Operator of KOFY TV-20 (20-CA-27232, et al.; 332 NLRB No. 67) San Francisco, CA Sept. 29, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Helen Perry on April 26, 1996; and violated Section 8(a)(1) by various acts including: prior to an election, soliciting grievances from employees with the express or implied promise of remedying them and announcing a new employee break policy for master control operators (MCOs), blaming the union organizing campaign for delayed pay raises, coercively interrogating employees about union activities or other protected concerted activities, threatening to move production to another area, and telling employees that it would be futile to support the Union as Respondent would never sign a union contract. Member Hurtgen, dissenting in part, would dismiss the allegations that the Respondent unlawfully discharged Perry and announced a new break policy for MCOs. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Helen Perry, Frank Pappas III, and Brian Shimetz; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Francisco, March 17, 18, 20, 26-28, 1997. Adm. Law Judge Michael D. Stevenson issued his decision Nov. 18, 1997.

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Forsyth Electrical Co. (11-CA-16631, 16805; 332 NLRB No. 68) Winston-Salem, NC Sept. 29, 2000. The Board reversed the administrative law judge's finding that the Respondent unlawfully failed to consider three union-affiliated applicants for employment and found, in agreement with the Respondent, that the General Counsel failed to establish the requisite antiunion animus. See FES (A Division of Thermo Power), 331 NLRB No. 20. The Board upheld the judge's finding that the Respondent unlawfully refused to grant preferential reinstatement rights to economic strikers David Jones, John Kimball, and Douglas Hill upon their unconditional offers to return to work. The judge rejected, with Board approval, the Respondent's argument that it was justified in denying reinstatement because the employees were lazy, unproductive, and ineffective workers. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Electrical Workers Local IBEW Local 342; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Winston-Salem, May 28-29, 1997. Adm. Law Judge Keltner W. Locke issued his decision Dec. 3, 1997.

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Carpenters Local 1006 (J.P. Patti Co.) (22-CD-685; 332 NLRB No. 69) Saddle Brook, NJ Oct. 13, 2000. The Board decided that Newmet's employees represented by Carpenters Local 1006 rather than those represented by Sheet Metal Workers Local 27 are entitled to perform the construction and installation of metal roofing work at a school being built in Monmouth Junction, New Jersey, for the South Brunswick, New Jersey Board of Education. In making the award, the Board relied on the relevant collective-bargaining agreements, and Newmet Corporation's preference and past practice. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

* * *

The Respondent did not except to the judge's findings that it violated Section 8(a)(1) by supervisor Carnegie's statement in September 1996 that elimination of overtime was based on the employees' union activities and violated Section 8(a)(3) when it issued a written "final warning" to employee Edward Norwood on April 24, 1996, based on alleged misconduct which the Respondent had tolerated on the part of other employees.

In a reversal of the judge, Members Fox and Liebman found that the Respondent violated Section 8(a)(3) and (1) by its discharge of Norwood on August 28, 1996. They agreed with the judge that the General Counsel established that Norwood's union activity was a motivating factor in the Respondent's decision to discharge him. Members Fox and Liebman relied on these factors in finding, contrary to the judge, that the Respondent failed to establish that Norwood had been insubordinate and that other employees had been similarly discharged for insubordination. The disciplinary form, on its face, indicates that the discharge decision was based "upon review of [Norwood's] overall work record," an indication that the Respondent did not discharge him for the insubordination alone. Norwood received one discipline in the 3 years that he worked for the Respondent (the final warning found unlawful by the judge; the Respondent does not contest his finding). Given the prefatory language that discharge for insubordination is not mandated, the Respondent failed to establish its claim that an act of insubordination inevitably results in discharge.

Member Hurtgen, dissenting in part, would remand the case to the judge to evaluate evidence that Respondent (through Supervisor Reeves) referred to the unlawful warning on April 24 when he told Norwood that he was discharged and to consider whether Norwood would have been discharged even if there had been no warning.

(Members Fox, Liebman, and Hurtgen participated.)

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Huntsville, May 1-2, 1997. Adm. Law Judge William N. Cates issued his decision May 2, 1997.

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Fixtures Manufacturing Corp. (17-CA-19174, 19366; 332 NLRB No. 55) Kansas City, MO Sept. 29, 2000. Affirming the administrative law judge, the Board found that the Respondent violated the Act in these respects: Acting Plant manager Thomas McCann's statements to employee Robert Sheall and to a group of supervisors, overhead by employee Dennis Evans; interrogating employees about their Union activities; threatening employees with discipline and/or discharge because of their union activities; discriminatorily banning union solicitation and the distribution of union materials during working time; discriminatorily prohibiting the posting of union materials on the employee bulletin board; requesting employees to report to the Respondent employees who harassed them when soliciting them on behalf of the Union; discriminatorily issuing a written warning for insubordination to George Hulse; and discriminatorily discharging Penny Sheridan. [HTML] [PDF]

Contrary to the judge who found that the Respondent violated Section 8(a)(3) and (1) by issuing written warnings for sexual harassment to Sheall and Harold Hoff, Chairman Truesdale and Member Hurtgen found that the Respondent lawfully disciplined Sheall and Hoff under the Respondent's policy against harassment. Member Liebman, dissenting from the reversal, concluded "the Respondent was not interested in investigating the merits of the sexual harassment complaints, but, rather, seized on them as a convenient pretext to justify disciplining two union adherents."

Member Hurtgen dissented from the finding that McCann's statement to a group of supervisors, overhead by employee Evans, constituted an unlawful threat. He explained: "I find that McCann's words [that, in order to deal with the Union, "they needed to verbally kill the chicken and weed out the bad seed"] could not reasonably be understood as a statement that the Respondent would discipline employees for engaging in protected activity. If the statement was nonsensical to the judge (a reasonable person), it is difficult to understand how another reasonable person (e.g., an employee) would read into the statement the message that employees would be fired for union activities."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Teamsters Local 41; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Overland Park, Oct. 29-30 and Nov. 3, 1997. Adm. Law Judge Mary Miller Cracraft issued her decision Jan. 16, 1998.

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Victoria Packing Corp. (29-CA-22386; 332 NLRB No. 58) Brooklyn, NY Sept. 29, 2000. Members Fox and Liebman affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet, bargain, and deal with Business Agent John Pierman, the Union's designated representative; and by unilaterally abrogating the visitation provisions in article 26 of the parties' collective-bargaining agreement by refusing to permit Pierman access to the Respondent's facility. The Respondent asserted in exceptions that the latter violation was neither alleged in the complaint nor litigated at the hearing. [HTML] [PDF]

Contrary to the Respondent's exception and the position of their dissenting colleague, Members Fox and Liebman found that the violation was both alleged and litigated, and has been properly found. Member Hurtgen, without reaching the merits of the issue, found that as a procedural matter, the "unilateral abrogation" issue was neither raised by the complaint nor litigated by the parties. He would modify the judge's decision and recommended Order accordingly.

(Members Fox, Liebman and Hurtgen participated.)

Charge filed by Food and Commercial Workers Local 174; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on Oct. 19, 1999. Adm. Law Judge Raymond P. Green issued his decision Dec. 23, 1999.

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Kohler Mix Specialties (18-CA-13040; 332 NLRB No. 61) White Bear Lake, MN Sept. 29, 2000. Chairman Truesdale and Member Liebman, with Member Hurtgen dissenting, denied the Respondent's motion for summary judgment, arguing that the Board should defer to an arbitrator's decision and dismiss the complaint. The case was remanded to the Regional Director for further appropriate action. The majority wrote in finding deferral inappropriate because the arbitrator did not adequately consider the unfair labor practice issue: [HTML] [PDF]

The issue before the Board is whether the Respondent, by failing and refusing to bargain with the Union about its decision, and the effects of its decision, violated its statutory obligation to bargain set forth in Section 8(d) and enforceable through Section 8(a)(5). Resolution of this issue requires a determination of whether the decision is a mandatory subject of bargaining, whether the Union has waived a statutory right to bargain about the decision or its effects, and whether the Respondent has already satisfied its obligation, if any, to bargain. The issue decided by the arbitrator, however, was only whether any provision of the parties' contract affirmatively prohibited the Respondent's unilateral decision to subcontract its over-the-road delivery operation. Finding no such prohibition, the arbitrator concluded that there had been no breach of contract.

The majority agreed with the General Counsel that Armour & Co., 280 NLRB 824 fn. 2 (1986), is dispositive of the deferral issue. It found distinguishable such cases as Southern California Edison Co., 310 NLRB 1229 (1993), relied on by the Respondent; and Oklahoma Fixture Co., 314 NLRB 958 (1994), cited by the dissent.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Teamsters Local 471; complaint alleged violation of Section 8(a)(1) and (5). Respondent filed motion for summary judgment Jan. 22, 1998.

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United Insurance Co. of America (12-CA-19979, 20016; 332 NLRB No. 57) St. Petersburg, FL Sept. 29, 2000. The Board agreed with the administrative law judge that the Respondent lawfully issued warning notices to Edward Russell and Jeffrey Lastinger and placed them on probation for one year for failing to follow company rules when Russell signed an application for insurance coverage on Lastinger's mobile home and Lastinger wrote a policy for life insurance on his father, Robert Lastinger. It dismissed the complaint alleging that the Respondent violated Section 8(a)(4), (3), and (1) of the Act by taking the actions against the two employees because they joined and assisted the Food and Commercial Workers International and engaged in concerted activities, because they gave testimony to the Board in the form of affidavits, and because Lastinger filed an unfair labor practice charge against the Respondent in Case 12-CA-19391. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by the Food and Commercial Workers International; complaint alleged violation of Section 8(a)(1), (3), and (4). Adm. Law Judge William N. Cates issued his decision March 6, 2000.

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PNEU Electric, Inc./Nan Ya Plastics Corp. (15-CA-14050; 332 NLRB No. 60) Lafayette, LA Sept. 29, 2000. The administrative law judge found, and the Board agreed, that the Respondents discharged, and caused the discharge of employees Clifford Zylkes and Andras Aycock because of their union organizational activities in violation of Section 8(a)(3) and (1) of the Act. The Board found that the "focus of their discharges was, as the judge found, the content of their conversations--the union--and their union solicitation of other employees." [HTML] [PDF]

The Board, citing FES, 331 NLRB No. 20 (2000), agreed with the judge that Respondent PNEU violated Section 8(a)(3) and (1) by failing to consider for employment applicants Kendrick Russell, Donald Longupee, and Roland Goetzman when they sought to apply for work on June 25, 1996. Finding, as did the judge that applicants Russell, Longupee, and Goetzman were affirmatively mislead about he availability of applications, the Board wrote:

Respondent PNEU's departure from its normal practice of taking applications was a meaningful act because it excluded the three applicants from the process by which employees are considered for job opportunities with Respondent PNEU. We agree with the judge that the disparate treatment of Anderson, whose union affiliation was unknown, and the three applicants wearing union organizer buttons warrants the inference that Respondent PNEU's refusal to consider the union applicants for employment was motivated by their union affiliation. Further, Respondent PNEU failed to show that it would not have considered them even in the absence of their union affiliation.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Electrical Workers IBEW Local 995; complaint alleged violation of Section 8(a)(1) and (3) of the Act. Hearing at Baton Rouge, Sept. 22-24, 1997. Adm. Law Judge Robert C. Batson issued his decision Feb. 9, 1998.

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Clinton Electronics Corp. (33-CA-11536, 11725 (1-2); 332 NLRB No. 47) Loves Park, IL Sept. 29, 2000. Affirming the administrative law judge, the Board majority of Chairman Truesdale and Member Liebman found the Respondent had engaged in certain unfair labor practices, including disciplining union supporter Lee for soliciting employees at work and home about joining the union; a statement by supervisor Prock to employee Smith that employees could lose their jobs if the Union succeeded; and an interrogation by supervisor Krueger of employee Williams. Dissenting Member Hurtgen would not find a violation in the remarks on the shop floor between Prock and Smith, which was overheard by a second employee, because they "were made in the context of a conversation between friends, and was a response to Smith's asking for Prock's opinion regarding the Union." Member Hurtgen also did not agree with the majority that Krueger's questioning of Williams about attending a Union meeting constituted an unlawful interrogation. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Steelworkers; complaint alleged violation of Section 8(a)(1) and (3) of the Act. Hearing at Rockford, Feb. 11-14, 1997. Adm. Law Judge William J. Pannier III issued his decision Sept. 18, 1997.

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Jonbil, Inc. (11-CA-16707, et al.; 332 NLRB No. 63) Chase City, VA Sept. 29, 2000. The Board ordered a second election be held among the Respondent's employees in the unit found appropriate and that the Respondent supply to the Union the names and addresses of all current unit employees. The Board declined to impose a Gissel bargaining order given the long delay in the decision's issuance. The first election (134 for and 143 against union representation) was held on September 15, 1995. In a footnote, Member Liebman said she thought additional remedial measures, such as having a Board agent read the notice to employees in the presence of a responsible management official, and providing the Union access to company bulletin boards, were necessary "to dissipate_ the lingering atmosphere of fear created by the Respondent's pervasive unlawful conduct_." [HTML] [PDF]

Member Hurtgen, in declining to grant a bargaining order, pointed out in a footnote that three management officials who had been responsible for a number of the unfair labor practices, no longer were employed by the Respondent. He also noted there has been a 44 percent turnover of employees (154 of 352 employees) between the time of the events at issue here, more than 4 years ago, and the end of the hearing in this case on July 11, 1996.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Needletrades Employees [UNITE]; complaint alleged violation of Section 8(a)(1) and (3) of the Act. Hearing at Boydton, May 4-6 and July 9-11, 1996. Adm. Law Judge Philip P. McLeod issued his decision Jan. 21, 1997.

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U.S. Postal Service (3-CA-19545-1(P), et al.; 332 NLRB No. 62) Albany, NY Sept. 29, 2000. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing or otherwise failing to provide the Union with requested information or by unnecessarily delaying its responses to the Union's requests, including its request for Supervisor Frank Appio's attendance records and EAP Coordinator Lisa Lynch's report assessing Supervisor Guerin's relationship with the employees under his supervision. [HTML] [PDF]

Chairman Truesdale and Member Fox agreed with the judge that the Respondent violated Section 8(a)(5) and (1) by its negative response to the Union's request for any investigative reports made by Supervisor Frank Fuschino. "Unlike our dissenting colleague, we do not find it a defense to our finding of a violation that, during the entire period that the Respondent neither responded to the Union's request nor produced the document, both the Union and the Respondent were acting under a misapprehension: both were unaware that the report at issue had already been turned over to the Union as part of a response to an earlier Union request." Member Hurtgen found, in these circumstances here, where there is a material mistake of fact, there was no violation and, if there was, there is no need for a remedial order.

Turning to other alleged violations, the Board agreed with the judge that the Respondent violated Section 8(a)(5) and (1) by failing to direct the Union to section 513.364 of the Employment and Labor Manual (ELM) and to explain why Dorothy Holveg's absence documentation was insufficient; failing to respond to additional requests related to Holveg's absence; and failing to explain why Holveg was scheduled to report to work on September 28, 1996 and not paid. Member Hurtgen disagreed with his colleague's conclusion that the Respondent violated the Act by simply advising the Union to see sec. 513 of the ELM when the Union asked why Holveg's absence documentation did not meet that section's criteria. If the Union needed more information after reading sec. 513, it could have asked the Respondent for a clarification, he observed.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by American Postal Workers Local 390 and Mid Hudson Area Local; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Albany, June 9-10, 1997. Adm. Law Judge Howard Edelman issued his decision Dec. 31, 1997.

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Watkins Construction Co. (27-RC-8038; 332 NLRB No. 70) Gillette, WY Oct. 4, 2000. The Board, disagreeing with the hearing officer that there are grounds for questioning the fairness of an election held by mail ballot between May 19 and June 2, 2000, certified that a majority of the valid ballots have not been cast for Pipeliners Local 798. "The procedural errors that were committed, although regrettable, could not have affected the outcome of the election," it said. [HTML] [PDF]

Before the ballot count at 1 p.m. on June 2, the Union's observer, Randy Evans, challenged three ballots, including the ballot of Andres Flores. The Board agent mistakenly opened Flores' ballot. The tally was 10-10, with 2 challenges. Evans later agreed to voluntarily withdraw the remaining two challenges. The final tally was 10 for and 12 against the Union. The parties learned at the hearing that one of the counted ballots had arrived at the regional office on June 2 at 10:19, after the 10 a.m. deadline. The Union filed several objections to the election. In the absence of exceptions, the Board adopted, pro forma, the hearing officer's recommendation to overrule the Petitioner's Objections 3 through 5.

The hearing officer found that the counting of Flores' ballot and the failure to give the Union the opportunity to challenge the tardy ballot caused reasonable doubt as to the fairness and validity of the election and that it was impossible to determine how the two ballots affected the election results. The Board disagreed. It noted that the parties litigated the Union's contention (raised in Objection 4) that Flores' ballot should not be counted because the Employer assisted him in completing his ballot and that the Union did not except to the hearing officer recommendation that the objection be overruled. With respect to the tardy ballot that arrived 2 hours and 41 minutes before the count began, the Board pointed out that it has held that even where the record does not disclose a reason for the late mailing of a ballot that is received after the deadline for receipt, such a ballot should be counted if it is received before the count begins. In certifying the election results, it explained:

Had Flores' ballot and the tardy ballot been properly segregated and the subject of a hearing to resolve challenges, it is clear that the challenges would have been overruled, and the ballots would have been counted, resulting in the 10-10 tie vote reflected in the initial tally. Because the remaining two challenged ballots have been opened and counted, we know that these ballots were cast against the Union. Thus, even assuming the Union had pursued all four possible challenges, there is no scenario under which the election results could have been favorable to the Union.

(Chairman Truesdale and Member Liebman and Hurtgen participated.)

* * *

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Pavel Lukes; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Albuquerque on April 13, 1998. Adm. Law Judge William L. Schmidt issued his decision Sept. 18, 1998.

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USF Dugan, Inc. (17-CA-19761; 332 NLRB No. 36) Omaha, NE Sept. 28, 2000. The Respondent discharged union supporter Bruce DiMartino because of his activities for Teamsters Local 554 in violation of Section 8(a)(3) and (1) of the Act, the Board held in agreement with the administrative law judge. The judge found that the General Counsel established by a preponderance of the evidence that DiMartino engaged in union activity, that the Respondent knew of his activities and had an antiunion animus toward his union support, and that the Respondent's animus was the real reason for the discharge. The judge found the Respondent's asserted reasons for DiMartino's discharge--his improper claim for 1 hour of delay pay--were a pretext. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Teamsters Local 554; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Omaha, Sept. 22-23, 1999. Adm. Law Judge Albert A. Metz issued his decision June 12, 2000.

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Lockheed Martin Astronautics (27-CA-14557, et al.; 332 NLRB No. 37) Littleton, CO Sept. 28, 2000. In this supplemental decision, the Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending Lee Gutierrez for 3 days on May 1, 1996, and by discharging him on January 30, 1997. The judge found that Gutierrez' protected discussions of employee Jolene Conn's medical restrictions were a substantial motivating factor in the Respondent's decision to suspend him, that Gutierrez' discharge was based on his entire disciplinary record, including the unlawful suspension, and that the Respondent failed to demonstrate that it would have suspended and discharged Gutierrez even absent his protected activity. The Board had remanded the proceeding to the judge in January 2000 for further findings regarding the allegations that the Respondent unlawfully suspended and discharged Gutierrez. 330 NLRB No. 66. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Adm. Law Judge Albert A. Metz issued his supplemental decision June 27, 2000.

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Composite Energy Management Systems (7-CA-42398; 332 NLRB No. 39) Grand Rapids, MI Sept. 28, 2000. Affirming the administrative law judge's recommendation, the Board dismissed complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act on and after July 22, 1999 by refusing to execute a plant-closing agreement negotiated with the Auto Workers UAW. The judge credited the testimony of Respondent attorney Nantz over that of Union attorney Fayette concerning their conversation on July 22, 1999 and found that the parties did not reach complete agreement. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by the Auto Workers UAW; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Grand Rapids on Feb. 17, 2000. Adm. Law Judge C. Richard Miserendino issued his decision July 11, 2000.

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Painters Local 466 (Skidmore College) (3-CB-6902, 6903; 332 NLRB No. 41) South Glens Fall, NY Sept. 29, 2000. Chairman Truesdale and Member Liebman, citing Office Employees Local 251 (Sandia National Laboratories), 331 NLRB No. 193 (2000), affirmed the administrative law judge's finding that the Respondent, through business manager DiFiore, violated Section 8(b)(1)(A) of the Act by making threats of unspecified reprisals against Maurice Victor and Thomas McGovern because of their protected intraunion dissident activity of challenging incumbent union leaders. They reversed the judge's finding that the internal union disciplinary actions against Victor and McGovern were unlawful. Member Hurtgen, dissenting in part, found that the Respondent additionally violated Section 8(b)(1)(A) by filing internal charges against Victor and McGovern, and by fining and expelling them from membership in response to their intraunion dissident activity. [HTML] [PDF]

In Sandia, issued subsequent to the judge's decision, the Board overruled the precedent which the judge followed in finding that the intraunion discipline of Victor and McGovern was unlawful. There, the Board said that it would "no longer proscribe intraunion discipline under Section 8(b)(1)(A) which involves a purely intraunion dispute, and does not interfere with the employer-employer relationship, or contravene a policy of the National Labor Relations Act." Id., slip op. at 10.

Chairman Truesdale and Member Liebman wrote in finding that the Respondent's intraunion disciplinary actions did not violate Section 8(b)(1)(A): "The disciplinary proceedings arose entirely within the confines of internal union affairs, had no impact on the relationship of those involved to any employer, and impaired no policy of the Act." However, noting that the Board in Sandia reaffirmed longstanding precedent holding that Section 8(b)(1)(A) proscribes threats of economic reprisals and physical violence by unions against employees, they found that DiFiore's statements at two union meetings were unlawful threats.

Member Hurtgen, noting that the discipline imposed by the Respondent included fines to Victor and McGovern of $700 and $500, respectively, wrote: "Thus, as I stated in Sandia, I would stay the Board's involvement only in situations where the 'underlying dispute is wholly intraunion, and the discipline is wholly internal and nonmonetary.' . . . Where, as here, the unfair labor practice has an economic consequence for the victims, I would redress that consequence under the remedial provisions of the NLRA."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Maurice Victor and Thomas McGovern; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Albany on Aug. 23, 1996. Adm. Law Judge Howard Edelman issued his decision May 7, 1997.

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Kaminski Electric & Service Co. (25-CA-23807(1-2), 24059(1-3); 332 NLRB No. 42) Owensboro, KY Sept. 29, 2000. Relying on FES (A Division of Thermo Power), 331 NLRB No. 20 (2000), which set the framework for analysis of refusal-to-consider and refusal-to-hire allegations, the Board remanded to the administrative law judge the issue presented on exceptions in this case--whether the judge correctly dismissed an allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire union-affiliated applicants Gerald Frey and Gerald Snodgrass. [HTML] [PDF]

No exceptions were filed to the judge's findings that the Respondent violated Section 8(a)(1) by promulgating and maintaining a rule prohibiting employees from discussing their wages with other employees, admonishing and threatening employees with discharge for discussing their wages with other employees, and admonishing an employee for discussing the Union with other employees while working. And, no exceptions were filed to the judge's finding that the Respondent violated Section 8(a)(3) and (1) by failing and refusing to consider applicants for hire because of their affiliation with the Union, changing its hiring procedures and practices to avoid receiving applications from union-affiliated applicants, disciplining employees for engaging in union activity, and discharging employees because of their union activity. The Board entered a final Order with respect to these findings.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed by Electrical Workers (IBEW) Local 1701; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Owensboro, Jan. 8-10, 1997. Adm. Law Judge Robert T. Wallace issued his decision October 31, 1997.

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Ryan Iron Works, Inc. (1-CA-33353, et al.; 332 NLRB No. 49) Raynman, MA Sept. 29, 2000. The Board, in a 2-1 opinion (with Chairman Truesdale and Member Fox in the majority and Member Hurtgen dissenting), held that a direct dealing/bypassing violation by the Respondent on Oct. 23, 1995 converted an economic strike that began on Sept. 11, 1995 into an unfair labor practice strike. The Board further found that the Respondent unlawfully refused to reinstate unfair labor practice strikers following their unconditional offers to return to work. [HTML] [PDF]

The judge had found that the strike was an economic strike in its inception but that certain of the Respondent's unfair labor practices prolonged the strike and converted it to an unfair labor practice strike. He rejected the argument that this conversion took place on October 23, when the Respondent's president, Howard Shea, unlawfully bypassed the Union and engaged in direct dealing during a lengthy conversation with striking unit-employee Wallace Penniman about the contract negotiations. Instead, the judge found that the strike converted on November 14 when the Union learned about the Respondent's unlawful unilateral changes through its failure to make pension payments for the month of October. He further found that the Respondent's December 7 withdrawal of recognition was also sufficient to have converted the strike.

The majority cited Safeway Trails, 233 NLRB 1078, 1082 (1977), enfd. 641 F. 2d 930 (D.C. Cir. 1979) and Beaumont Glass Co., 310 NLRB 710, 719 (1993), in finding the economic strike had converted to an unfair labor practice strike due to the Respondent's unlawful direct dealing incident on Oct. 23. It stated:

In this regard, the Board has several times held that an employer's unlawful efforts to bypass the union representative and to deal directly with bargaining unit employees is objectively 'such as could not help but prevent and inhibit good-faith bargaining, thereby prolonging the strike.' ...We find that objective inference to be applicable here to President Shea's unlawful conduct. Furthermore, the inference is supported by credible subjective evidence of the divisive effect of this conduct on the strikers and their union negotiators, after Shea's remarks were quickly disseminated among them.

Dissenting, Member Hurtgen agreed with the judge that the Oct. 23 violation did not convert the strike. He asserted: "This was an isolated incident in which the Respondent questioned a single employee as to what employees wanted in negotiations, and explained the Respondent's bargaining proposals. While violative of Section 8(a)(5), I cannot find that this single incident prolonged the strike."

The Board concluded that an affirmative bargaining order is warranted in this case as a remedy for the Respondent's unlawful withdrawal of recognition from the Union.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Iron Workers complaint alleged violation of Section 8(a)(5). Hearing at Boston, July 15-16, 1996. Adm. Law Judge James L. Rose issued his decision Oct. 27, 1996.

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Caruso Electric Corp. (3-CA-19704, 19777; 332 NLRB No. 50) Rochester, NY Sept. 29, 2000. The Board majority of Chairman Truesdale and Member Fox, applying FES, 331 NLRB No. 20 (2000), affirmed the administrative law judge's finding that antiunion animus contributed to the Respondent's decision not to hire four electrician applicants in violation of the Act. In dissent, Member Hurtgen would dismiss the complaint because the General Counsel had not established, in his view, the element of animus on the basis of the Respondent having back-dated employment applications. The majority pointed out the judge had credited employee Michael Mawn's testimony that the Respondent's president, Jerry Caruso, directed him to alter the date on his employment application from January 8, 1996, to October 8, 1995, because, in September and October 1995, the Respondent "had union people coming by filling out applications." [HTML] [PDF]

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Electrical Workers (IBEW) Local 86; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Rochester, Oct. 15-16, 1996. Adm. Law Judge Judith Ann Dowd issued her decision March 21, 1997.

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Electrical Workers (IBEW) Local 98 (Honeywell Inc.) (4-CD-991; 332 NLRB No. 51) Philadelphia, PA Sept. 29, 2000. In this Section 10(k) proceeding, the Board concluded that Honeywell, Inc. installers represented by the Respondent Union are entitled to the security system installation work in dispute. The charge alleged that the Union violated the Act by engaging in proscribed activity with an object of forcing the Employer (Honeywell) to assign certain work to electricians it represents who are employed by various contractors rather than to installers it represents who are employed by Honeywell. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

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Mississippi Power Company (15-CA-13436; 332 NLRB No. 52) Gulfport, MS Sept. 29, 2000. The Board agreed with the administrative law judge's finding that the Respondent violated the Act by announcing its planned retirement benefit changes for future retirees to the Union locals on April 21, 1995 and that it thereafter by refusing to bargain with the locals over these changes. The Respondent had attempted, in its exceptions, to extend the Board's holding in Pittsburgh Plate Glass (i.e. that presently retired former employees are not employees under the Act) to exclude active employees from the Act's coverage on the ground that they are "future retirees." As the Board pointed out in the instant case: "Assuming that all active employees are future retirees, we question whether anyone, under the Respondent's proposed analysis, would be covered by the Act." [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Electrical Workers (IBEW) Locals 1204, 1209, 1210, and 1211; complaint alleged violation of Section 8(a)(5). Hearing at New Orleans, LA, Oct. 10-11, 1996. Adm. Law Judge William N. Cates issued his decision Jan. 16, 1997.

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Debbie Reynolds Hotel (28-CA-14127, 28-RC-5468; 332 NLRB No. 46) Las Vegas, NV Sept. 29, 2000. The Board affirmed the administrative law judge's recommended Gissel cateory II bargaining order, concluding that the possibility of erasing the effects of the Respondent's unfair labor practices and of conducting a fair second election were unlikely. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). It applied M.J. Metal Products, 328 NLRB No. 170 (1999), and, as mandated by the Supreme Court in Gissel, examined the extensiveness of the Respondent's unfair labor practices and the likelihood of their recurrence in the future. The Board also considered, as required by some circuit courts, the appropriateness of a bargaining order at the present time and the inadequacy of other remedies. Concluding that its traditional remedies are inadequate to erase the coercive effects of the Respondent's misconduct involving high-management officials, the Board wrote: [HTML] [PDF]

[T]he Respondent took drastic, immediate, and persistent measures to thwart its employees' support for the Union in the representation election. This unlawful course of conduct began even before the petition was filed and escalated quickly after the filing. It reached its peak with the commission of several 'hallmark' violations, including subcontracting out most of the unit work and laying off most of the unit employees, discharging [employees] Brister and Guilkey, and repeatedly threatening job loss and closing, and continued even after the election. 'Such action can only serve to reinforce employees' fear that they will lose employment if they persist in union activity.' [Consec Security, 325 NLRB 453, 454 (1989), enfd. 185 F.3d 862 (3d Cir. 1999).] In view of the severity and unit-wide scope of the Respondent's actions, as well as the small size of the unit, comprising 13 employees who work in close proximity to one another, the Respondent's unlawful conduct would predictably have a severe and lasting coercive effect on each unit employee.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Theatrical Stage Employees Local 720; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Las Vegas, May 28-29 and July 1-2, 1997. Adm. Law Judge Albert A. Metz issued his decision Sept. 18, 1997.

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Fansteel VR/Wesson (9-CA-36083; 332 NLRB No. 38) Lexington, KY Sept. 29, 2000. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Gary Vinegar; and violated Section 8(a)(1) by threatening employees with plant closure if Teamsters Local 651 organizes the shop, telling an employee that he is being harassed because of his union activity, and promising employees benefits in order to discourage union activity. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Teamsters Local 651; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Lexington, Jan. 5-7, 1999. Adm. Law Judge Nancy M. Sherman issued her decision Dec. 1, 1999.

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Woodman's Food Markets (30-RC-5935; 332 NLRB No. 48) Kenosha, WI Sept. 29, 2000. The Board, in determining whether an employer has substantially complied with the Excelsior requirements, will consider the number of names omitted from the Excelsior list as a percentage of the electorate and other factors, including the potential prejudicial effect on the election as reflected by whether the omissions involve a determinative number of voters and the employer's reasons for omitting the names. After reexamining its prior approach in deciding whether an employer's noncompliance with the Excelsior rule warranted setting aside an election, i.e., looking to whether, under the circumstances of a particular case, the employer has "substantially complied" with the Excelsior requirements, the Board said: [HTML] [PDF]

We find this approach--which focuses solely on the percentage of omissions relative to the number of employees in the unit--fails to adequately effectuate the purposes of the Excelsior rule. Accordingly, while we will continue to consider the percentage of omissions, we will consider other factors as well, including whether the number of omissions is determinative, i.e., whether it equals or exceeds the number of additional votes needed by the union to prevail in the election, and the employer's explanation for the omissions.

With respect to whether the omissions involve a determinative number of voters, we note that the Board's Excelsior policy was designed to enhance the availability of information and arguments both for and against union representation to employees so that they might render a more informed judgment at the ballot. Thus, the proper focus in determining whether an employer has complied with the requirements of the Excelsior rule should be on 'the degree of prejudice to these channels of communication, and not the degree of employer fault.' Avon Products, 262 NLRB 46, 48 (1982). Obviously, the potentially prejudicial effect on the election is most clear where the number of omissions may have compromised the union's ability to communicate with a determinative number of voters. To ignore this circumstance, therefore, is not only inconsistent with the rule's purpose but makes little sense. Accordingly, we overrule our prior cases to the extent they have done so and hold that whether omissions involve a determinative number of names must be considered in determining whether to set aside the election.

With respect to the employer's explanation for the omissions, we note that omissions may occur, notwithstanding an employer's reasonable good-faith efforts to comply, due to uncertainties about who is an eligible unit employee or other factors. Thus, we will consider the employer's explanation for the omissions.

Turning to the instant case, the Excelsior list originally submitted by the Employer on September 8, 1997 omitted the names of 12 eligible employees. Four of the names were omitted based on the Employer's admittedly incorrect interpretation of the payroll eligibility requirement. The Employer's human resources representative, Kathy Klein, testified that the remainder of the omitted names "could have been [the result of] errors within the payroll department." The Employer submitted another list on September 21 or 22, which deleted the names of some employees who had been terminated since the September 8 list, but it still omitted the l2 eligible employees.

Although the Board found that the percentage of omissions was relatively small, and standing alone, might not warrant setting aside the election, it found that the Union "may have suffered substantial prejudice" by its inability to communicate with the l2 employees since their ballots could have affected the election results. The Board wrote: "We recognize that the Union lost the election by 13 votes. However, in view of the additional challenged voters, David Keesey and Theresa Keesey (whose names were also omitted from the eligibility list because the Employer believed they were supervisors), the l2 omitted names could be determinative in this case." The Board found that the Employer failed to present a legally sufficient justification for its omission of the l2 names.

The Board remanded the proceeding to the Regional Director for a determination as to the Keeseys' eligibility. If they are ineligible, the omitted names are not determinative, and the results of the election should be certified. If the Keeseys are eligible voters, the omission of the 12 names from the Excelsior list could have affected the outcome of the election and the direction of a second election is warranted.

(Chairman Truesdale and Members Fox, Liebman, and Hurtgen participated.)

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Chairman Truesdale and Member Hurtgen reversed the judge's finding that the Respondent violated Section 8(a)(3) and (1) by suspending Tony Orfield with a final warning and later discharging him. Assuming arguendo that the judge correctly found that a prima facie case was established, they concluded that the Respondent successfully rebutted it by showing that it would have taken the same actions against him because he twice negligently damaged the Respondent's property in disregard of established safety practices. Member Fox disagreed.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charged filed by Food and Commercial Workers Local 400; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Bristol, Nov. 5-7, 1997 and April 6-9, 1998. Adm. Law Judge Pargen Robertson issued his decision August 5, 1998.

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Summer's Living Systems, Inc., et al. (7-CA-38546(1), et al.; 332 NLRB No. 22) State of Michigan Sept. 25, 2000. The Board affirmed the administrative law judge's decision that the Respondents' refusal to recognize and bargain with the UAW and AFSCME in 1996 and thereafter violated Section 8(a)(5) and (1) of the Act. [HTML] [PDF]

Respondent Adult Learning Systems provides group home services to mentally disabled and mentally ill persons in Michigan. The other Respondents provide personal care and support services to handicapped individuals within the State of Michigan. Each of the Respondents operates as a joint employer with the Michigan Department of Mental Health (DMH). In all the cases except Case 7-CA-38863, AFSCME sought to represent employees classified as direct care workers or program aides working for the named Respondents. In Case 7-CA-38863, the UAW sought to represent a unit of direct care workers employed by Respondent Adult Learning Systems. Both Unions previously filed individual representation petitions with the Michigan Employment Relations Commission (MERC) seeking separate elections among the employees. The Unions won all the elections and the MERC issued certifications of representative. At the Unions' request, some of the Respondents agreed to bargain, but contingent upon DMH's participation. Others and DMH have refused to recognize and bargain with the Unions.

After the Board's issuance of Management Training Corp., 317 NLRB 1355, the Michigan Court of Appeals determined that MERC's jurisdiction over petitions seeking to represent employees of group home providers with contractual ties to DMH was pre-empted by the NLRA. In Management Training Corp., the Board overruled Res-Care and expanded its jurisdiction to include certain private employers who have close ties to exempt government entities. The Unions in 1996 demanded bargaining with the Respondents alone under the NLRA after MERC's decision.

The Board found that the judge correctly applied its comity policy and affirmed his findings that (1) the state-conducted elections reflect the true desires of the affected employees; (2) there was no showing of election irregularities; and (3) there was no substantial deviation from due process requirements. The removal of joint employer DMH from the bargaining table does not relieve the Respondents from their bargaining obligation, the Board held, in agreement with the judge.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed by AFSCME and UAW; complaint alleged violation of Section 8(a)(1) and (5). Hearing held in Detroit, Jan.29-30, 1997. Adm. Law Judge John H. West issued his decision Jan. 9, 1998.

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Beverly Health and Rehabilitation Services and its wholly owned subsidiary, Beverly Enterprises-Pennsylvania, d/b/a Grandview Health Care Center (6-CA-27342, et al.; 332 NLRB No. 26) Fort Smith, AR Sept. 27, 2000. The Board found that the Respondent unlawfully implemented facially invalid disciplinary rules 1.4 and 1.6 at all its facilities throughout the Commonwealth of Pennsylvania, except Caledonia Manor, and required that the Respondent rescind the rules and post a notice at all of its Pennsylvania facilities. It issued a separate notice to be posted at Caledonia Manor that does not order rescission of Caledonia Manor's rule 1.6. [HTML] [PDF]

The Board, citing Lafayette Park Hotel, 326 NLRB 824 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), found unlawful Respondent's rule 1.6, which bans the making of false or misleading statements. Rule 1.4 prohibits "[r]efusing to cooperate in the investigation of any allegation of patient (resident) neglect or abuse or any other alleged violation company rules, laws, or government regulations." The Board wrote: "The rule plainly permits employer conduct which would be a Johnnie's Poultry violation of the Act. It permits the employer to coerce employees, under threat of discipline, to cooperate with an employer investigation of unfair labor practices. As such, the rule inhibits protected, concerted activity."

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed by Service Employees Local 585, et al.; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Pittsburgh, June 25 and 26, 1997. Adm. Law Judge William G. Kocol issued his decision Oct. 24, 1997.

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NRNH, Inc. d/b/a Jennifer Matthew Nursing and Rehabilitation Center (3-CA-21861; 331 NLRB No. 27) Rochester, NY Sept. 25, 2000. Affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire 36 bargaining unit employees of the predecessor employer, Nortonian Nursing Home, because they were represented by SEIU District 1199; violated Section 8(a)(1) by telling employees that they would be represented by a different union; and violated Section 8(a)(5) by refusing to recognize and bargain with District 1199 and setting initial terms and conditions of employment. [HTML] [PDF]

Member Hurtgen, dissenting in part, found that the Respondent lawfully set its initial terms and conditions of employment. He adheres to the view as stated in NLRB v. Burns Security Services, 406 U.S. 272 (1972), that a successor employer has a right to set its initial terms and conditions of employment. He also believes that the right is not lost because the successor violated Section 8(a)(3) by unlawfully refusing to hire employees of the predecessor.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charge filed by SEIU District 1199; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Rochester, Aug. 30-Sept. 3, 1999. Adm. Law Judge Arthur J. Amchan issued his decision Nov. 17, 1999.

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United States Postal Service (2-CA-29200(P), et al.; 332 NLRB No. 28) Newburgh, NY Sept. 26, 2000. The Respondent discharged Pilar Livingston, Denine Cooper, Roger Bowden, Susan Martinez, Brenda Bellamy, and Joseph Wilson, Jr. because of their protected concerted activities in violation of Section 8(a)(3) and (1) of the Act, the Board held in agreement with the administrative law judge. The judge found that the employees clearly acted together in invoking their contractual right when they refused to work overtime one night because they were not given at least one hour's notice beforehand. He rejected the Respondent's argument that the Board should defer to an arbitrator's decision finding that the discriminatees were justly terminated for "insubordination" when they refused to work the overtime. The arbitrator's decision is wrong and repugnant to the Act, the judge concluded. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Pilar Livingston, Denine Cooper, Roger Bowden, Susan Martinez, and Brenda Bellamy, individuals and Postal Workers Mid-Hudson Area Local 3722; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, May 12-13, 1998. Adm. Law Judge Howard Edelman issued his decision Sept. 28, 1998.

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Paul Mueller Co. (17-CA-17623, et al.; 332 NLRB No. 29) Springfield, MO Sept. 25, 2000. Chairman Truesdale and Member Liebman found, contrary to the judge, that the Respondent violated Section 8(a)(1) of the Act by threatening two former strikers with closer supervision because of their union activities. "[T]he strikers' exercise of their lawful right to strike did not justify singling them out for closer supervision on their return to work, whether or not a strike continues," they explained. Chairman Truesdale and Member Liebman found no evidence of a reasonable objective basis for fearing that the returning strikers would not perform their jobs as they had in the past or would attempt to disrupt the productivity of coworkers. Member Hurtgen would dismiss the allegation. He found that "the challenged statements to the strikers were, as found by the judge, 'reasonable understandable precaution[s] against the returning strikers disrupting production in support of the remaining strikers.'" [HTML] [PDF]

The Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally transferring the bargaining unit work of assembling several stainless steel tanks (used for wine production) to another plant, without bargaining with Sheet Metal Workers Local 208. The Respondent did not contest the judge's finding that the work transfer involved a mandatory bargaining subject, but it contested the judge's finding that the management-rights provision in the parties' expired collective-bargaining agreement did not provide the required clear and unmistakable waiver of the Union's right to bargain.

Chairman Truesdale and Member Liebman found no need to address the issue, noting that pursuant to well-established precedent the Respondent cannot rely on the management rights provision to justify its unilateral action after the expiration of the contract containing that provision. Member Hurtgen would find the violation because the Respondent's conduct was not shown to be consistent with past practice.

The Board severed and remanded to the judge for further proceedings the timely reinstatement issue in Case l7-CA-18688, i.e., whether the Respondent unlawfully delayed reinstatement for 89 unfair labor practice strikers who made an unconditional offer to return on May 22, 1996.

In the absence of exceptions, the Board adopted the judge's finding that the Respondent violated Section 8(a)(5) by its unilateral implementation of the Med-Pay health insurance plan. It required the Respondent, on request of the Union, to restore the health insurance program in existence prior to the implementation of the Med-Pay plan.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Sheet Metal Workers Local 208; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Springfield, Aug. 19-21, 1996. Adm. Law Judge Marion C. Ladwig issued his decision May 21, 1997.

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Paul Mueller Co. (17-CA-18912, et al.; 332 NLRB No. 30) Springfield, MO Sept. 25, 2000. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(5), (3) and (1) of the Act by refusing to meet and confer about grievances filed by the Union, refusing to notify the Union, dealing directly with employees concerning proposed changes in their hours and days of work, and refusing to promptly reinstate unfair labor practice strikers to their former positions upon their unconditional offer to return to work. [HTML] [PDF]

The Respondent excepted to the judge's finding that it violated Section 8(a)(5) by unilaterally implementing changes in the list of preferred providers under the Med-Pay health care delivery system. It did not except to the judge's finding in another case involving the same parties, that the Respondent violated Section 8(a)(5) by its unilateral implementation for the entire Med-Pay program or to the remedy requiring the Respondent, on request of the Union, to restore the health insurance program in existence prior to the implementation of the entire Med-Pay program. The Board adopted the unfair labor practice finding and remedy in Paul Mueller Co., 332 NLRB No. 29 (Sept. 25, 2000).

The Board found that litigation of the unfair labor practice issue in the other case obviated the need for an additional unfair labor practice finding and remedy in this case. It deleted remedial provisions relevant to the issue from the judge's recommended Order and Notice.

(Members Fox, Liebman, and Hurtgen participated.)

Charge filed by Sheet Metal Workers Local 208; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Springfield on Nov. 21, 1997. Adm. Law Judge Albert A. Metz issued his decision Jan. 21, 1998.

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Bultman Enterprises, Inc. d/b/a Le Rendezvous Restaurant, et al. (24-CA-7129; 332 NLRB No. 31) San Juan, PR Sept. 25, 2000. The Board found that the Respondent Taber Partners I d/b/a Ambassador Plaza Hotel & Casino, A Radisson Plaza Hotel (the Hotel) is jointly liable for the violations of Section 8(a)(3) and (1) of the Act committed by Respondent Bultman, and it entered a remedial Order so providing. [HTML] [PDF]

The Board found at 323 NLRB 445 (1997) that Respondent Bultman, a successor to the Hotel, violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with HEREIU Local 610, failing to supply the Union with requested information, unilaterally lowering the restaurant employees' wages, and departing from the terms of the Union's collective-bargaining agreement with the Hotel. It found also that Respondent Bultman violated Section 8(a)(3) and (1) by refusing to consider for employment and refusing to hire a substantial portion of the Hotel's restaurant employees because of their union affiliation. The Board severed for further consideration the issues of the joint employer status of the Hotel and its joint liability for Bultman's unfair labor practices in light of the oral argument held in the then pending cases of Jeffboat Division, American Commercial & Marine Services Co., and T.T.& O Enterprises, Inc., 9-UC-405; M.B. Sturgis, Inc., 14-RC-11572; and Value Recycle, Inc., 33-RC-4042. In M.B. Sturgis, Inc., 331 NLRB No. 173 (2000), the Board declined to reexamine or change extant Board precedent concerning the joint employer standard.

In this supplemental decision, the Board found that the judge correctly applied that precedent to the facts of this case in concluding that the Hotel and Bultman are joint employers. The General Counsel does not seek a finding that the Hotel violated its duty to bargain or a remedial bargaining order that runs to the Hotel as well as Bultman.

(Chairman Truesdale and Members Fox and Liebman participated.)

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Yellowstone International Mailing (13-RC-20399; 332 NLRB No. 35) Elk Grove Village, IL Sept. 27, 2000. The Board concluded that the Employer's current workforce is a substantial and representative complement of employees, notwithstanding the Employer's anticipated expansion of its operations, such that an immediate election is appropriate. It reversed the Regional Director's decision and order which found that the processing of the petition filed by Manufacturing, Production 7 Service Workers Local 24 is premature; and remanded the case to the Regional Director for further action. The Board wrote: [HTML] [PDF]

[E]ven assuming that the Employer's projected expansion by the first quarter of 2001 is not too indefinite, speculative, or remote in time to serve as the standard against which to measure the present complement of employees, and assuming that all of the employees hired as a result of the expansion would be included in the unit, the Employer's current unit workforce (113 employees) would constitute 38 percent of the ultimate projected workforce of approximately 300 employees at the new facility. Additionally, as it is undisputed that there will be no new job categories created by the Employer, the current employees are employed in 100 percent of the ultimate job classifications.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Professional Facilities Management (12-RC-8043; 332 NLRB No. 40) Coral Springs, FL Sept. 26, 2000. The Board, citing M.B. Sturgis, Inc., 331 NLRB No. 173 (2000), found that there is no statutory or policy impediment to a unit where, as here, a petitioner seeks to represent an appropriate unit of the employees of a single "user" employer without regard to whether the unit employees are jointly employed by another employer. The Board wrote: [HTML] [PDF]

Here, the Petitioner seeks to represent a bargaining unit consisting only of the employees of a single user employer. In these circumstances, as with a petition seeking a unit only of the employees of a single supplier employer, we will not require the naming of all potential joint employers and the litigation of their potential relationship with the user employer. For the same reasons we cited in M.B. Sturgis, we conclude that the absence of one of the alleged joint employers at the bargaining table does not destroy the ability of the named employer (here, the user) to engage in effective bargaining with respect to employees to the extent it controls their terms and conditions of employment. Id., slip op. at 11 fn. 22. A petitioner may, therefore, seek to bargain with and name in its petition only the single user employer.

The Regional Director had found that the Employer and Easy Staff, Inc., d/b/a Employee Services (ES) were not joint employers of the petitioned-for employees, that ES was not denied adequate notice and opportunity to be heard at the hearing, and that a unit of stagehands, excluding maintenance and operations employees, is an appropriate unit. The Board found it unnecessary to rule on the joint employer and due process findings because the Petitioner (the Theatrical Stage Employees International) seeks to represent employees of a statutory employer in an appropriate unit. Having concluded that the status of ES as a joint employer is no longer a relevant issue in the circumstances of this case, the Board found it is unnecessary to reach the due process arguments raised by the Employer.

(Chairman Truesdale and Members Fox and Liebman participated.)

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Labor Ready, Inc. (9-CA-36223, 36395; 332 NLRB No. 33) Huntington and South Charleston, WV Sept. 27, 2000. The Board agreed with the administrative law judge that Donald Huff, Thomas Williams, Steve Montoney, and James Blevins were bona fide job applicants. It agreed also that the Respondent violated Section 8(a)(1) of the Act by refusing to allow the job applicants to solicit union authorization cards from other employees and job applicants during their nonworking time and in nonwork areas of its Huntington and Charleston offices, calling the police to remove them from its offices for engaging in such conduct, and telling job applicants not to sign union authorization cards; and violated Section 8(a)(3) and (1) by refusing to refer the four men for employment because of their union activities. The Board wrote: [HTML] [PDF]

In agreeing with the judge's conclusion that the four men were not subject to that portion of the Respondent's no-solicitation policy applicable to nonemployees, we emphasize our agreement with his finding that they were rightfully on the Respondent's premises pursuant to Respondent's own policy that persons who had submitted applications, passed the safety test, and signed the referral list must be physically present in the referral office in order to be eligible for referrals. We further emphasize the judge's finding that the area in which the four were soliciting is not a working area for the employeee applicants but serves primarily as a waiting room and gathering place for them as they wait for referrals to the various jobsites where their actual work is to be performed. Finally, we note that here, as in a prior case against the Respondent, Labor Ready, Inc., 327 NLRB No. 179 (1999), there is no evidence that the solicitation activity in what was a nonwork area for the employee applicants created a disturbance or otherwise interfered with the work going on in the areas adjacent to the waiting area.

Member Hurtgen emphasized his "agreement with the judge's finding that, having completed the process mandated by the Respondent, including filling out the required forms and placing their names on the Respondent's referral list, the four men ceased being mere applicants and became employees with an expectation of receiving a work assignment as soon as their names were reached on the list."

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charge filed by Tri-State Building and Construction Trades Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Huntington, Jan. 14-15, 1999. Adm. Law Judge George Aleman issued his decision July 12, 1999.

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P H Nursing Home (26-CA-17726, et al., 26-RC-7849; 332 NLRB No. 21) Jackson, MS Sept. 28, 2000. The Board agreed with the administrative law judge that the Respondent engaged in objectionable conduct that interfered with an election held in Case 26-RC-7849 and violated Section 8(a)(3) and (1) of the Act. Specifically, the Respondent unlawfully suspended and discharged Felicia Jackson, implemented and enforced an unlawful no-solicitation/no distribution rule, threatened employees with discipline for passing out union literature, threatened employees with adverse changes in working conditions if they supported Food and Commercial Workers Local 1529, and interrogated an employees about her union activity. In agreeing with the judge's finding that a bargaining order is not warranted in this case, the Board did not rely on the closeness of the vote in the election or the fact that no unfair labor practices were committed in the weeks preceding the election. The Board set aside the election and directed a second election. [HTML] [PDF]

Member Hurtgen, dissenting in part, disagreed that the Respondent violated Section 8(a)(1) by threatening employee Rowena McLain with adverse working conditions if the Respondent were unionized, finding that Supervisor Riddley was "simply giving her view as to the role that the Union would play as a bargaining representative."

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Food and Commercial Workers Local 1529; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Jackson, April 14-16, 1997. Adm. Law Judge J. Pargen Robertson issued his decision July 8, 1997.

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Aqua Cool, a Division of Ionics, Inc. (1-CA-34338, 1-RC-20467; 332 NLRB No. 7) Ludlow, MA Sept. 18, 2000. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act and engaged in objectionable conduct by, among other things, soliciting grievances and promising to remedy them, hiring a warehouse worker to perform tasks formerly assigned to drivers, and ceasing to harass employees for taking sick leave. Affirming the judge's recommendation, the Board set aside the results of an election held on July 11, 1996. Contrary to the judge, it concluded that the 8(a)(1) violations can be adequately remedied by the Board's customary notice and cease-and-desist order and that a Gissel bargaining order is not warranted. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). [HTML] [PDF]

In concluding that the Respondent threatened employees with loss of benefits, that it would bargain from scratch, and that election union representation would be futile, Chairman Truesdale and Member Liebman found that Vice President Kachadurian's words, both alone and in context establish the violation. Member Hurtgen, dissenting on this issue, found merit in the Respondent's contention in exceptions that Kachadurian's statements to employees Chris Martin, Billy Massey, Alan Tetrault, and Scott Stephenson were protected by Section 8(c) of the Act and that they are not objectionable.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Teamsters Local 404; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Springfield, Oct. 30-31, 1996. Adm. Law Judge Arline Pacht issued her decision Jan. 3, 1997.

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Four Seasons Solar Products Corp. (29-RC-9061; 332 NLRB No. 9) Holyoke, NY Sept. 15, 2000. Reversing the Regional Director, the Board held that the collective-bargaining agreement between the Employer and the Intervenor (Teamster Local 707) constituted a bar to the instant representation petition filed 53 days prior to the expiration of the contract. The Petitioner (Amalgamated Local 137) is seeking to represent all production, maintenance, and shipping and receiving employees at the Employer's Holyoke, New York facility. [HTML] [PDF]

The Regional Director concluded that the contract appeared to require the payment of assessments as a condition of employment. Contrary to the Regional Director, the Board held that "the contract language regarding certain payments to the Union does not operate to remove the contract bar to the instant petition, since the contract contains no express requirement that an employee pay assessments as a condition of employment." It disagreed also with the Regional Director's findings that the contract forfeited its bar quality because it was retroactively effective and thereby withheld from nonmember incumbent employees the 30-day grace period within which to join the Union as guaranteed by Section 8(a)(3) of the Act; and that the contract forfeited its bar status on three grounds related to articles III and V, which were not litigated during the representation hearing.

(Chairman Truesdale and Members Fox and Liebman participated.)

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Coventry Health Center (1-RC-20761; 332 NLRB No. 13) Coventry, RI Sept. 14, 2000. Members Fox and Liebman reversed the Acting Regional Director's exclusion of the Registered Nurse (RN) charge nurses from the unit found appropriate and concluded that charge nurses' role in the Employer's evaluation procedure does not establish that they are supervisors within the meaning of Section 2(11) of the Act. Member Hurtgen, dissenting, agreed with the Acting Regional Director that the charge nurses are supervisors. Teamsters Local 64 seeks to represent a unit of all RNs employed by the Coventry Health Center at its 344-bed nursing home. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

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T.K. Productions, Inc. (28-CA-15522; 332 NLRB No. 14) Phoenix, AZ Sept. 18, 2000. On recommendation of the administrative law judge, the Board dismissed complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by withdrawing an offer to hire Sean Walby because he was not a member of Teamsters Local 104; and violated Section 8(a)(1) in several ways, including coercive interrogation about Walby's union affiliation and saying he would not be hired unless he was a member of Local 104. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Sean Walby, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Phoenix, Dec. 7-8, 1999. Adm. Law Judge James M. Kennedy issued his decision Feb. 22, 2000.

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Burrows Paper Corp. (26-CA-19035; 332 NLRB No. 16) Pickens, MI Sept. 18, 2000. The Board granted the General Counsel's motion for summary judgment and found that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from Pace Local 678. The Board found in September 2000 that the Respondent failed to bargain in good faith with the Union and ordered a 1-year extension of the Union's certification year, running from the date the Respondent begins to negotiate in good faith. 332 NLRB No. 15 (Case 26-CA-18552). [HTML] [PDF]

In this decision, Chairman Truesdale and Member Fox noted that the Respondent withdrew recognition before the extended certification year had run. They wrote: "In the absence of unusual circumstances, not present here, this action constituted a challenge by the Respondent to the Union's majority status at a time when the Respondent was not free to mount such a challenge."

Member Hurtgen did not find the violation based on an extended certification year. Rather, he emphasized that the withdrawal occurred while there were substantial unremedied 8(a)(5) violations. He also found that "any disaffection from the Union was causally connected to the antecedent unfair labor practices which constituted a general refusal to bargain" and that the Respondent could not rely on it as a basis for withdrawing recognition.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charge filed by Pace Local 678; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgement March 16, 1999.

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Tree of Life, Inc. d/b/a Gourmet Award Foods, Northeast (3-CA-21569; 332 NLRB No. 24) Albany, NY Sept. 20, 2000. The Board remanded to the administrative law judge the issue of whether the Respondent unlawfully failed to apply provisions of its collective-bargaining agreement with Teamsters Local 294 to temporary employees supplied by Accustaff and other referral agencies performing unit work at the Respondent 's Albany, New York facility. The judge will consider the issue, which he dismissed, consistent with the Board's decision in M.B. Sturgis, Inc., 331 NLRB No. 173. In M.B. Sturgis, the Board held that employees obtained from a labor supplier may be included in the same bargaining unit as the permanent employees of the employer to which they are assigned, when the supplied employees are jointly employed by both employers. [HTML] [PDF]

No exceptions were filed to the judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union requested information that was relevant and necessary to administer the parties' collective-bargaining agreement. The Board severed and adopted the judge's uncontested finding because it does not implicate its decision in M.B. Sturgis.

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Teamsters Local 294; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Albany on Nov. 16, 1999. Adm. Law Judge Bruce D. Rosenstein issued his decision March 9, 2000.

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Carpenters Local 370 (Eastern Contractors Association, Inc.) (3-CB-6913; 332 NLRB No. 25) Albany, NY Sept. 20, 2000. The Board dismissed the complaint, finding that the Respondent was not legally obligated to provide Charging Party John Newell with information he requested regarding the Respondent's operation of a nonexclusive hiring hall. It wrote in reversing the administrative law judge's finding that the Respondent violated Section 8(b)(1)(A): [HTML] [PDF]

The complaint alleged, and the judge ultimately found, that the Respondent's denial of information to Newell was 'arbitrary and capricious.' This terminology is regularly associated with a union's failure to meet its duty of fair representation. However, as noted, the judge found here, and the General Counsel does not dispute, that under Superior Asphalt, supra, no duty of fair representation attached to the Respondent's operation of its nonexclusive hiring hall. Accordingly, the duty of fair representation does not provide a basis for concluding that the Respondent's action (or, better stated, its inaction) toward Newell violated Section 8(b)(1)(A) of the Act. [Teamsters Local 460 (Superior Asphalt), 300 NLRB 441 (1990).] We find that the General Counsel failed to establish that the Respondent ignored Charging Party Newell because Newell engaged in activities protected by Section 7 of the Act. We further find that the Respondent did not owe a duty of fair representation to Charging Party Newell regarding its operation of a nonexclusive hiring hall.

(Members Fox, Liebman, and Hurtgen participated.)

Charge filed by John Newell, Jr., an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Albany on Sept. 16, 1996. Adm. Law Judge George Carson issued his decision Oct. 25, 1996.

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Altorfer Machinery Company, Lift Truck Division (33-CA-12112, et al.; 332 NLRB No. 12) Davenport, IA Sept. 20, 2000. The Board adopted the administrative law judge's finding that the Respondent had violated the Act by, among other things, engaging in surface and bad faith bargaining, prohibiting employees from communicating with each other about the Union, and discharging an employee for misconduct while striking. The Board concluded that the Respondent's conduct in its entirety reflected an intention on its part either to avoid reaching an agreement or to reach one which would essentially eliminate the Union's representational role. [HTML] [PDF]

In a separate concurring opinion, Member Hurtgen indicated there were certain factors involved in the Respondent's negotiating positions that he would not consider indicia of bad faith bargaining, such as making initial proposals which - if accepted - would have resulted in the employees receiving lesser benefits than they received before the advent of the Union.

(Chairman Truesdale and Members Fox and Hurtgen participated)

Charges filed by Teamsters Local 371; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Davenport on Jan. 27-30 and various dates in March 1998. Adm. Law Judge William J. Pannier III issued his decision Dec. 8, 1998.

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Nelson Electrical Contracting Corp., d/b/a Nelcorp (3-CA-19035, et al.; 332 NLRB No. 17) Endwell, NY Sept. 23, 2000. In this salting case, the Board agreed with the administrative law judge's finding that the General Counsel met his initial evidentiary burden of showing that the union affiliations of the applicants were a motivating factor in the Respondent's refusal to consider them for hire and refusal to hire them. The panel relied on the fact that all of the employees who were refused permission to file applications were wearing union insignia at the time that they applied. The Board also relied on the judge's finding of animus as established by (1) the comments of foreman Alan Winters, who told an employee that the Respondent did not want to hire "anybody union"; (2) the comments of New York project manager Andrew Stebner to employee Douglas Nelson advising him not to talk to striking employees, or he would "get in trouble;" (3) the fact that none of the applications in which the applicants showed a current, active Union involvement was considered; and (4) the Board's prior finding of animus in Nelcorp Inc., 316 NLRB 625 (1995). [HTML] [PDF]

Citing FES, 331 NLRB No. 20, the Board adopted the judge's finding of a discriminatory refusal to hire, pointing out that the applicants actually applied for jobs and were qualified for jobs for which the Respondent was hiring. Specifically, in September 1994, the Respondent won a contract for work at a site in Liberty, NY.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Electrical Workers (IBEW) 325 and 363; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Binghamton, June 25-26 and Aug. 19-20, 1996. Adm. Law Judge Steven Davis issued his decision April 21, 1997.

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Eckert Fire Protection, et al. (25-CA-24505, 24871; 332 NLRB No. 18) Cincinnati, OH, Greenwood, IN, and Lexington, KY Sept. 21, 2000. The Board rejected the General Counsel's exceptions to the administrative law judge's dismissal of numerous refusal-to-hire and/or consider allegations for failing to show, under FES, 331 NLRB No. 20, that the employer excluded applicants from the hiring process or was hiring at the time of the alleged unlawful conduct. The Respondents had a policy that they would not consider job applicants over 30 days old on the ground that they were not "fresh." There was no evidence that any hiring took place during any 30-day period during which the applications submitted by the alleged discriminatees were "fresh" and the Respondents were in an "active" hiring mode. Accordingly, the Board affirmed the judge's finding dismissing the complaint. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated)

Charges filed by Road Sprinklers Local 669; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Indianapolis, IN on Feb. 5-7 and Feb. 25-26, 1997. Adm. Law Judge Earl E. Shamwell, Jr. issued his decision April 24, 1998.

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Mid-Mountain Foods, Inc. (11-CA-17049-2, et al.; 332 NLRB No. 19) Abingdon, VA Sept. 21, 2000. The Board agreed with the administrative law judge's recommendation to set aside an election that took place Aug. 1, 1996 (77 votes for the Union, 126 against, 9 challenges), given the Respondent's numerous violations of the Act--including interrogating employees about their union sentiments and threatening plant closure if they voted for union representation. The majority of Chairman Truesdale and Member Hurtgen found merit in General Counsel and Charging Party exceptions to the judge's finding of no violation for the Respondent's supervisors removal of prounion literature from employees' break areas. [HTML] [PDF]

Concurring in part and dissenting in part, Member Liebman disagreed with her colleagues and the judge with respect to three additional violations. She would find the Respondent violated the Act by (1) displaying a banner in the warehouse that stated: "Vote No, It's Your Job;" (2) refusing to permit employees to show a prounion video in the breakroom on non-worktime; and (3) by soliciting employees to revoke their authorization cards.

On the video broadcast issue, Member Liebman said "the Board should not permit employer restrictions on playing videotaped messages on nonworktime in a nonwork area, absent special circumstances, not present here, related to production or discipline. Such a restriction unduly limits employees' rights to communicate with each other about unionization and violates Section 8(a)(1) of the Act." The majority stated:

[T]here is no statutory right of an employee to use an employer's equipment or media. For example, there is no right to use an employer's bulletin board. Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983); Container Corp., 244 NLRB 318 fn. 2 (1979), enfd. 649 F.2d 1213 (6th Cir. 1981) (per curiam). Nor is there a statutory right of an employee to use an employer's telephone for personal or nonbusiness purposes, such as union organizing matters. Union Carbide Corp., 259 NLRB 974, 980 (1981), enfd. in relevant part 714 F.2d 657, 663-664 (1983). Similarly, the Board has held that employees are not entitled to use an employer's public address system to communicate their union views. See, e.g., The Heath Co., 196 NLRB 134 (1972). From these cases, it appears equally clear that the Union's employee supporters do not have a statutory right to show the video, especially since it has not been established that the Respondent permitted employees to show other videos.

(Chairman Truesdale and Members Liebman and Hurtgen participated)

Charges filed by Food & Commercial Workers [UFCW] Local 400; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Bristol on Feb. 10-14, and Abingdon on March 10-14, 1997. Adm. Law Judge Keltner W. Locke issued his decision Dec. 22, 1997.

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(Chairman Truesdale and Members Fox and Hurtgen participated.)

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Northside Electrical Contractors, Inc. (25-CA-24492, 24961; 331 NLRB No. 166) Elkhart, IN Aug. 31, 2000. The Board adopted the administrative law judge's findings that the Respondent (1) discriminatorily laid off two employees in 1996, and (2) refused to hire three union applicants for legitimate reasons, consistent with Thermo Power, 331 NLRB No. 20 (2000)--which issued after the judge's decision. The Board declined to reexamine Wireways, Inc., 309 NLRB 245 (1992), noting in a footnote that "[n]either the General Counsel nor the Charging Party has argued that the Respondent's policy of not hiring applicants with high current wage histories was itself discriminatorily motivated." The Union had filed an amicus brief arguing that such a policy is inherently destructive of employees' Section 7 rights. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated)

Charges filed by Electrical Workers (IBEW) Local 153; complaint alleged violation of Section 8(a)(1) and (3). Hearing at South Bend, June 2-4, 1997. Adm. Law Judge Jerry M. Hermele issued his decision Sept. 19, 1997.

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Boydston Electric, Inc. (28-CA-13447; 331 NLRB No. 194) Albuquerque, NM Aug. 25, 2000. The majority opinion by Members Fox and Liebman affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by threatening an employee, Dan Miano, with termination for soliciting for the Union on nonworking time and by asking another employee, Larry Chavez, whether he had signed a union card and by creating the impression that it was engaged in surveillance of its employees' union other protected activities by asking Chavez whether he was going to follow in Miano's footsteps. Contrary to the judge, the majority also found that the Respondent violated Section 8(a)(1) by interrogating Miano and threatening him with unspecified reprisals for his union activities, and Section 8(a)(3) by discharging him for his union activity. It further found, contrary to the judge, that the employees engaged in an unfair labor practice strike and therefore the Respondent violated Section 8(a)(3) and (1) by failing and refusing to reinstate two former striking employees after their unconditional offer to return to work, and by failing to hire two job applicants because of their union affiliation. [HTML] [PDF]

In dissent, Member Brame would agree with the judge and not find the Respondent's remarks to Miano to be threatening or coercive. He noted that supervisor Jaramillo's comments were made to Miano "in the context of his own personal experience with the Union and expressed his own personal opinion about the practical difficulties for employees seeking union representation where the job was nonunion and had been bid that way."

(Members Fox, Liebman and Brame participated)

Charge filed by Electrical Workers (IBEW) Local 611; complaint alleged violation of Section 8(a)(1). Hearing at Albuquerque, Jan. 21-24, May 21-24 and July 21-23, 1997. Adm. Law Judge Mary Miller Cracraft issued her decision April 10, 1998.

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CalMat Co. (21-CA-30573, 31336; 331 NLRB No. 141) Los Angeles, CA Aug. 25, 2000. Reversing the administrative law judge, the Board found that the Respondent did not fail and refuse to provide the Union with requested relevant information in its possession or control, and that the Respondent lawfully implemented changes in its employees' terms and conditions of employment because, prior to these implementations, the bargaining parties had reached impasse on the critical issue of the pension plan in February 1995. The impasse affecting the pension plan led to a complete breakdown in negotiations and an overall impasse between the parties, the panel held. The judge had concluded that the Respondent's alleged failure to supply the Union with the requested information constituted a serious unfair labor practice, which precluded any impasse. The judge therefore did not determine whether an impasse regarding any of the bargaining issues existed. However, he speculated that "lack of impasse would be probable." [HTML] [PDF]

As stated by the Board:

The impasse affecting the pension plan led to a complete breakdown in negotiations and an overall impasse between the parties. Having reached a good-faith impasse with the Union, the Respondent lawfully implemented bargaining proposals contained in its last, best, and final offer. In light of these reversals, we also reverse the judge's conclusions that the strike was an unfair labor practice strike and the striking employees are unfair labor practice strikers.

(Members Liebman, Hurtgen, and Brame participated)

Charges filed by Operating Engineers Local 12; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Los Angeles, Sept. 25-26, and Oct. 28-31, 1996. Adm. Law Judge Michael D. Stevenson issued his decision May 23, 1997.

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AVW Audio Visual (28-CB-4351; 332 NLRB No. 3) Las Vegas, NV Sept. 12, 2000. The Board reversed the administrative law judge's finding that the Respondent Union violated the Act by breaching its duty of fair representation when it permanently barred Charging Party Steven Lucas from using its exclusive hiring hall system in March 1995. Central to the Board's finding was the fact that Lucas was permanently expelled from the hall in May 1994 for 15 years of misconduct in relation to co-employees, employers, and clients. Dismissing the complaint, the Board agreed with the Union's argument that no breach occurred because the Union was not legally obligated to dispatch Lucas and reconsider his 1994 expulsion from its hiring hall system. [HTML] [PDF]

"The Respondent reasonably determined, in light of Lucas' history of disrupting jobs, that signatory employers would resist the continued use of the hiring hall if it continued to refer him for work, " the Board stated.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Steven Lucas, an individual; complaint alleged violation of 8(b)(1)(A) and (2). Hearing at Las Vegas Feb. 29, 1996. Adm. Law Judge Michael D. Stevenson issued his decision June 25, 1996.

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Kings Soopers, Inc. (27-CA-14882, et al.; 332 NLRB No. 4) Lakewood, Greely, and Bellevue, CO Sept. 13, 2000. In this proceeding, the Respondent excepted to the administrative law judge's finding that the Union is a labor organization. The Board found no merit in the Respondent's parallel exception in King Soopers, Inc., 332 NLRB No. 5 (2000), and no merit to the exception here. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Jenny Tilton, Lucinda Casados, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Denver beginning April 8, ending Aug. 3, 1999. Adm. Law Judge Jay R. Pollack issued his decision Jan. 14, 2000.

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Kings Soopers, Inc. (27-CA-16091, 16197; 332 NLRB No. 5) Denver, CO Sept. 13, 2000. Affirming the administrative law judge, the Board ruled that the Respondent violated the Act by refusing to recognize the Unions at store #86 after moving the operations from store #8 to store #86 on Dec. 9, 1998; unlawfully notifying employees that the new store #86 would be operated on a non-union basis; and unilaterally changing terms and conditions of employment under bargaining agreements with the Unions. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Bakery Workers Local 26; et al.; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Denver on April 7-8, 1999. Adm. Law Judge Jay R. Pollack his decision June 21, 1999.

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Makins Hats, LTD (2-CA-29591; 332 NLRB No. 1) New York, NY Sept. 13, 2000. The Board agreed with the administrative law judge's finding that the complaint against the Respondent, alleging it had violated the Act by withdrawing recognition from the Union and repudiating the Union Association agreement, should be dismissed. It disagreed with the judge's conclusion that the Respondent manifested an intent to be bound by group bargaining after its individual 1980 agreement expired. Instead, the Board relied on the judge's finding that the Respondent had never followed the Association agreements except on a "members only" basis, and that the Union must have been aware of this fact. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Millinery Workers Local 24-42H; complaint alleged violation Section 8(a)(1) and (5). Hearing at New York City June 25 - July 21and 22, 1997. Adm. Law Judge D. Barry Morris issued his decision Dec. 22, 1997.

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Sterling Lebanon Packaging Corporation (6-CA-27846; 331 332 NLRB No. 6) Jeannette, PA Sept. 12, 2000. The Board affirmed the administrative law judge's dismissal of the Union's complaint that the Respondent violated the Act by unilaterally making available to employees a third health benefit plan not contained in the collective bargaining agreement and by bypassing the Union in soliciting employees to enroll in the new plan. As explained by the Board in a footnote: [HTML] [PDF]

In dismissing the complaint, we observe that the General Counsel alleged that the Respondent failed and refused to bargain in good faith with the Union 'within the meaning of Section 8(d) of the Act' by unilaterally introducing a third health benefit plan (which we find, in agreement with the judge, was an HMO) in addition to the Indemnity Plan and the Keystone HMO Plan previously available under the contact. As explained in Mead Corp., 318 NLRB No. 201, 202 (1995), 'Section 8(d) of the Act provides that party which seeks to modify a term or condition of employment 'contained in' a current collective-bargaining agreement must obtain the consent of the other party before implementing the change.' Here, the General Counsel contends that art. 36. sec. 13, of the contract, which provides that '[e]mployees are entitled to enroll in a Health Maintenance Organization (HMO),' limits to one the number of HMOs that the Respondent may offer to its employees at any given time. Contrary to the General Counsel, we find that art. 36. sec. 13, is ambiguous and does not, on its face, preclude the Respondent from introducing employees to more than one HMO plan. In these circumstances, the burden was on the General Counsel to clarify the ambiguity by the introduction of extrinsic evidence. We find that the General Counsel has not met that burden here.

(Chairman Truesdale and Members Fox and Hurtgen participated)

Charges filed by Steelworkers Local 175G; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Pittsburgh, Feb. 28, 1997. Adm. Law Judge Martin J. Linsky issued his decision on July 10, 1997.

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Spring Industries, Inc. (26-CA-17084, et al.; 332 NLRB No. 10) Nashville, TN Sept. 13, 2000. Overruling Kokomo Tube, 280 NLRB 357 (1986), the Board ordered an election set aside based on a supervisor's threat of plant closure and adopted a rebuttable presumption that employer threats of plant closure are disseminated among employees. The majority opinion is by Chairman Truesdale and Members Fox and Liebman. Member Hurtgen dissented in part. [HTML] [PDF]

The majority relied on General Stencils, Inc., 195 NLRB 1109 (1972), for the proposition that the "hallmark" threat of plant closure would be presumed to be discussed by widely by employees. It stated:

Here the record establishes that [employee] Bauman discussed the threat of plant closure with 'everybody on break.' Consistent with the principle of General Stencils, it is reasonable to presume that this 'hallmark' threat, which would severely and equally affect all employees in the plant, was discussed more widely among employees than just those employees 'on break.' In other words, we presume that those employees in turn told other employees about the threat. Further, the Employer introduced no evidence to rebut this presumption.

Member Hurtgen would not overrule Kokomo Tube, stating that he would not presume that threats of plant closure (or other threats) are disseminated. "In my view, the question of whether an election should be set aside requires a fact-specific, case-by-case inquiry that does justice to the particular circumstances involved," he said. Member Hurtgen pointed out that the judge's recommendation to set aside the election was based on three statements made by low-level supervisors and that each statement was made to only one employee. He also noted the Union lost the election by 86 votes, with 8 challenged ballots. 6

(Chairman Truesdale, and Members Fox, Liebman and Hurtgen participated)

Charges filed by UNITE Local 2608; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing at Nashville, July 8-10, 1996. Adm. Law Judge Robert C. Batson issued his decision April 8, 1997.

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Bourne Manor Extended Health Care Facility (1-CA-36936, 36993; 332 NLRB No. 11) Bourne, MA Sept. 15, 2000. The Board adopted the administrative law judge's finding that the Respondent unlawfully suspended and then discharged employee Nancy Bjorkman because of her involvement in two organizing campaigns by the Union at the nursing home. The judge had found the reasons for disciplining her were pretextual (such as allegedly stealing two packages of disposable razors.) [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated)

Charges filed by Teamsters Local 59; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Boston, Dec. 6-8, 1999. Adm. Law Judge Wallace H. Nations issued his decision June 26, 2000.

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Burrows Paper Corporation (26-CA-18552; 332 NLRB No. 15) Pickens, MS Sept. 15, 2000. The Board adopted the administrative law judge's finding that the Respondent violated the Act by engaging in surface bargaining during negotiations on a first contract, unlawfully withholding a July 1998 pay increase and blaming the Union for the lack of an increase. The majority opinion was by Chairman Truesdale and Member Fox. [HTML] [PDF]

Dissenting in part, on another issue, Member Hurtgen would not find that the Respondent unlawfully raised the wages of certain employees in its finishing and maintenance departments in January and February 1998 without notifying and bargaining with the Union. As part of the remedy, he would authorize the Regional Director to appoint a mediator, at the Respondent's expense, "to participate in all bargaining sessions, to attempt to forge an agreement, and-if an agreement is not reached during a period of time decided by the mediator--to render a report to the parties and to the Regional Director."

The judge first ruled on this case in a bench decision on Oct. 30, 1998, finding that the Respondent had not violated Section 8(a)(1) and (5) by unilaterally awarding the wage increases. He reconsidered this ruling in view of the Board's decision in Rural/Metro Medical Services, 327 NLRB No. 18 (1998), which issued the same day. The judge stated in his Jan. 13, 1999 decision:

In sum, I conclude that, based on Respondent's past practice, the unit employees had a reasonable expectation that they would receive a raise in July 1998. I further conclude that Respondent's failure to grant this raise in July 1998 constituted a unilateral change in an established term or condition of employment which was a mandatory subject of collective bargaining.

(Chairman Truesdale and Members Fox and Hurtgen participated)

Charges filed by PACE Local 678. Complaint alleged violation of Section 8(a)(1) and (5). Hearing at Memphis, TN, Sept. 23, and Oct. 26-29, 1998. Adm. Law Judge Keltner W. Locke issued his decision Jan. 13, 1999.

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Wilmington Fabricators, Inc. (1-CA-30434, et al.; 332 NLRB No. 2) Wilmington, MA Sept. 15, 2000. The Board found no merit in the Respondent's exception to the administrative law judge's finding that the Respondent violated the Act when it discharged employee Danilo Guzman in August 1993, as evidenced by acts of union animus during an organizing campaign. The Board also rejected the Respondent's contention that allegations concerning the Respondent's failure to recall from layoff six Hispanic employees in September 1993 because of their support for the Union, were time-barred under Section 10(b). The Respondent amended the original charge in April 1996. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed by Teamster (IBT) Local 829, and Rodney Valladares, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Boston, Oct. 3, 1994, and Sept. 30, and Oct. 1-2, 1996. Adm. Law Judge Richard H. Beddow Jr. issued his decision March 7, 1997.

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Office Employees Local 251 (Sandia National Laboratories) (28-CB-3902, et al.; 331 NLRB No. 193) Albuquerque, NM Aug. 25, 2000. The Board held that it will no longer proscribe intraunion discipline against union members under Section 8(b)(1)(A) of the Act when the matter involves a purely intraunion dispute and the intraunion discipline imposed does not interfere with the employee--employer relationship or contravene a policy of the statute. The majority opinion was by Chairman Truesdale and Members Fox and Liebman. [HTML] [PDF]

The Board found that the dispute at issue essentially was an intraunion factional quarrel over intraunion policies and politics between, among others, the Union's two highest-ranking elected officers, who each filed impeachment petitions against one another. The predominant issue underlying the dispute concerned the disposition of a $58,000 check in settlement of a lawsuit against the Union. As a result of the dispute, internal union sanctions, including removal from union office and suspension or expulsion from union membership, were imposed on members of the losing faction, but no employment sanctions were implemented by any employer.

In dismissing the complaint, the Board overruled several cases in which the Board previously had found violations of the Act even in the absence of any meaningful correlation to the employment relationship or to the policies of the Act, including Carpenters Local 22 (Graziano Constructions Co.), 195 NLRB 1 (1972). The Board held:

[T]he position that we adopt here represents a return to the law as it was before Graziano Construction expanded the reach of Section 8(b)(1)(A) and made the Board a forum for vindicating policies that Congress intended to be enforced through the procedures of the Landrum Griffin Act.

While reaffirming the principle that Section 7 encompasses the right of employees to concertedly oppose the policies of their union, the Board rejected the principle that Section 8(b)(1)(A) proscribes "virtually each and every form of intraunion dispute without regard to the employment context or the policies of the Act."

Member Hurtgen, concurring, agreed with the result reached by the majority, but on the basis that, as a matter of comity, efficiency, and economy, the Labor-Management Reporting and Disclosure Act (LMRDA) should be the primary means of enforcement when the underlying dispute is wholly intraunion in character and the discipline imposed by the union is wholly internal and nonmonetary.

Member Brame, in dissent, concluded that the Union violated 8(b)(1)(A) because its discipline of the dissident members falls within a long line of Supreme Court, Court of Appeals, and Board precedent finding violations of that section. In Member Brame's view, the Union's discipline of the dissident members did not reflect a legitimate union interest and impaired national labor policy under both Section 7 and the LMRDA.

(Full Board participated)

Charge filed by Mary Ann Mitchell-Carr and Mildred G. Smith, individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Albuquerque, May 4, 1994. Adm. Law Judge James M. Kennedy issued his decision Aug. 23, 1994.

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Multi-Ad Services, Inc. 33-CA-11945; 331 NLRB No. 160) Peoria, IL Aug. 25, 2000. Affirming the administrative law judge, the Board majority of Members Fox and Liebman held that the Respondent violated the Act by (1) discharging employee Ted Steele because of his union activities; (2) impliedly promising to help improve his employment situation without the need for union representation; and (3) threatening to close the bindery depart merit should its employees become represented by a union. Member Brame concurred with issues No. 1 and 3, but dissented on issue No. 2. [HTML] [PDF]

(Members Fox, Liebman, and Brame participated.)

Charges filed by Graphic Communications Local 68C; complaint alleges violation of Section 8(a)(1) and (3). Hearing at Peoria, IL, May 29, 1997. Adm. Law Judge William J. Pannier III issued his decision Dec. 2, 1997.

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Pirelli Cable Corporation (11-CA-15987 et al.; 331 NLRB No. 158) Abbeville, SC Aug. 31, 2000. In a Supplemental Decision and Order, the Board agreed with administrative law judge's findings that the Respondent had engaged in certain unfair labor practices, including terminating the reinstatement rights of strikers without regard to whether they had obtained substantially equivalent employment. It concluded the Respondent's motive was to rid itself of the strikers and it failed to demonstrate any legitimate business justification for this conduct. [HTML] [PDF]

The Board issued its first decision in this proceeding on June 18, 1997 (223 NLRB No. 1009), holding that the Respondent violated the Act by threatening its employees with loss of their jobs if they went on strike. The Board found it unnecessary to consider the judge's "alternative unfair labor practice findings that are based on the assumption that the [1994] strike was an economic strike." The U.S. Court of Appeals for the Fourth Circuit on March 31, 1998 rejected the Board's finding that the Respondent threatened its employees with job loss, and, therefore, did not agree that the strike was an unfair labor practice strike. Accordingly, the court remanded the case to the Board "for reconsideration of the administrative law judge's numerous alternative holdings based upon the initial conclusion that the strike was an economic strike."

The Board noted, as conceded by the Respondent, that at least 68 job postings subsequent to the strike represented vacancies created by the departure of strike replacements. Citing MCC PacificValues, 244 NLRB No. 931 (1979), the Board ruled that in filling these vacancies the Respondent was not entitled to prefer strike replacements then on the payroll to qualified strikers awaiting reinstatement.

(Chairman Truesdale and Members Fox and Liebman participated.)

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FiveCap, Inc. (7-CA-37192 et al., 331 NLRB No. 157) Scottville, MI Aug. 25, 2000. A Board majority of Members Fox and Liebman held the Respondent, a nonprofit community action agency, is not a political subdivision exempt from the Act's jurisdiction. The administrative law judge had reached the same conclusion but for different reasons. The Board applied its analysis in Enrichment Services Program, Inc., 325 NLRB 818 (1998), which issued after the judge's decision, to the facts of this case. The determinative issue, it stated, was whether the one-third of the community action agency's board required to be "representative of the poor" is responsible to the electorate. [HTML] [PDF]

"[S]ince less than a majority of the Respondent's board is composed of public officials or individuals responsible to the general electorate, we find that the Respondent is not an exempt political subdivision and that it is an employer under Section 2(2) of the Act," the majority concluded.

The majority went on to find employee Arthur Burkel's layoff "was the direct result of action that the Respondent clearly took for an unlawful motive" (rather than for lack of work, as the Respondent had maintained), and in violation of the Act. Member Brame concurred that the Respondent is an employer but dissented on the layoff issue, contending it was not unlawful.

(Members Fox, Liebman, and Brame participated.)

Charges filed by Teamsters Local 406; complaint alleged violation of Section 2(2). Hearing at Cadillac and Grand Rapids, MI, Jan. 29--Feb. 2, and Feb. 4--8, 1996. Adm. Law Judge Steven B. Fish issued his decision Jan. 31, 1997.

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North American Dismantling Corp. (7-CA-39923 et al.; 331 NLRB No. 163) Lapeer, MI Aug. 31, 2000. The majority opinion of Members Fox and Liebman affirmed the administrative law judge's finding that employees Powell, Giltrop and Zietz were unlawfully discharged for engaging in protected concerted activity. The Respondent had contended these discriminatees engaged in an economic strike when they walked off the job and that they were not discharged by the Respondent. Member Hurtgen dissented, stating: [HTML] [PDF]

The issue in this case is whether Respondent discharged the employees for seeking a union wage scale or gave the employees the option of working at a lesser rate or not working for Respondent. In my view, the General Counsel has not established the former proposition.

(Members Fox, Liebman, and Hurtgen participated.)

Charges filed by Jeffrey G. Powell, Robert W. Giltrop, and Jayson Zeitz, individuals; complaint alleged violation of Section 8(a)(1). Hearing at Flint, MI, March 26-27, 1998. Adm. Law Judge Leonard M. Wagman issued his decision July 10, 1998.

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Flat Dog Productions, Inc. (31-CA-24062; 331 NLRB No. 169) Los Angeles, CA Aug. 31, 2000. The Board agreed with the administrative law judge's finding that the Respondent unlawfully discharged striking employees for engaging in an economic strike. Applying the standard in Brunswick Hospital Center, Inc., 265 NLRB 803 (1982), the Board rejected the Respondent's claim that it did not, in fact discharge the strikers. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated)

Charges filed by Stage Employees (IATSE) Local 600; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Los Angeles, March 27-28, 2000. Adm. Law Judge Jay R. Pollack issued his decision May 23, 2000.

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Resco Products, Inc. (14-CA-24512-1, 24512-2; 331 NLRB No. 162) Bonne Terre, MO Aug. 31, 2000. Affirming the administrative law judge, the Board held that Respondent Resco violated Section 8(a)(5) of the Act by failing to make contractually required payments of accrued vacation pay to employees, and that Respondent successor VMPC violated Section 8(a)(1) by conditioning offers of employment to Resco employees on their waiving contractually accrued vacation pay and later by threatening employees with termination if they accepted checks in payment for accrued vacation pay. Contrary to the judge, the Board concluded VMPC did not violate Section 8(a)(5), since it was not clear that VMPC would hire Resco's workforce and therefore was entitled to set initial terms and conditions of employment without first bargaining with the Union. [HTML] [PDF]

The Board further found, contrary to the judge, and agreeing with the General Counsel, that VMPC is a Golden State successor to Resco and therefore jointly and severally liable to remedy Resco's 8(a)(5) violation.

Member Hurtgen issued a separate concurring opinion, expressing his view that the paradigm Golden State situation, where a predecessor has committed a violation prior to the transfer of the business to a purchaser and a purchaser is aware of that violation, was not present here. He noted that predecessor Resco did not commit the violation (i.e. failure to pay), prior to the transfer.

(Members Fox, Liebman and Hurtgen participated)

Charges filed by United Steelworkers of America; complaint alleged violation of Section 8(a)(1) and (5). Hearing at St. Louis, Oct. 29, 1997. Adm. Law Judge Michael O. Miller issued his decision Feb. 23, 1998.

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NACCO Materials Handling Group, Inc. (9-CA-35318-2; 331 NLRB No. 164) Berea, KY Aug. 25, 2000. In the this case involving a "goose escapade," the Board reversed the administrative law judge's finding that the Respondent violated the Act by suspending and terminating employees Poff and Rowlett during the eighth union organizing campaign at this plant. The Board described the events leading to the discharges as follows: [HTML] [PDF]

The Respondent has a pond on its property, and in September, there are hundreds of ducks and geese at the pond. Employee Rowlett testified that on September 19, 1997, a goose wandered into his work area and that he 'talked' to it. Rowlett picked up the goose by its feet and told other employees that it 'want[ed] to sign a union card to join the union.' Employee Poff wrote 'Vote Yes' on a small card, attached it to a string about two feet long, and placed the sign over the goose's head while Rowlett held it. Rowlett then proceeded to drive the goose through the plant on a forklift truck. The record shows that a Canada goose weighs approximately 14 pounds and has 5-foot wingspan.

The judge concluded the discharges were motivated by antiunion animus, pointing out that the Respondent's employee handbook expressed the view that a union "could seriously impair the relationship between the Company and the employees, and could retard the growth of the Company and the progress of the employees." The Board, however, said "the judge failed to accord weight to the significant countervailing evidence." For example, no Section 8(a)(1) violations were found by the judge, no antiunion comments were made to the alleged discriminatees, and no unfair labor practices were committed in previous organizing campaigns at the plant. The Board stated in a footnote:

Parading a live goose through a manufacturing plant obviously does not fall within the activities protected by Sec. 7. Conduct of that kind has been considered to be unprotected horseplay. See, e.g., Publishers Printing Co., 272 NLRB 1027, 1030-1032 (1984). Placing a 'vote yes' sign on a wild animal does not transform otherwise unprotected 'gooseplay' into activity protected by the National Labor Relations Act.

(Chairman Truesdale and Members Hurtgen and Brame participated)

Charges filed by Teamsters Local 651; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Berea, Aug. 4 and Oct. 8, 1998. Adm. Law Judge John H. West issued his decision on April 30, 1999.

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Charlotte Amphitheater Corporation d/b/a Blockbuster Pavilion (11-CA-14684, et al.; 331 NLRB No. 165) Charlotte, NC Aug. 25, 2000. This case was first decided by the Board on June 27, 1994, 314 NLRB 129 (1994). In the earlier proceeding, the Board found the Respondent had engaged in numerous unfair labor practices during a union organizing campaign and concluded a GisselI bargaining order was appropriate. On April 30, 1996, the U.S. Court of Appeals for the District of Columbia Circuit enforced the Board's unfair labor practice findings but remanded the case to the Board solely for consideration of whether other traditional remedies would be adequate to erase the effects of the unfair labor practices and for consideration of evidence bearing on the propriety of the bargaining order in light of changed circumstances. [HTML] [PDF]

In the instant Supplemental Decision and Order, the Board deleted the bargaining order, noting that the six-year delay may render it unenforceable. An election never was held but a representation petition, filed on Oct. 15, 1991, is pending. The Board, in a majority opinion by Members Fox and Liebman, ordered the following special remedies in place of the bargaining order:

1. The Respondent must supply the Union, on its request made within one year, the names and addresses of its current employees.

2. The Respondent, in addition to posting copies of a notice, is ordered to mail it to all present employees and to all employees on its payroll since Aug. 24, 1991.

3. The Respondent must convene during working time all unit employees and have a "responsible management official" read the notice or permit a Board agent read it.

4. The Respondent is ordered to grant the Union reasonable access to its bulletin boards and "all places where notices to employees are customarily kept." This remedy is to be in effect for two years or until the Regional Director has issued an appropriate certification following an election--whichever comes first.

In dissent, Member Brame agreed the Respondent should be required to mail copies of the notice to present and former employees, but disagreed that additional remedies are needed. He stated:

Consistent with the court's remand instruction to explain why traditional remedies would be inadequate in this case, special remedies are necessary only if it can be demonstrated that the Board's traditional remedies will not adequately eliminate the effects of unfair labor practices and ensure a fair election. There is no such showing here.

(Members Fox, Liebman and Brame participated)

Charges filed by Stage Employees (IATSE) Local 322; complaint alleged violation of Section 8(a)(1), (3), and (5). Remand hearing at Charlotte, May 15-16, 1997. Adm. Law Judge John H. West issued his supplemental decision Sept. 25, 1997.

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Salem Electric Company, Inc. (11-CA-16141, et. al.; 331 NLRB No. 172) Winston-Salem, NC Aug. 31, 2000. This case primarily involves the General Counsel's allegations that Respondent Salem refused to hire or to consider for hire 66 union members who applied for work as electricians during 1994 and 1995. Additionally, the General Counsel alleged that Salem unlawfully failed to reinstate two former economic strikers to their prestrike jobs or to substantially equivalent ones; that Salem and Respondent Options, as joint employers, unlawfully refused to hire three union members; and that Salem and Options each violated Section 8(a)(1) of the Act in different instances. [HTML] [PDF]

The Board decided to remand the case to the administrative law judge on the following three broad, potentially related grounds:

First, because we reject the judge's Section 10(b) rationale for dismissing the striker-reinstatement allegations, we remand these contentions for the judge to make findings and recommendations on the substantive unfair labor practice question. Second, we reverse the judge's finding that the General Counsel failed to establish that Salem and Options are joint employers, and we remand for the judge's further consideration of this and related issues. Finally, we remand the refusal-to-hire/refusal-to-consider allegations involving the 66 union members for the judge's further consideration in light of our recent decision in FES (A Division of Thermo Power), 331 NLRB No. 20 (2000).

(Chairman Truesdale and Members Fox and Liebman participated)

Charges filed by Electrical Workers (IBEW) Local 342; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Winston-Salem, on various dates between Nov. 12, 1996 through Feb. 12, 1997. Decision issued by Adm. Law Judge Richard J. Linton, Nov. 21, 1997.

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North American Refractories Co. (7-CA-39958, 40626; 331 NLRB No. 182) White Cloud, MI Aug. 31, 2000. The Board adopted the administrative law judge's dismissal of an allegation excepted to by the General Counsel that the Respondent's discharge of employee Douglas Rand independently violated Section 8(a)(1) of the Act. The judge had dismissed allegations that Rand's discharge violated both 8(a)(3) and 8(a)(1), notwithstanding Rand's support of the Union's organizing drive, because of the employee's insubordinate outburst directed at his supervisor. The judge said Rand lost the protection of the Act after this "profane, vulgar attack." [HTML] [PDF]

There were no exceptions to the judge's other findings, including that the Respondent violated 8(a)(1) by maintaining an overly broad no-solicitation, no distribution rule.

(Members Fox, Liebman, and Hurtgen participated)

Charges filed by United Steelworkers of America; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Grand Rapids, July 27-29, 1998. Adm. Law Judge Irwin H. Socoloff.

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McDaniel Ford Inc. (29-CA-18811, 18992; 331 NLRB No. 183) Hicksville, NY Aug. 31, 2000. In a Supplemental Decision and Order, the Board ordered the Respondent to pay almost $43,000 in backpay (including pension contributions) to employee Leo Balsam. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Hurgten participated)

Hearing held at Brooklyn, Nov. 30, 1999. Adm. Law Judge Eleanor McDonald issued her supplemental decision March 30, 2000.

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Kajima Engineering and Construction, Inc. (28-CA-14029, 14076; 331 NLRB No. 175) Las Vegas, NV Aug. 31, 2000. Reversing the administrative law judge, the Board concluded the Respondent unlawfully laid off employee Todd Ewoldt for union activity given the "confluence of circumstances" in this case, including "the fact the Respondent responded to the Union's organizing campaign with demonstrated unlawful threats, promises, and that the Respondent's asserted reasons for Ewoldt's layoff [lack of work] were pretextual." The layoff occurred soon after the Union was certified. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed by Operating Engineers Local 12; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Las Vegas, April 29-30 and May 1, 1997. Adm. Law Judge Burton Litvack issued his decision Jan. 29, 1998.

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Labor Ready, Inc. (20-CA-28946-1; 331 NLRB No. 187) San Francisco, CA Aug. 31, 2000. The Board affirmed the administrative law judge's finding that the Respondent's "no walk-off " rule, which stated that employees who walked off a job would be discharged, was overbroad in violation of the Act. The Respondent had terminated two employees and threatened employees with discharge pursuant to this rule. In a footnote, the Board asserted: [HTML] [PDF]

Respondent asserts that the order proposed by the judge would prevent Respondent from terminating an employee who decides to walk off the job 'to go to a tavern for a beer.' We note, however, that the Respondent could promulgate an appropriately narrow rule that would allow it to terminate an employee under these and similar circumstances.

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charge filed by Donald Robinson, an individual; complaint alleged violation of Section 8(a)(1). Hearing on Oct. 6-7, 1999 (closing arguments by telephone). Adm. Law Judge Michael D. Stevenson issued his bench decision Oct. 27, 1999.

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EIS Brake Parts, Div. of Standard Motor Products (34-CA-7107-1 et al.; 331 NLRB No. 195) Berlin, CT Aug. 25, 2000. The Board adopted the judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by: (1) unilaterally increasing substantially the amount of subcontracting of work normally performed by unit employees and laying off unit employees as a result of that subcontracting; (2) implementing its last contract proposals, including its proposal for a group incentive bonus plan, without having reached a lawful impasse in collective-bargaining negotiation; and, (3) refusing to provide the Union access to its facility for a safety and health inspection. However, the Board reversed the judge's unfair labor practice findings regarding the Respondent's unilateral combination of job classifications and creation of a CNC Cell in the wheel cylinder department and combination of job classifications in the subassembly department; provision of Gatorade to employees in working areas; and provision of free pizza to reward employees in the hose assembly area for achieving 100 percent productivity. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Brame participated.)

Charges filed by Auto Workers Local 376; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Hartford, Sept. 9--27, 1996. Adm. Law Judge Jesse Kleiman issued his decision Oct. 31, 1997.

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Citizens Publishing and Printing Co. (6-CA-27215, et al.; 331 NLRB No. 176) Ellwood City and Beaver Fall, PA Aug. 23, 2000. The Board, in a majority opinion by Chairman Truesdale and Member Fox, adopted the administrative law judge's conclusion that the Respondent violated the Act by unilaterally subcontracting the night and weekend (n/w) work of the full-time photographers to stringers. It held: [HTML] [PDF]

The record establishes, and the judge found, that the Respondent made n/w work part of the regular duties of the full-time photographer position in August 1993. . . . N/W work effectively became bargaining unit work at that time. Therefore, we agree with the judge that when the Respondent hired new stringers to perform the n/w work of the full-time photographer in 1995, without first consulting the Union, it unilaterally subcontracted unit work in violation of Section 8(a)(5).

In dissent, Member Hurtgen would not find a violation because the Respondent's use of stringers "was consisted with its established past practice."

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Teamsters Local 261; complaint alleged violation of Section 8(a)(5). Hearing at Pittsburgh, Oct. 15-18 and 21, 1996. Adm. Law Judge C. Richard Miserendino issued his decision June 30, 1997.

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Budrovich Contracting Co. (14-CA-24969; 331 NLRB No. 178) St. Louis, MO Aug. 25, 2000. Affirming the administrative law judge, the Board held that the Respondent violated the Act by laying off employees William Busch and Pat Kammer for concertedly asserting their contract rights and insisting on being paid the rate for field work established in the collective bargaining agreement between the Respondent and the Union. The Board also agreed with the judge that the Respondent unlawfully revoked the mechanics' no-call-in policy for Kammer and Busch, adding: [HTML] [PDF]

However, because the allegation involves discrimination in terms and conditions of employment in retaliation for engaging in protected concerted activity, we do not agree with the judge's conclusion that 'motivation is not an essential element' of the violation. In fact, motivation is an essential element, and the allegations should have been analyzed under Wright Line.

(Chairman Truesdale and Members Liebman and Brame participated.)

Charges filed by Patrick P. Kammer, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at St. Louis, July 15-16, 1998. Adm. Law Judge Earl E. Shamwell Jr. issued his decision April 14, 1999.

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University of Great Falls (19-CA-26031; 331 NLRB No. 188) Great Falls, MO Aug. 31, 2000. By way of background, the Respondent university, founded by a Catholic religious order refused to bargain with the Union following a mail ballot election between March 8--March 29, 1996. The Union was certified on January 8, 1998 to represent the Respondent's faculty members. The primary issues presented to the Board are of first impression: whether the Religious Freedom Restoration Act (RFRA) applies to proceedings under the National Labor Relations Act, and if it does, whether the Board's assertion of jurisdiction over the Respondent would violate RFRA. The Board concluded the RFRA is applicable to Board proceedings and that its jurisdiction does not conflict with that statute. [HTML] [PDF]

The Board asserted that RFRA does not require it to alter its analysis under Catholic Bishop of Chicago, 440 U.S. 490 (1979), in determining whether asserting jurisdiction over an employer would involve a serious risk of infringement of First Amendment rights. It stated:

Inasmuch as RFRA prohibits only those governmental actions that 'substantially burden' the free exercise of religion, it follows that when the Board applies Catholic Bishop and finds that the exercise of the Board's jurisdiction over an employer involves no significant risk of infringement of religious rights, RFRA's purposes have been considered and satisfied, as well.

In the underlying representation case, the Respondent admitted to its refusal to bargain but attacked the validity of the certification, asserting that the Board's unit determination was erroneous and that the Board improperly asserted jurisdiction. The Board upheld the Regional Director's finding that the Respondent is not a church-operated institution within the meaning of Catholic Bishop. As explained by the Board in the instant case:

The Regional Director found that neither the Order nor the Catholic Church is involved directly in the day-to-day administration of the University, including such matters as hiring and firing of faculty, modifying the curriculum, and purchasing educational supplies and materials. In this regard, the Respondent's board of trustees, which is overwhelmingly composed of lay persons, possesses the final approval authority on such personnel matters as faculty sabbaticals, tenure, and promotions, as well as on financial, academic, and student affairs issues. Further, the evidence shows that the Respondent is not financially dependent on the Order or the Church.

Most significantly, the Regional Director found that the propagation of a religious faith is not the primary purpose of the Respondent, but rather that the University's purpose and function are primarily secular.

Member Hurtgen, in a concurring opinion, said he disagreed with his colleagues that the Board has no authority to pass on the constitutionality of Congressional enactments.

(Members Fox, Liebman and Hurtgen participated

Charges filed by Montana Federation of Teachers (AFT); complaint alleged violation of Section 8(a)(1) and (5).

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Lockheed Martin Tactical Aircraft Systems (16-CA-17464, et al.; 331 NLRB No. 190) Fort Worth, TX Aug. 25, 2000. The Board reversed the administrative law judge's finding that the Respondent Employer violated Section 8(a)(1), (2), and (3) and that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by entering into an unlawful agreement to accrete previously unrepresented salaried professional and administrative employees (P&A) in the graphic arts department into the existing bargaining unit at a time when the Union did not represent a majority of these previously unrepresented P&A employees, and by applying the terms of the Respondent's collective-bargaining agreement to them. The Board found merit in the Respondent's exceptions that this case involves only "the lawful return of bargaining unit work which had seeped out over time from the bargaining unit." The majority opinion by Members Fox and Liebman stated: [HTML] [PDF]

The Respondents in this case were faced with a problem of a growing number of grievances alleging that nonunit employees were performing unit work. They decided through collective bargaining to resolve the problem through a job audit of the departments involved in these grievances, including Department 17-4 [graphic arts]. The audit revealed that of the 76 nonunit P&A jobs in Department 17-4, 26 consisted of bargaining unit work. In other words, through the course of time, bargaining unit worked had 'seeped out' of the unit, and the Respondents agreed that the work performed by these 26 nonunit employees should be returned to the bargaining unit. . . . [W]e do not find that the P&A employees who accepted transfers to the bargaining unit constituted an accretion to the bargaining unit.

Dissenting in part, Member Brame would adopt the judge's finding that the Respondents violated the Act by accreting the P&A employees into the bargaining unit. He asserted:

While my colleagues may desire to check the declining membership of a bargaining unit by absorbing into the unit work that they assert has 'seeped out' from it, they cannot do so by conducting a mopping up operation that effectively wipes out the Section 7 rights of unrepresented employees.

(Members Fox, Liebman and Brame participated)

Charges filed by Alma Paulette Beveridge, an individual; complaint alleged violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2). Hearing at Fort Worth, May 28-30, 1996. Adm. Law Judge Albert A. Metz issued his decision on Sept. 23, 1996.

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Pall Biomedical Products Corporation, a Division of Pall Corporation (29-CA-18545, 19565; 331 NLRB No. 192) Brooklyn, NY Aug. 31, 2000. The Board majority of Chairman Truesdale and Members Fox and Liebman reversed the judge and found that the Respondent violated Section 8(a)(5) and (1) of the Act by repudiating a letter of agreement it had with the Union and by refusing to furnish the Union with certain requested information. The Board also dismissed the allegation that the Respondent unlawfully refused further access to its Port Washington facility. [HTML] [PDF]

The letter of agreement provided that the Respondent would recognize the Union at the Port Washington facility if one or more workers there performed unit work. The Board majority, relying on Kroger Co., 219 NLRB 388 (1975) and Chemical & Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971), held that the letter of agreement was a mandatory bargaining subject and that the Respondent's repudiation of it therefore violated the Act. In so holding, the majority rejected the contention that the Respondent's repudiation was privileged because the Union insisted on applying the letter of agreement to obtain immediate recognition even though it had no showing of majority support at Port Washington. The majority stated that the Respondent could have taken the "reasonable step" of rejecting the Union's interpretation of the letter of assent without taking the "destructive step" of outright repudiation.

The majority further held that the Respondent's refusal to provide requested information relating to the terms and conditions of employment at the Port Washington facility violated the Act even though the employees there were not unit members. The majority found that the request for information was not linked to the Union's improper demand for recognition at Port Washington and that it was reasonably related to the Union's enforcement of its rights under the letter of agreement. The Board further found the Respondent's refusal to grant the Union access to the Port Washington facility did not violate the Act because the requests for access were tied to the Union's demand for immediate recognition.

Member Hurtgen dissented. He would find that the letter of agreement was not a mandatory subject of bargaining because the clause would operate without regard to majority status which would result in a Section 8(a)(2) and 8(b)(1)(A) unfair labor practice. Member Hurtgen stated that the Respondent took the "reasonable step" of simply declining to apply the letter of agreement as requested by the Union. Member Hurtgen also would find that the request for information violated the Act as the information was sought with respect to the letter of agreement, a nonmandatory bargaining subject.

(Chairman Truesdale and Members Fox and Liebman and Hurgten)

Charges filed by Auto Workers (UAW) Local 365; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Brooklyn, Oct. 22, 1996. Adm. Law Judge Steven Davis issued his decision on Jan. 31, 1997.

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Chelsea Industries, Inc. (7-CA-36846, 37016; 331 NLRB No. 184) Chelsea, MI Aug. 31, 2000. The Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union after the certification year expired, based on an antiunion petition obtained during the certification year. [HTML] [PDF]

Chairman Truesdale and Members Fox and Liebman, in clarifying existing precedent, relied on United Supermarkets, 287 NLRB 119 (1987), enfd. 862 F.2d 549 (5th Cir. 1989), which held that an employer may not withdraw recognition outside the certification year on the basis of evidence of loss of majority acquired within the certification year. They rejected the administrative law judge's finding that United Supermarkets was undermined by Rock-Tenn Co., 315 NLRB 670 (1994), and other cases.

The Board majority, finding that Rock-Tenn rests on conflicting legal theories, overruled Rock-Tenn "to the extent that it suggests that, based on evidence received during the certification year, an employer may announce that it intends to withdraw recognition from the union at the end of the certification year." The majority found that the "anticipatory withdrawal of recognition" cases, on which Rock-Tenn erroneously relies, involved anticipatory withdrawal of recognition during the term of a collective-bargaining agreement and in the context of an established bargaining relationship, not during a certification year.

In dissent, Member Hurtgen, would dismiss the unfair labor practice allegation, finding that although the employees signed the antiunion petition during the certification year, there was no subsequent evidence that they had changed their sentiment when the Respondent withdrew recognition after the certification year expired.

(Chairman Truesdale and Members Fox, Liebman, and Hurtgen participated)

Charges filed by Auto Workers (UAW); complaint alleged violation of Section 8(a)(1). and (5). Pursuant to a stipulation that waived a hearing, case was submitted on Aug. 30, 1995. Adm. Law Judge issued his decision Sept. 29, 1995.

* * *

Scepter Ingot Casting (26-CA-17161, 17345, 331 NLRB No. 153) New Johnsonville, TN Aug. 28, 2000. The Board, upholding the administrative law judge, found the Respondent unlawfully withdrew recognition from the Union because it did not have sufficient grounds to support a good-faith doubt that the Union retained the support of a majority of unit employees. The Respondent withdrew recognition of the Union in 1995 after relying on statements by an employee to management that she "felt" the Union had "no standing." The Board also found unlawful the Respondent's unilateral implementation of a pay increase, a change in work rules and its discharge of an employee. Accordingly, it concluded that "an affirmative bargaining order with its temporary decertification bar is necessary to fully remedy the allegations in this case." [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Stephen L. Merrell, an individual, complaint alleged violation of Section 8(a)(5). Hearing at Nashville, TN on Nov. 18-19, 1996. Adm. Law Judge Richard J. Linton issued his decision July 16, 1997.

* * *

Local Union No. 3 (IBEW) (34-CB-2179 et al.; 331 NLRB No. 150) White Plains, NY Aug. 28, 2000. Agreeing with the administrative law judge, the Board found that the Respondent Union violated the Act by (1) requiring employees who used its exclusive hiring hall to comply with its constitution and by-laws (including a referral rule the Union rescinded in May 1999, which discriminated on the basis of union membership); and (2) denying out-of-work electrician Michael Conner the opportunity to place his name on a referral list due to his status as a non-member. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

Charges filed by Wayne Hayward, Christopher Kulers, and Michael Conner, individuals; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Hartford, CT, Sept. 28-30, 1999. Adm. Law Judge Michael A. Marcionese issued his decision Jan. 13, 2000.

* * *

Sea Breeze Health Care Center (15-CA-14273, 15-RC-8042; 331 NLRB No. 149) Mobile, AL Aug. 25, 2000. Affirming the administrative law judge, the Board majority of Members Fox and Liebman ordered a second election upon concluding the Respondent had engaged in certain unfair labor practices that had interfered with the first election, including a "group interrogation" and administering a "Union Truth Quiz". The quiz consisted of 17 questions "with an anti-union bias" for employees to answer regarding their knowledge of the Union. The winning prize was $1,427.60 (an amount based on monthly union-dues payments from unit employees if they chose union representation), which the Respondent said would be donated to the winning employee's favorite charity. The majority held that this contest was "coercive" and "tantamount to effectively polling employees about their union sentiments," noting the employer required employees who participated to identify themselves and included a "substantial monetary prize." [HTML] [PDF]

Dissenting Member Brame would dismiss the allegations. He thought the questioning of employees by a supervisor about their knowledge of the union campaign simply was "one brief, nonconfrontational inquiry" and did not rise to a coercive level. He said the quiz was "nothing more than a 'tongue-in-cheek' educational tool" and that it could hardly have influenced the election since only one employee submitted the completed quiz.

(Members Fox, Liebman, and Brame participated.)

Charges filed United Food and Commercial Workers Local 1657, complaint alleged violation of Section 8(a)(1). Hearing at Mobile, Oct. 14-17, 1997. Adm. Law Judge Jerry M. Hermele issued his decision March 24, 1998.

* * *

Novartis Nutrition Corp. (18-CA-15042, 15094; 331 NLRB No. 161) Summit, NJ Aug. 28, 2000. The Board agreed with the administrative law judge's finding that the Respondent violated the Act by linking employee Steve Taray's union activity to his job performance and discharging employee Robert Tresemer for engaging in union activity. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Robert G. Tresemer, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing Minneapolis, MN, May 11-12, 1999. Adm. Law Judge Jerry M. Hermele issued his decision Aug. 4, 1999.

* * *

Home Depot USA, Inc. (2-RC-22092; 331 NLRB No. 168) New Rochelle, NY Aug. 25, 2000. Reversing the Acting Regional Director, the Board found that the Employer's drivers (and dispatchers who drive) share a sufficiently distinct community of interest to constitute an appropriate bargaining unit. Unlike the truck drivers in Levitz Furniture Co., 192 NLRB 61 (1971), the Board noted the drivers here are licensed and do not spend a substantial portion of their time working alongside or in close proximity with other employees. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Brame participated.)

* * *

Slay Transportation Co. (16-RC-10044; 331 NLRB No. 170) Houston, TX Aug. 25, 2000. The Board majority of Members Fox and Liebman, contrary to the Regional Director, found that the Employer's owner-operator truckdrivers are employees under the Act and should be included in the petitioned-for bargaining unit. Noting the owner -operators do not operate "independent businesses" and citing Roadway Package System, Inc., 326 NLRB 842 (1998), the majority stated: [HTML] [PDF]

"The owner-operators here transport chemicals solely for Slay--a company whose core function is the transportation of such products for its customers. These owner-operators augment the Employer's own driver workforce, performing the same core functions as those drivers."

In dissent, Member Brame would affirm the Regional Director's finding that the drivers were independent contractors. He pointed out, among other things, that the owner-operators used their own tractors, which are licensed and insured by their own name; the owner-operators are free to hire other drivers to operate their tractors and to set the drivers' rate of pay. They also are free to work for other employers and to refuse a job without losing their contract.

(Members Fox, Liebman, and Brame participated.)

* * *

CII Carbon, L.L.C. (15-CA-14487-2, et al; 331 NLRB No. 155) Chalmette, LA Aug. 25, 2000. The Board adopted the administrative law judge's recommended order dismissing the complaint that the Respondent allegedly had violated the Act by locking out employees, unilaterally changing terms and conditions of employment, and refusing to arbitrate grievances. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

Charges filed by United Steelworkers of America; complaint alleged violation of Section 8(a)(3) and (5). Hearing at New Orleans, Oct. 18-21, 1999. Adm. Law Judge George Carson II issued his decision Dec. 22, 1999.

* * *

The News Journal Co. (4-CA-26797; 331 NLRB No. 177) New Castle, DE Aug. 25, 2000. The Board, agreeing with the administrative law judge, dismissed the complaint that in July 1997 the Respondent allegedly had unlawfully discontinued its practice of granting wage increases to employees after successful completion of their 90-day probationary period. The Board noted in a footnote that "the Respondent adduced evidence, which was credited by the judge, that the decision to award post-probationary merit wage increases was highly subjective and depended on numerous criteria, including budget, skill, and area of specialty, and the General Counsel failed to show that executive editors who approved those raises prior to October 1997 applied different criteria than current Executive Editor Jane Amari in determining whether to give merit increases." [HTML] [PDF]

(Members Fox, Liebman, and Brame participated.)

Charges filed by The Newspaper Guild of Greater Philadelphia, Local 10; complaint alleges violation of Section 8(a)(1) and (5). Hearing at Philadelphia, PA, Oct. 27, 1999. Adm. Law Judge Bruce D. Rosenstein issued his decision Feb. 18, 2000.

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Avne Systems, Inc. (2-CA-30949, 2-CB-16899; 331 NLRB No. 180) Bronx, NY Aug. 25, 2000. Rejecting a statute of limitations defense, the Board majority of Chairman Truesdale and Member Hurtgen adopted the administrative law judge's findings that (1) the Respondents unlawfully entered into a collective-bargaining agreement at a time when Charging Party Laborers (LIUNA) Local 445 was the Section 9 representative and its contract with Respondent Avne had not yet expired; and (2) Respondent Avne unlawfully withdrew recognition from the Charging Party during the term of an existing contract. The Board found it appropriate to toll the statute of limitations as to both Respondents. Dissenting in part, Member Brame would not toll the statute as to Respondent Avne. The majority stated: [HTML] [PDF]

It is undisputed that the conduct alleged as unlawful in the instant case occurred more than 6 months before the charges were filed. Notwithstanding this fact, the judge found that the statute of limitations should be tolled because the Respondents fraudulently concealed from Avne employees a scheme to substitute a new union, Local 445, League of International Federated Employees (LIFE), for Local 445, Laborers' International Union of North America (Local 445, LIUNA), their bargaining representative. The judge found that, by misleading the employees as to the nature of the transactions involved, Respondent Avne, fraudulently concealed the true facts from the affected employees and that, as a consequence, the 10(b) statute of limitations should be tolled. We find merit in the Respondents' exceptions to this finding.

(Chairman Truesdale and Members Hurtgen and Brame participated.)

Charges filed by Laborers' International Union of North America Local 445; complaint alleged violation of Section 2(5). Hearing at New York, July 28-29, and Nov. 4, 1998. Adm. Law Judge Raymond P. Green issued his decision Dec. 28, 1998.

* * *

Priority One Services, Inc. (11-RD-598; 331 NLRB No. 167) Research Triangle Pk., NC Aug. 30, 2000. The Board majority of Chairman Truesdale and Member Liebman denied the Petitioner's request for review of the Regional Director's administrative dismissal of a July 8, 1999 decertification petition. On August 31, 1999, Region 11 issued a complaint based upon unfair labor practice charges filed by the Union alleging unilateral changes by the Employer that predated the filing of the petition. Subsequently, the parties reached agreement on a collective-bargaining agreement which resolved the outstanding unfair labor practice charges. The Regional Director thereafter dismissed the decertification petition on the basis of the parties' negotiation of the collective-bargaining agreement and concomitant settlement of the unfair labor practice charges. The majority stated: [HTML] [PDF]

"Here, the specific unilateral changes - a 9.5-percent increase in employee health insurance premiums and a change in the method of refunding excess employee health and welfare benefits - were serious enough to undercut the union's ability to function as the employees' bargaining representative and interfere with employee free choice in an election."

In dissent, Member Hurtgen would permit a hearing on the factual issue of whether there was a causal nexus between the alleged 8(a)(5) conduct and the employee disaffection from the Union. By not permitting a hearing, he said his colleagues "stifle the Section 7 rights of the decertification petitioner and those employees who wish to have an election."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

* * *

Mid-State, Inc. (12-CA-18330, et al.; 331 NLRB No. 185) Gainesville, FL Aug. 25, 2000. The Board majority of Members Hurtgen and Brame found, in agreement with the administrative law judge, that certain statements made to employees by two supervisors in April 1997, immediately prior to an election, were not objectionable and did not violate the Act. (One such statement by Supervisor McLeod, referring to Union representative Sykes was: "If he comes onto my property, I'll fill his butt with lead. Florida law says I can defend my property that way.") Chairman Truesdale, dissenting in part, would find the statements unlawful and direct a second election. "Each statement is a threat of physical violence directed at union activity that would have a tendency to interfere with employees' exercise of their Section 7 rights," he stated. [HTML] [PDF]

The Board also affirmed the judge's findings that the Respondent had engaged in certain unfair labor practices, including promulgating a no-solicitation rule that prohibited solicitation during break time, threatening to close the business if employees were represented by the union, and threatening to sue employees in retaliation for their union activities. The judge dismissed all complaint allegations falling within the "critical" election period from March 7, 1997, when the petition was filed, to April 18, 1997, the date the election was held (the vote count was 4 yes, 20 no, and 15 challenged ballots).

(Chairman Truesdale and Members Hurtgen and Brame participated.)

Charge filed by Electrical Workers (IBEW) Local 1205; complaint alleged violation of 8(a)(1) and (3). Hearing at Gainesville, 6-days between Aug. 25 and Oct. 15, 1997. Adm. Law Judge Richard J. Linton issued his decision July 17, 1998.

* * *

Germinsky Electrical Co. (22-CA-21193, et al.; 331 NLRB No. 181) Plainfield, NJ August 25, 2000. The Board adopted the administrative law judge's dismissal of the complaint, finding the Respondent did not unlawfully refuse to consider and hire union applicants. The General Counsel did not present sufficient evidence to establish the requisite antiunion animous to sustain the allegations, the panel concluded. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Brame participated.)

Charges filed by Electrical Workers, et al. (IBEW); complaint alleged violation of Section 8(a)(3). Hearing at Newark, Dec. 2-5, 1996. Adm. Law Judge Raymond P. Green issued his decision March 25, 1997.

* * *

Charles S. Wilson Memorial Hospital (3-CA-20667; 331 NLRB No. 154) Johnson City, NY Aug. 31, 2000. The Board adopted the judge's finding that the Respondent unlawfully threatened to rescind existing benefits pertaining to paid time off if the Union filed unfair labor practice charges; and maintaining a rule requiring employees to refrain from talking to union representatives and requiring them to inform management of any conversations with union representatives. However, the panel reversed the judge's dismissal of allegations that the Respondent violated the Act by refusing to furnish employees' timecards to the Union as requested and further by unilaterally modifying contractual shift differential pay entitlements. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charges filed Painters Local 1990; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Binghamton, Feb. 23-24, 1998. Adm. Law Judge Raymond P. Green issued his decision June 24, 1998.

* * *

Hinds County Human Resource Agency (18-RC-16579, formerly 15-RC-8239) Jackson, MS Aug. 25, 2000. The Board majority of Members Hurtgen and Brame reversed the Regional Director's November 22, 1999 Decision and Direction of Election in which he found the Employer not to be a political subdivision of the State of Mississippi exempt from the Board's jurisdiction under Section 2(2) of the Act. In holding the Employer to be exempt, the majority stated the issue was whether the Employer was created by the Hinds County Board of Supervisors so as to constitute a department or administrative arm of government. "It is clear from the language of the enabling statute [Mississippi State Code] that it was the legislature's intention that human resource agencies, such as the Employer, be operated under local governmental control, " it said. [HTML] [PDF]

In a separate concurring opinion, chairman Truesdale, while agreeing the petition should be dismissed because the Employer is an exempt political subdivision, stated:

"In my view, however, a majority of the individuals on the Employer's board of directors are public officials or individuals responsible to the general electorate and, therefore, the Employer satisfies the second prong of the test under NLRB v. Natural Gas Utility of Hawkins County, Tennessee, 402 U.S. 600 (1971)."

(Chairman Truesdale and Members Hurtgen and Brame participated.)

* * *

Operating Engineers Local 150 (13-CD-582-1; 331 NLRB No. 179) Merrillville, IN Aug. 25, 2000. In this Section 10(k) proceeding, the Board concluded the employees of Diamond Coring Co., Inc., represented by Laborers Local 81, are entitled to perform the saw cutting of concrete work in dispute at a jobsite in Merrillville, IN. It held that Operating Engineers Local 150 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Brame participated.)

* * *

DaimlerChrysler Corp. (7-CA-40899, et al.; 331 NLRB No. 174) Auburn Hills, MI Aug. 25, 2000. The Board majority of Members Fox and Liebman adopted the administrative law judge's findings that the Respondent violated the Act by refusing to provide the Union with requested information relevant to its collective-bargaining duties; and by threatening Chief Steward Keith Valentin with discipline for filing information requests which it characterized as "offensive" and attempting to define and limit his rights as a union steward. [HTML] [PDF]

However, the panel reversed the judge's finding that the Respondent did not violate the Act by refusing to provide the Union with requested information listing all Chrysler employees who have been disciplined subsequent to any type of "last chance" agreement since April 23, 1993. On this issue, Member Brame dissented, agreeing with the judge's dismissal of the allegation. He stated:

As found by the judge, the Union entered into an agreement with the Respondent not to use the treatment of employees pursuant to 'last chance' agreements as precedent with regard to other employees. The effect of the parties' agreement is that the Respondent is not bound to treat the instant grievance in the same manner as it treated any past grievances. Thus, by entering into this agreement, the Union essentially agreed not to assert its right to allege disparate treatment based on 'last chance' agreements.

(Members Fox, Liebman, and Brame participated.)

Charges filed by Auto Workers (UAW) Local 412; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Detroit, on March 1-2, 1999. Adm. Law Judge Arthur J. Amchan issued his decision May 21, 1999.

* * *

Based on their dissenting opinion in Atlantic Limousine, 331 NLRB No. 134, and applying Sony Corp. of America, 313 NLRB 420 (1993), Members Hurtgen and Brame would overrule the Petitioner's Objection 5 and certify the election results.

(Full Board participated.)

* * *

Navigator Communications Systems, LLC et al. (34-CA-8215, 8328; 331 NLRB No. 142) Stamford, CT Aug. 22, 2000. Agreeing with the administrative law judge, the Board held that Respondents Navigator Communications Systems, LLC (Navigator), Aviator Voice/Data, LLC (Aviator), and KM Communications, LLC (KM) functioned as a single-integrated enterprise and a single employer within the meaning of the Act and ordered that the Respondents jointly and severally remedy the unfair labor practices found. Specifically, Respondents violated Section 8(a)(5) and (1) of the Act by ceasing Navigator's operations and laying off all its unit employees on August 15, 1997 without affording the Electrical Workers (IBEW) International with advance notice and an opportunity to bargain regarding the effects of the decision to cease operations on unit employees; failing to abide by the terms of the collective-bargaining agreement without the Union's consent; and failing to furnish the Union, on request, with information regarding the terms and conditions of employment of unit employees. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Brame participated.)

Charges filed by Electrical Workers (IBEW) International; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Hartford, July 20 and Aug. 12-13, 1999. Adm. Law Judge Michael A. Marcionese issued his decision Nov. 17, 1999.

* * *

Projections, Inc. (34-CA-9217; 331 NLRB No. 135) Hartford, CT Aug. 23, 2000. Chairman Truesdale and Member Hurtgen, with Member Brame dissenting, denied the Charged Party's petition to revoke the subpoena duces tecum, finding that the material sought is relevant to the General Counsel's investigation of the liability of the Charged Party (Projections, Inc.) for the conduct alleged in the unfair labor practice charge. The majority disagreed with their dissenting colleague that compliance with the subpoena would implicate the Charged Party's rights under Section 8(c) of the Act or the free speech provisions of the Constitution. [HTML] [PDF]

The Regional Director issued the subpoena to the Charged Party as part of the Region's investigation of an unfair labor practice charge filed by Communications Workers Local 1298 against TCI Cablevision of South Central Connecticut in Case 34-CA-9147. In the instant charge, the Union claims that the Charged Party violated Section 8(a)(1) of the Act by certain statements in its video, "Little Card, Big Trouble," which it sold to TCI and which was shown to TCI's employees during the Union's organizational campaign at TCI. The subpoena seeks documents relating to the purchase of the video from the Charged Party by TCI, which the General Counsel contends are relevant to establishing an agency relationship between TCI and the Charged Party.

(Chairman Truesdale and Members Hurtgen and Brame participated.)

* * *

Baker Victory Services, Inc. (3-RC-10760; 331 NLRB No. 146) Buffalo, NY Aug. 23, 2000. The Board reaffirmed the standard set forth in V.I.P. Limousine, Inc., 274 NLRB 641 (1985), that an election should be set aside where severe weather conditions on the day of the election reasonably denied eligible voters an adequate opportunity to vote and a determinative number did not vote. In so doing, the Board rejected the "representative complement" standard set forth in the plurality opinion in Glass Depot, Inc., 318 NLRB 766 (1995). [HTML] [PDF]

Applying the V.I.P. Limousine standard to the facts of this case, the Board set aside the election in the professional group (group A) because severe weather conditions on the day of the election reasonably denied eligible voters an adequate opportunity to vote and a determinative number did not vote. The Board vacated the Regional Director's Certification of Representative and remanded the case to the Regional Director to hold a new election.

The Employer operates early childhood programs (ECPs) in Buffalo. The Communications Workers seeks to represent various classifications of the Employer's ECP employees. The Regional Director directed an election, finding appropriate two separate units of employees: all professional employees (group A) and nonprofessional employees (group B). Consistent with Sonotone Corp., 90 NLRB 1236 (1950), the professional employees additionally voted for inclusion in a unit with the nonprofessional employees or for separate representation.

More than 4 feet of snow fell in the area during the 2-week period preceding the election, and a state of emergency was declared for the city during the week of the election. The school at which the election was conducted was closed on the day of the election, thereby relieving a significant number of employees of the obligation to report to work. The Employer's ECP facility at the school, however, remained open. The election was conducted as scheduled on January 14, 1999. The Petitioner received a majority of the votes cast in both the professional and nonprofessional voting groups. Among the professional employees, 32 of 51 eligible employees voted, with 17 voting for and 15 against, the Petitioner, and 1 challenged ballot; among the nonprofessional group, 19 of 21 eligible employees voted, with 17 voting for and 2 against, the Petitioner.

The Board wrote in concluding that the eligible employees were not afforded an adequate opportunity to vote: "As the votes of the nonparticipating eligible employees in group A would have been determinative of the election results, we conclude that the election among the professional employees in group A must be set aside." Because under Sonotone, if the professional employees vote to be included in the same unit with the nonprofessional voters, the votes of the professional employees will be counted with the votes of the nonprofessional employees to determine whether the combined unit has voted for union representation, the Board set aside the results of the election among the nonprofessional employees (group B) as well so that a new election can be conducted utilizing the same eligibility date for both groups of voters.

(Chairman Truesdale and Members Fox and Brame participated.)

* * *

Seattle Opera Association (19-RC-13939; 331 NLRB No. 148) Seattle, WA Aug. 24, 2000. The Board concluded, contrary to the Regional Director, that the Employer's auxiliary choristers are employees within the meaning of Section 2(3) of the Act. The Employer is a not-for-profit opera company engaged in producing approximately five operatic productions per year in Seattle, Washington. The Petitioner, American Guild of Musical Artists, currently represents a unit of choristers, dancers, stage managers, assistant stage managers, and assistant stage directors. It seeks to add alternate and auxiliary choristers to the existing unit by a self-determination election. The parties agree that alternate choristers are statutory employees and are properly included in the appropriate voting group. [HTML] [PDF]

Relying on WBAI Pacifica Foundation, 328 NLRB No. 179 (1999), and Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), the Regional Director found that the auxiliary choristers are not statutory employees, but are volunteers, based on the absence of a sufficient economic relationship with the Employer. The Board disagreed, applying WBAI and NLRB v. Town & Country Electric, 516 U.S. 85 (1995). "Central to our analysis is that there is an economic relationship with the Employer," the Board said. It found that auxiliary choristers receive monetary remuneration which is compensation for their work.

The Board noted other factors further supporting its finding of employee status including: auxiliary choristers sign a letter of intent and sign in at each rehearsal, agreeing to attend rehearsals and performances on time, at times designated by the Employer; auxiliary choristers are given explicit instructions on decorum and conduct and are expected to comply with conditions set forth in a handbook developed specifically for them; and auxiliary choristers audition with alternates and, according to their handbook, receive feedback and are subject to normal expectations of performing the music and staging. Performing as an auxiliary chorister may lead to becoming an alternate, and then, a regular chorister. Auxiliary choristers share dressing rooms with regular choristers, are listed in the opera program along with all other choristers under the general heading "Chorus", and do not present receipts or expense reports, and receive the same compensation at the end of each production.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

* * *

The New Otani Hotel & Garden (21-RM-2623, 2627; 331 NLRB No. 159) Los Angeles, CA Aug. 24, 2000. Members Fox and Liebman agreed with the Regional Director that Hotel Employees and Restaurant Employees Local 11 has not demonstrated a present demand for recognition, and therefore affirmed the Regional Director's dismissal of the Employer's petitions to determine whether or not the Hotel's employees desired union representation. Member Hurtgen dissented. [HTML] [PDF]

The Employer asserted that the Union has been engaging in efforts to organize the employees at its hotel for 4 years, and that the Union's picketing/boycott of the hotel and repeated requests that it sign a neutrality/card check agreement amounted to a present demand for recognition. Members Fox and Liebman disagreed and denied the Employer's requests for review of the Regional Director's decision. They noted that under Section 9(c)(1)(B)-enacted by Congress as part of the Taft-Hartley Act of 1947-an employer is entitled to an election only if a claim is made by a party that it is the majority representative of the employees. Members Fox and Liebman explained:

The legislative history shows that Congress therefore included the language limiting employer petitions to cases in which the union has presented a 'claim to be recognized as the representative in section 9(a),' and that Congress understood this language to mean that employers could ask for an election only after a union had sought recognition as the majority representative of the employees. . . .

The mere fact that the union is engaged in activities which it hopes will enable it eventually to obtain recognition by the employer is not evidence of a present demand for recognition such as would support the processing of an employer petition.

Dissenting Member Hurtgen would grant the Employer's requests for review. He concluded that the totality of the circumstances raises a genuine issue as to whether the Union was seeking recognition. These circumstances include (1) picketing for a recognition object; (2) engaging in an organizational campaign; (3) seeking an employe agreement to recognize the Union upon acquisition of card majority status. Member Hurtgen wrote:

My colleagues apparently distinguish between a present demand for recognition and an ultimate demand for recognition. However, Section 9(c)(1)(B) contains no distinction. And, even if it did, it is at least arguable that . . . the Union is presently seeking recognition in these cases.

My colleagues cite the language of Section 9(c)(1)(B), and they argue that an employer petition (RM) must be supported by a claim for recognition. The argument misses the mark. No one is contending that an employer can force an election on a union that has not made a claim for recognition. Rather the issue in this case is whether the Union has made a claim for recognition so as to warrant the processing of the RM petitions.

(Members Fox, Liebman, and Hurtgen participated.)

* * *

Pennsylvania Transformer Technology (6-CA-29448; 331 NLRB No. 151) Canonsburg, PA Aug. 25, 2000. The Board affirmed the administrative law judge's finding that Respondent Pennsylvania Transformer is a successor to Cooper Power Systems, and that it violated Section 8(a)(5) and (1) of the Act by failing to recognize the Steelworkers as the collective-bargaining representative of its production and maintenance employees pursuant to a recognition request made on March 30, 1998. In so concluding, the Board found merit in the General Counsel's exception to the judge's failure to find specifically that, as of April 1998, the Respondent had hired a substantial and representative complement of employees, and rejected the Respondent's contention that the Union's demand for recognition in April 1998 was premature. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Pittsburgh on July 7, 1998. Adm. Law Judge Karl H. Buschmann issued his decision Sept. 30, 1998.

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M.B. Sturgis, Inc. and Jeffboat Div., American Commercial Marine Service Co. (14-RC-11572, 9-UC-406; 331 NLRB No. 173) Maryland Heights, MO Aug. 25, 2000. The Board held that employees obtained from a labor supplier may be included in the same bargaining unit as the permanent employees of the employer to which they are assigned, when the supplied employees are jointly employed by both employers. The majority opinion was by Chairman Truesdale and Members Fox and Liebman, and came in a consolidated case also involving the Jeffboat Division of American Commercial Marine Service Company. [HTML] [PDF]

In so holding, the Board overruled Lee Hospital, 300 NLRB 947 (1990), which held that bargaining units including jointly employed employees together with the employees of the user employer are multiemployer bargaining units and require the consent of the employers. Rejecting Lee Hospital, the Board concluded:

In a unit combining the user employer's solely employed employees with those jointly employed by it and a supplier employer, all of the work is being performed for the user employer. Further, all of the employees in the unit are employed, either solely or jointly, by the user employer. Thus, it follows that a unit of employees performing work for one user employer is an "employer unit" for purposes of Section 9(b).

Because these combined units are employer units under the statute, the Board said it would apply its traditional community of interest analysis to determine their appropriateness on a case-by-case basis.

The Board also clarified the decision in Greenhoot, 205 NLRB 250 (1973), in which a petitioned-for unit of employees of a supplier employer, who were assigned to work in 14 separate office buildings, was found an inappropriate multiemployer unit, and 14 separate units were instead found appropriate. As that decision is clarified in Sturgis,

a petition that names as the employers unrelated employers will be treated as seeking an inappropriate multiemployer unit absent the consent of all the employers; a petition that seeks a unit only of the employees supplied to a single user, or seeks a unit of all the employees of a supplier employer and names only the supplier employer, does not involve a multiemployer unit.

Member Brame, in dissent, concluded that units including both solely employed and jointly employed employees are multiemployer units under Section 9(b) because, although the employees have an employer in common, they do not share the same employer. Therefore, in Member Brame's view, the Board lacks authority to require employers to bargain in such a unit without their consent. Moreover, Member Brame found that the majority's broad holding concerning these units disregards the diversity of temporary employment arrangements and the conflicting interests of user and supplier employers.

Member Hurtgen was recused from participating in the decision and took no part in its consideration or disposition.

(Chairman Truesdale and Members Fox, Liebman, and Brame participated.)

* * *

Oklahoma Fixture Co. (17-CA-18734, 19036; 331 NLRB No. 145) Tulsa, OK Aug. 25, 2000. Chairman Truesdale and Member Hurtgen found, contrary to the administrative law judge and dissenting Member Liebman, that the Respondent did not fail to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act during negotiations for a successor collective-bargaining agreement covering a unit of employees known as the "outside" unit. Instead, they found that the Respondent utilized lawful bargaining pressure in an effort to secure from the Union an agreement that met its express goal in the negotiations, i.e., the elimination of the contractual requirement to hire employees through the Union's hiring hall. Chairman Truesdale and Member Hurtgen agreed with the judge that the Respondent violated Section 8(a)(5) and (1) by ceasing to deduct fees from employees' pay and by ceasing to remit those sums to Carpenters Local 943, with respect to another unit of employees known as the "inside" unit. [HTML] [PDF]

Member Liebman, dissenting in part, would find that the Respondent failed to bargain in good faith in violation of Section 8(a)(5) and (1), relying on "substantial" evidence establishing that the Respondent's regressive final offer was designed to frustrate the possibility of arriving at an agreement with the Union. She wrote:

I emphasize that my disagreement with the majority is primarily factual and centers on two key points. First, the record does not support the majority's finding that the Respondent adequately supplied an explanation for the changes in its final offer. Second, the record clearly establishes, contrary to the majority's finding, that although the parties were not at impasse, the Respondent was unwilling to meet with the Union for further negotiations after the Respondent presented its final offer.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Carpenters Local 943; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Tulsa on June 2, 1997. Adm. Law Judge Pargen Robertson issued his decision Aug. 14, 1997.

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Tri-County Transportation (7-CA-40201(1), et al.; 331 NLRB No. 152) Cadillac, MI Aug. 25, 2000. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) of the Act by discharging Lillian Dick, Ivan Dick, and John Croskey because they engaged in protected concerted activity when filing unemployment compensation claims; and by promulgating, maintaining, and enforcing a rule precluding employees from acting concertedly in presenting work-related concerns to higher management officials of Tri-County or third parties. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Hurtgen participated.)

Charges filed by Lillian Dick, Ivan Dick, and John Croskey, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cadillac, June 25-26, 1998. Adm. Law Judge Robert T. Wallace issued his decision March 16, 1999.

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Electrical Workers (IBEW) Local 98 (AIMM, Inc.) (4-CD-1017; 331 NLRB No. 156) Philadelphia, PA Aug. 24, 2000. The Board decided that employees of AIMM, Inc., represented by the Caprenters Metropolitan Regional Council of Philadelphia & Vicinity, are entitled to perform the work of unloading, moving and installation of refrigerators and television sets at the Hotel Sofitel in Philadelphia, Pennsylvania. The Board considered all the relevant factors and awarded the work based on the terms of the collective-bargaining agreement between the Employer and the Carpenters, the Employer's preference and past practice, the economy and efficiency of the Employer's operation resulting from its current assignment of the work to its Carpenter employees. [HTML] [PDF]

(Members Fox, Liebman, and Brame participated.)

* * *

The issue presented in the instant case is whether the Employer engaged in objectionable conduct by holding a raffle on the day of the election which the union lost (29 votes for, 85 against). The Regional Director found that the raffle passed muster under Sony Corp. of America, 313 NLRB 420 (1993). The Board majority, however, reversed the Regional Director, adopted a new per se rule banning raffles, and directed that a third election be held. It explained the new rule as follows:

Specifically, our rule prohibits employers and unions from conducting a raffle if (1) eligibility to participate in the raffle or win prizes is in any way tied to voting in the election or being at the election site on election day or (2) the raffle is conducted at any time during a period beginning 24 hours before the scheduled opening of the polls and ending with the closing of the polls. The term "conducting a raffle" includes the following: (1) announcing a raffle; (2) distributing raffle tickets; (3) identifying the raffle winners; and (4) awarding the raffle prizes. If there is a showing that such a raffle has occurred during the proscribed period, we will set aside the election upon the filing of a valid objection. We will also look with disfavor on attempts to circumvent this rule by, for example, announcing a raffle more than 24 hours before the opening of the polls and then completing the raffle immediately after the closing of the polls.

In dissent, Members Hurtgen and Brame stated:

There is no reason to abandon 31 years of the 'relevant circumstances' approach. The Board should apply that approach to raffles just as it does in other areas of Board law.

In addition, the new rule itself is unwise policy. The Sony test shows, that none of the potential harms that the Board has traditionally found may stem from raffles are present here.

(Full Board participated.)

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Transportation Maintenance Services, L.L.C. (14-CA-25682; 331 NLRB No. 140) Bridgeton, MO Aug. 17, 2000. Based on a stipulated record, the Board held, in a 4-1 decision, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain collectively with Teamsters Local 618 following issuance of the Board's 1999 order in Transportation Maintenance Services, 328 NLRB No. 93, (Transportation Maintenance I). The majority decision was by Chairman Truesdale and Members Fox, Liebman, and Hurtgen. Member Brame dissented. [HTML] [PDF]

Previously, on July 21, 1998, the Board issued an order which (1) granted the Petitioner's request to withdraw the decertification petition in Case 14-RD-1568, and (2) expressly closed the decertification case. In Transportation Maintenance I, the Board denied the Respondent's motion for reconsideration of the 1998 order.

The majority found that the Respondent's contention-that the impounded ballots in the election should be opened and counted, and an appropriate certification issued-to be without merit, noting that the contention was raised in the Respondent's motion for reconsideration and was rejected by the Board in Transportation Maintenance I. It noted that the Respondent failed to adduce any newly discovered and previously unavailable evidence, or allege any special circumstances that would require the Board to reexamine the decision made in Transportation Maintenance I. The Respondent also contended that it had no duty to bargain with the Union because a reasonable time for bargaining had elapsed prior to the decertification petition being filed. The majority found that the issue is moot in view of the Board's approval of the Petitioner's request to withdraw the decertification petition in Transportation Maintenance I.

Member Brame dissented from the finding that the Respondent violated Section 8(a)(5) and (1) because he would have granted the Respondent's motion for reconsideration of the Board's approval of the Petitioner's request to withdraw the decertification petition; rescinded the approval of the withdrawal; ordered that the impounded ballots be opened and counted; and issued an appropriate certification based on the results of the voting.

(Full Board participated.)

Charge filed by Teamsters Local 618; complaint alleged violation of Section 8(a)(1) and (5). Parties waived their right to a hearing before an administrative law judge.

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JPH Management, Inc. d/b/a Mid-Wilshire Health Care Center (31-CA-24055; 331 NLRB No. 129) Los Angeles, CA Aug. 15, 2000. Members Fox and Liebman granted in part and denied in part the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain collectively with Service Employees Local 399 by bypassing the Union and dealing directly with unit employees about their working conditions. Member Brame, concurring in part and dissenting in part, would deny the General Counsel's motion in toto. [HTML] [PDF]

On December 13, 1999, the Respondent submitted a letter to the Region purporting to answer the allegations of the complaint. The Respondent's September 7, 1999 letter to the Region, incorporated by reference to its December 13 letter, was the Respondent's statement of position submitted to the Region in response to the August 16, 1999 unfair labor practice charge.

Members Fox and Liebman found that the pro se Respondent's effective denial of the allegations in complaint paragraphs 10(a) and (c) raise substantial issues of fact warranting a hearing. Specifically, they noted that with respect to complaint paragraph 10(a), the Respondent has supplied an answer for why it did not sign the allegedly agreed upon collective-bargaining agreement, and with respect to paragraph 10(c), the Respondent stated that it "has not unilaterally altered the terms and conditions of the agreement." Members Fox and Liebman granted the General Counsel's motion with respect to complaint paragraphs 1-9, 10(b), and 11-14, finding that the Respondent did not effectively deny them in its correspondence of December 13 and September 7.

Member Brame found that the Respondent's December 13, 1999 letter is a sufficient denial of all the complaint allegations to put them at issue and require the General Counsel to prove them at a hearing, not just the allegations concerning complaint paragraphs 10(a) and (c).

(Members Fox, Liebman, and Brame participated.)

Charge filed by Service Employees Local 399; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment Jan. 24, 2000.

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Carpenters Local 558 (Joyce Brothers Storage & Van Co.) (13-CD-549; 331 NLRB No. 131) Melrose Park, IL Aug. 14, 2000. The Board quashed the amended notice of hearing, concluding that competing claims to the disputed work no longer exist and that there is no reasonable cause to believe that Carpenters Local 558 violated Section 8(b)(4)(D) of the Act. [HTML] [PDF]

The work in dispute is the assembly and disassembly of furniture, including cubicles, owned by Midcon Corporation at its Lombard, Illinois facility. For at least 10 years, employees of Joyce Brothers represented by Teamsters Local 705 have periodically performed the work. On January 14, 1998, the Carpenters' business manager and business representative visited the Midcon jobsite, where they observed four men installing cubicles. They asked for the men's union cards. Two did not have union cards and the other two, one of whom was Charging Party Ira Gleason, were members of Teamsters Local 705. The Carpenters officials went to see facility manager Carol Doerr. According to Doerr, they told her that she needed to "stop having the cubicle furniture put together by Joyce Brothers," as she was "taking food out of their children's mouths. And that they would picket." Doerr stopped construction at Midcon and contacted Joyce Brothers. Thereafter, Joyce Brothers subcontracted with Chicago Installation Company, which provided employees represented by Carpenters Local 508. Employees represented by Teamsters Local 705 have not performed the cubicle work at Midcon since January 14, 1998.

On February 11, 1998, Gleason, then union steward for Teamsters Local 705, filed the instant charge, alleging that Carpenters Local 558 engaged in proscribed activity with an object of forcing Joyce Brothers to assign the work to employees that it represented rather than to employees represented by Teamsters Local 705. Thereafter, the Teamsters disclaimed the work in a letter from its counsel to counsel for the Carpenters and at the hearing for the limited purpose of taking evidence on the Carpenters' motion to quash the 10(k) hearing. The hearing officer granted the Carpenters' motion to quash, finding that the Teamsters had effectively disclaimed the work. Thereafter, Joyce Brothers requested special permission to appeal the hearing officer's ruling and, on July 28, 1999, the Board granted the request. Prior to the second hearing, counsel for the Teamsters wrote to the Regional Director to reiterate its disclaimer.

The Board found that Teamsters Local 705 has effectively and unequivocally disclaimed the work. It rejected Joyce Brothers' contention that the stated desire of Charging Party Gleason and other bargaining unit employees to continue to do the cubicle work creates a continuing jurisdictional dispute. The Board wrote: "Gleason filed his charge in order to get an answer to his question about who had a right to the cubicle work, not to assert a claim to the work. Consequently, there is no dispute."

(Members Liebman, Hurtgen, and Brame participated.)

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D & E Electric (14-CA-25491, 14-RC-12015; 331 NLRB No. 136) Overland, MO Aug. 15, 2000. The Board affirmed the administrative law judge's recommendations to dismiss complaint allegations that the Respondent violated Section 8(a)(1) of the Act by packing the unit; and to overrule the Union's election objections, challenging the ballots of three employees on the basis that the Respondent hired them as a part of a unit packing scheme. It remanded Case 14-RC-12015 to the Regional Director to open and count the ballots of James Lysell, John Strasburger, and Thomas Paluczak, and to issue a revised tally of ballots and the appropriate certification. The election held on March 12, 1999 resulted in 6 votes for and 5 against, Electrical Workers (IBEW) Local 1. [HTML] [PDF]

Chairman Truesdale did not rely on the judge's finding that the remark by Respondent's owner Edward Hagelstein that he "didn't think [the employees] needed the union," is not evidence of union animus because it was protected speech under Section 8(c) of the Act. The Chairman wrote: "The Board has held that an employer's antiunion comments while themselves protected speech, may nevertheless establish animus toward its employees' union activities. See Ross Stores, 329 NLRB No. 59 (1999); Lampi LLC, 327 NLRB No. 51 (1998)."

Although they acknowledged that the Board has taken a contrary view in the cases cited by the Chairman, Members Hurtgen and Brame did not rely on the remarks protected by Section 8(c) as evidence of animus. See their dissenting positions in Ross Stores, supra, slip op. at 8 and 12 and fn. 17, and Lampi, supra, slip op. at 4 fn. 7. They said "this difference of position does not affect the adoption of the judge's dismissal of the instant complaint."

(Chairman Truesdale and Members Hurtgen and Brame participated.)

Charge filed by Electrical Workers (IBEW) Local 1; complaint alleged violation of Section 8(a)(1). Hearing at St. Louis, July 8-9, 1999. Adm. Law Judge Jerry M. Hermele issued his decision Sept. 22, 1999.

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Mike Basil Chevrolet (3-AC-42; 331 NLRB No. 137) Hamburg, NY Aug. 16, 2000. The Board agreed with the Regional Director that the affiliation proceedings of a small independent labor organization, the Hamburg Employees Union (HEU), and the Petitioner Auto Workers Local 55, a larger labor organization, met the due process requirements of the Board. But, it found, contrary to the Regional Director, that the affiliation resulted in sufficient continuity of representation and amended the certification, as requested. [HTML] [PDF]

The Board in 1979 certified HEU as the exclusive representative of the service employees of Jack Adkins Chevrolet, the Employer's predecessor. The Employer commenced operations in 1995 and assumed a collective-bargaining agreement between Jack Adkins Chevrolet and HEU, which was effective by its terms from September 1, 1994 to August 31, 1997. The affiliation vote was held on July 24, 1996. A majority of the HEU represented employees voted to approve an affiliation of HEU with the Petitioner. The Petitioner then filed the instant request to amend the certification to designate the Petitioner as the representative of the bargaining unit employees.

Applying Western Commercial Transport, 288 NLRB 214 (1988), the Board explained in holding that the significant factor is whether there is an identify change as a result of the affiliation: "As the Board said in Western Commercial Transport, the critical question is whether the '[c]hanges are so great that a new organization has come into being . . . .' Affiliations will often make a change in the structure of the representing union but not every change raises a question concerning representation."

The Board held in this decision: "The changes resulting from the affiliation of HEU with the Petitioner present an example of such a situation. The employees voted unanimously to affiliate with a larger organization. Although this will result in some loss of autonomy previously enjoyed by these employees, they will continue to have a voice in the administration of their collective-bargaining representative after affiliation."

In finding that the differences in dues structure between HEU and the Petitioner do not amount to such a significant change as to raise a question concerning representation, the Board wrote: "There is no initiation fee for those transferring from HEU, and we do not consider the increase in dues from approximately 1 hour's pay per month to slightly over 2 hours' pay to be significant. As the Board has indicated in other cases, we believe it is reasonable to assume that employees who vote to affiliate and thereby attain stronger representation and better services expect that it will be more expensive."

(Chairman Truesdale and Members Fox and Liebman participated.)

* * *

Applying the framework set forth in the EEOC's opinion letter, we find that the ADA 'permits' the Respondent to provide the Union with Booze's medical information, but the 'information [the Respondent] may share with [the Union] is strictly limited to that which is necessary for [the Union] to fulfill its role in the accommodation process. Necessary information often will not encompass the entire contents of an employee's medical file.' In other words, only that medical information concerning Booze that the Union truly needs may be disclosed to it. All other medical information must be kept confidential by the Respondent.

The Board, citing GTE Southwest, 329 NLRB No. 57, decided that the appropriate remedy is to first allow the parties an opportunity to bargain in good faith regarding the conditions under which the Union's need for the relevant information could be satisfied with appropriate safeguards protective of the Respondent's legitimate confidentiality concerns. The Board explained: "Under this approach, we recognize that if the Respondent and the Union are unable to reach agreement on a method of protecting their respective interests, the parties may be back before us again. If there is a question, as to whether the parties have bargained in good faith, we shall make that determination."

(Chairman Truesdale and Members Liebman and Brame participated.)

Charge filed by the Western Council of Industrial Workers; complaint alleged violation of Section 8(a)(1) and (5). Parties waived their right to a hearing before an administrative law judge.

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Richards and Conover Steel Co. (17-CA-20359, et al.; 331 NLRB No. 123) Kansas City, MO Aug. 10, 2000. Granting the General Counsel's motion for summary judgment, the Board held that the Respondent violated Section 8(a)(5), (3), and (1) of the Act in various respects, including failing to bargain collectively with the Union about the effects on unit employees of the sale of the Respondent's rolling division and steel warehouse; failing to continue in effect all the terms and conditions of the 1999-2002 collective-bargaining agreement without the Union's consent; and laying off Chester Williams because he engaged in union and protected concerted activities. The Board granted the General Counsel's motion for summary judgment based on the withdrawal of the Respondent's answer to the original complaint in Case 17-CA-20359, and the Bankruptcy Trustee's consent to the entry of a judgment pursuant to the consolidated complaint. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Brame participated.)

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1), (3), and (5). General Counsel filed motion for summary judgment May 30, 2000.

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Lasalle Bus Service (29-CA-22682, 22859; 331 NLRB No. 118) Brooklyn, NY Aug. 10, 2000. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) of the Act by discharging Freddie Bowles, Jermaine Phillip, Camino Marin, Lionel Merilien, and Joe Frank because of their protected activities (engaging in a strike to protest Bowles' discharge); and failing to offer reinstatement to Bowles. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Brame participated.)

Charge filed by Freddie Bowles, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn on Oct. 28, 1999. Adm. Law Judge D. Barry Morris issued his decision Dec. 14, 1999.

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V.I.P. d/b/a Olympic Specialties (28-CA-15938; 331 NLRB No. 127) Clark County, NV Aug. 11, 2000. Agreeing with the administrative law judge, the Board dismissed the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Timothy Fee because he engaged in union and other protected, concerted activity, i.e., contacting the Federal and state departments of labor and the school districts, complaining of his and other employees' wage inadequacy, and soliciting union authorization cards. The Respondent is engaged in business as an electrical contractor at various jobsites in Nevada including one at Valley High School in Clark County, Nevada. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Brame participated.)

Charge filed by Electrical Workers (IBEW) Local 357; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Las Vegas on April 11, 2000. Adm. Law Judge James L. Rose issued his decision June 2, 2000.

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Midon Restaurant Corp., d/b/a Burger King (3-CA-22075; 331 NLRB No. 128) Albany, NY Aug. 11, 2000. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by restricting solicitation at its facility, especially when employees are on the clock. The Respondent argued in its exceptions that the judge should have dismissed the complaint based on the Board's decision in Super-H Discount, 281 NLRB 728 (1986), which he cited in finding the violation. The Board, noting that the present situation is factually distinguishable from Super-H Discount, found it unnecessary to pass on the continuing validity of Super-H Discount in the context of this case. In both cases, the employer promulgated an overly broad no-solicitation rule restricting an employee's union activities. In Super-H Discount, the Board found that the Employer established that its prohibition was a one-time incident that went ignored by the employee to whom it was directed since he continued to engage in union activities while "on the clock" without further restraint. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Industrial Workers of the World, Philadelphia General Membership Branch; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Albany on March 6, 2000. Adm. Law Judge Joel P. Biblowitz issued his decision June 16, 2000.

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Tann Electric (17-CA-17811; 331 NLRB No. 130) Mission, KS Aug. 11, 2000. The Board affirmed the administrative law judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act based on the Respondent's changing its hiring policies and practices in 1994 and 1995, purportedly for the purpose of excluding union applicants. In doing so, it found that the lawfulness of the policy changes was neither properly alleged in the amended complaint nor litigated at the hearing. The Board remanded the proceeding to the judge for further consideration under the FES framework, and reopening of the record if necessary, concerning whether the Respondent discriminatorily refused to hire alleged discriminatees Kevin McConnell, Allan Ward, Harvey Henry, Clint Klinge, and Frank Matthews. In FES (A Division of Thermo Power), 331 NLRB No. 20, which issued subsequent to the judge's decision, the Board set forth the framework for analysis of refusal-to-hire and refusal-to-consider violations. [HTML] [PDF]

(Chairman Truesdale and Members Fox and Liebman participated.)

Charge filed by Electrical Workers (IBEW) Local 124; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Overland Park, Jan. 21-22, 1997. Adm. Law Judge George Carson II issued his decision May 23, 1997.

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Nicholas County Health Care Center (9-CA-33210, et al.; 331 NLRB No. 122) Richwood, WV Aug. 9, 2000. Citing Caterair International, 322 NLRB 64 (1996), the Board agreed with the administrative law judge that an affirmative bargaining order is warranted in this case to remedy the Respondent's unlawful withdrawal of recognition from Health Care and Social Service District 1199, SEIU. It adhered to the view, reaffirmed in Caterair, that an affirmative bargaining order is the "traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective bargaining representative of an appropriate unit of employees." Id. at 68. [HTML] [PDF]

The Board acknowledged that the D.C. Circuit has required, in several cases, that it justify, on the facts of each case, the imposition of such an order. See e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248 (D.C. 1994). In Vincent Industrial Plastics, the court held that an affirmative bargaining order "must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees' § 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations." 209 F.3d 738.

"Although we respectfully disagree with the court's requirement for the reasons set forth in Caterair, we have examined the particular facts of this case as the court requires and find that a balancing of the three factors warrants an affirmative bargaining order," the Board wrote. It noted that the Respondent's other unfair labor practices were serious and numerous and included: threats to terminate and permanently replace employees if they engaged in an unfair labor practice strike; failing to reinstate unfair labor practice strikers; discontinuing contractual grievance procedure provisions; unilaterally granting a wage increase; telling employees not to discuss the Union or the NLRB while at work; coercively interrogating employees about their protected activities and telling them to cease such activities; and offering an employee her choice of a position if she did not participate in the strike.

The Board found, as did the judge, that the 1996 decertification petition did not reflect employee free choice, but rather the effect of the Respondent's most serious prewithdrawal unfair labor practices. It concluded that the affirmative bargaining order "removes the Respondent's incentive to delay bargaining or to engage in any other conduct designed to further discourage support for the Union" and "ensures that the Union will not be pressured, by the possibility of a decertification petition, to achieve immediate results at the bargaining table following the Board's resolution of its unfair labor practice charges and issuance of a cease-and-desist order." Thus, concluding that an affirmative bargaining order with a temporary decertification bar is appropriate, the Board stated: "A cease-and-desist order, without a temporary decertification bar, would be inadequate to remedy the Respondent's violations because it would permit a decertification petition to be filed before the Respondent had afforded the employees a reasonable time to regroup and bargain through their representative in an effort reach a collective-bargaining agreement."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Health Care and Social Service District 1199, SEIU; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Richwood, on 12 dates between July 23 and Oct. 3, 1996. Adm. Law Judge Richard A. Scully issued his decision Sept. 30, 1997.

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Valentine Painting and Wallcovering, Inc. (29-CA-22752; 331 NLRB No. 109) Patchogue, NY July 28, 2000. The Board upheld the administrative law judge's decision that the Respondent failed and refused to hire Ronald Caputo on March 11, 1999 because of his union activities and affiliation in violation of Section 8(a)(3) and (1) of the Act. [HTML] [PDF]

(Members Fox, Liebman, and Hurtgen participated.)

Charge filed by Ronald Caputo, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn. Adm. Law Judge Steven Davis issued his decision March 27, 2000.

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Mt. Sinai Hospital (2-CA-28197; 331 NLRB No. 111) New York, NY July 31, 2000. Affirming the administrative law judge, the Board held the Respondent violated Section 8(a)(5) of the Act by (1) unilaterally reclassifying employees in the unit position of sous chef to the nonunit position of assistant culinary manager and transferring the work of the employees out of the bargaining unit; and (2) refusing to provide the Union with the wage rates and job descriptions of the two positions. [HTML] [PDF]

In finding the Respondent's unilateral action constituted a change in the scope of the unit, the panel majority of Chairman Truesdale and Member Fox stated in a footnote:

As the Board stated in Holy Cross Hospital, 319 NLRB 1361 (1995), once a position has been included within the scope of the unit, the employer cannot remove it without the consent of the union or the Board. Here, the parties agreed to arbitrate the unit status of the sous chefs, and the arbitrator placed them in the unit. The Respondent effectively removed the position of sous chef from the unit when it reclassified the three employees who occupied the position but continued to have them do the same work. Moreover, the unit sous chef position that the Respondent subsequently posted was substantially altered. Thus, the Respondent violated Sec. 8(a)(5) of the Act by reclassifying the position in order to remove it from the unit. There is no dispute that the Respondent never consulted with the Union and that the Union never agreed in the contract to the alteration.

Finally, we agree with the judge's alternative rationale-and the one on which our concurring colleague relies, that even were the Respondent's unilateral change to constitute a transfer of unit work, rather than an alteration of the unit, the Respondent violated Sec. 8(a)(5) because there had been no agreement, impasse, or waiver.

In a separate opinion concurring in part, Member Hurtgen said he would find the unilateral reclassification unlawful only as a unilateral transfer of unit work. He stated:

In my view, an employer does not have to bargain about the creation of a supervisory position. Nor does an employer have to bargain about the filling of that supervisory position. However, where, as here, a unit employee is selected for the supervisory position, and the promoted employee takes with him some of his unit work, the employer must bargain about