NLRB Decisions - 2001 January-June

Carpenters Local 275 (Lymo Construction Co.) (1-CD-1011; 334 NLRB No. 67) Manchester, NH July 3, 2001. The Board quashed the notice of hearing, after concluding that the dispute "is representational in nature, and is not the type of dispute Section 10(k) was designed to address," citing Glass & Pottery Workers Local 421 (A-CMI Michigan Casting Center), 324 NLRB 670, 674 (1997). Charging Party Lymco Construction Co. asserted that in late spring and early summer of 1999, assignment of its metal siding work on the Astra project in Waltham, Massachusetts was being disputed by competing demands of Sheet Metal Workers Local 17 and Carpenters Local 275. Following its assignment of the work to a composite crew of employees, some of whom were represented by the Carpenters and others by Local 17, the latter filed a grievance against Lymco alleging that it violated the contract's no-subcontracting clause. Lymco argued that Local 17's grievance filing and the Carpenters' threat to strike if Lymco changed the assignment constitute Section 8(b)(4)(D) violations and require the Board to enter a Section 10(k) award. The Board disagreed, finding that the dispute is not over the assignment of the work to one group of employees instead of a different group, but concerned which of two local unions should represent the employees currently performing the work. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

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Lee Lumber and Building Material Corp. (13-CA-29377, et al.; 334 NLRB No. 62) Chicago, IL June 28, 2001. The Board reaffirmed that when an employer has unlawfully refused to recognize or bargain with an incumbent union, any employee disaffection arising during the course of the unlawful conduct will be presumed to be caused by that conduct. Absent unusual circumstances, the presumption can be rebutted only if the employer can show that the disaffection arose after it resumed recognizing the union and bargained for a reasonable period of time without committing other unfair labor practices that would adversely affect the bargaining. The Board modified the "reasonable period of time" standard, however. It held that, in such circumstances, a "reasonable period of time" before the union's status as the employees' bargaining representative can be challenged will be no less than 6 months and no more than 1 year. [HTML] [PDF]

Whether a "reasonable period of time" is only 6 months, or some longer period up to 1 year, will depend on a multifactor analysis. Under that analysis, the Board will consider whether the parties are bargaining for an initial contract, the complexity of the issues being negotiated and the parties' bargaining procedures, the total amount of time elapsed since the bargaining commenced and the number of bargaining sessions, the amount of progress made in negotiations and how near the parties are to agreement, and whether the parties have bargained to impasse. The factors tending to establish that a reasonable period of time has elapsed are: bargaining for a renewal, as opposed to an initial agreement, the absence of unusually complex issues or bargaining processes, the passage of a relatively long time after the 6-month insulated period, a relatively large number of bargaining sessions, the parties' failure to come close to reaching agreement, and the existence of a bargaining impasse. The factors tending to establish that a reasonable period of time has not elapsed are: bargaining for an initial agreement, the existence of unusually complex issues or bargaining processes, relatively little passage of time after the 6-month period, a relatively small number of bargaining sessions, a strong likelihood of reaching agreement in the near future, and the absence of impasse.

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

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The Buschman Co. (9-CA-36311; 334 NLRB No. 63) Cincinnati, OH July 5, 2001. Members Liebman and Truesdale, with Chairman Hurtgen dissenting, agreed with the administrative law judge that a meeting of the minds existed on all material terms of the agreement, including an effective date, and that the Respondent violated Section 8(a)(5) and (1) of the Act when it refused to execute its collective-bargaining agreement with Ironworkers Local 522. [HTML] [PDF]

On July 8, 1998, the parties began negotiations for a successor agreement to the 1993-1998 agreement that was due to expire on August 6. At the first session, the Union proffered a complete proposal for a new agreement with an effective date of August 7. On August 5, the Respondent gave the Union a typed counterproposal of proposed changes to the existing agreement that contained no effective date. On August 6, the Union made its own handwritten counterproposal of changes that contained no effective date. The Respondent accepted the Union's counterproposal. The Union then distributed to employees a complete version of the new agreement that contained an effective date of August 7. The employees voted on August 6 not to ratify the agreement and went on strike. On September 4, the employees voted to accept the August 6 proposal and the Union presented to the Respondent an executed copy of the ratified agreement, which included the August 7 effective date. On September 8, the Respondent sent a proposed "strike settlement agreement" to the Union, which contained numerous terms that were the subject of previous negotiations. The Union rejected it. On September 13, the Union sent a copy of the signed August 6 agreement to the International Union for its approval. The International approved the agreement on September 17, and on September 23, the Union mailed a copy of the approved agreement to the Respondent.

The judge found, and the majority agreed, that the Respondent clearly communicated its position that the Union was, at all times between August 6 and September 4, free to accept the August 6 agreement and that when the Union did so on September 4, it created a binding contract that the Respondent was required to execute. The majority rejected the Respondent's contentions that there was no meeting of the minds on an effective date and that employee ratification of the August 6 agreement did not create a binding contract because the agreement specifically required the International Union's approval before it would become binding, which did not occur until September 17 -- after it modified the agreement by proposing new terms in the form of the "strike settlement agreement." The majority found the International's approval was "merely perfunctory" and that the contract was binding on the parties before the Respondent attempted to modify it on September 8.

In dissent, Chairman Hurtgen found that there never was a meeting of the minds as to the effective date because the purported contract was based on the August 6 proposal, and that proposal contained no effective date. He also concluded that it has not been established that International action was purely ministerial.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Ironworkers Local 522; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cincinnati, March 1-2, 1999. Adm. Law Judge William N. Cates issued his decision May 11, 1999.

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Gallup, Inc. (16-CA-20442; 334 NLRB No. 52) Austin, TX June 27, 2001. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by temporarily closing its Austin, Texas facility, from May 25-30, 2000, because of the Union's organizing efforts; and that the posting of a memorandum on May 26, 2000, informing employees that the facility was temporarily closed because of the Union campaign was an independent violation of Section 8(a)(1). In its exceptions, the Respondent argued that the judge erred in finding the independent 8(a)(1) violation because the complaint did not allege that the memorandum was unlawful. The Board rejected the argument, citing Pergament United Sales, 296 NLRB 333 (1989), enfd. 920 F.2d 130 (2d. Cir. 1990), which held that the Board may find and remedy an unfair labor practice not specifically alleged in the complaint "if the issue is closely connected to the subject matter of the complaint and has been fully litigated." [HTML] [PDF]

Agreeing with the judge, the Board found that the Respondent further violated Section 8(a)(1) by engaging in other conduct because of its employees' union activities, including: changing its rule to prohibit personal use of its copy machine; changing its rule to prohibit posting notices except in the break room after dating the notice and securing supervisory approval; issuing a new Interviewing Policies And Procedures Manual on May 29, 2000; and telling employees they cannot distribute union materials inside the building, but outside the Center. The Board emphasized, in finding a violation with respect to the Respondent's promulgation of new work rules, that the Respondent promulgated and implemented the rules immediately after discovering the Union's organizing efforts.

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Austin, Dec. 18-19, 2000. Adm. Law Judge Pargen Robertson issued his decision March 7, 2001.

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Fruehauf Trailer Services, Inc., a wholly owned subsidiary of Wabash National Corp. (19-CA-25715, 26262; 334 NLRB No. 50) Seattle, WA June 25, 2001. The Board held, in agreement with the administrative law judge, that no postsettlement unfair labor practices were committed and, contrary to the judge, that the one presettlement unfair labor practice found by him was encompassed within the scope of the parties' settlement agreement in Case 19-CA-25715. The judge found that the Respondent bypassed the Union and dealt directly with employees on September 18, 1998, in violation of Section 8(a)(5) of the Act. No exceptions were filed to the judge's dismissal of the unlawful withdrawal of recognition and refusal-to-bargain allegation. Citing Shell Ray Mining, 286 NLRB 466 (1987), the Board reinstated the settlement agreement and dismissed the consolidated complaint in Cases 19-CA-25715 and 26262. It expressed no view on the merits of the alleged unfair labor practices predating the settlement. See Ann's Schneider Bakery, 259 NLRB 1151, 1160 (1982). [HTML] [PDF]

On January 23, 1998, the Union filed a charge in Case 19-CA-25715, alleging that the Respondent violated Section 8(a)(1) by offering employees improved wages and benefits if they decertified the Union, and violated Section 8(a)(5) by bypassing the Union and dealing directly with employees. The charge was subsequently amended and settled by the informal settlement agreement approved by the Regional Director on October 2, 1998. Thereafter, a decertification petition was filed in Case 19-RD-3392. On December 10, 1998, the Union filed a charge in Case 19-CA-26262, alleging that the Respondent violated Section 8(a)(5) by refusing to bargain and violated Section 8(a)(1) by offering financial incentives to employees in order to encourage decertification. On March 31, 1999, the General Counsel set aside the settlement agreement and issued the consolidated complaint in Cases 19-CA-25715 and 19-CA-26262, alleging that the Respondent violated the terms of the settlement agreement, and Section 8(a)(1), by offering employees a wage increase if they decertified Machinists District Lodge 160; committed several presettlement violations of Section 8(a)(1) and (5) by promising employees benefits and dealing directly with them; and committed a postsettlement violation of Section 8(a)(5) and (1) by withdrawing recognition from the Union and refusing to bargain.

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Machinists District Lodge 160; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Seattle, June 2-3, 1999. Adm. Law Judge Steven M. Charno issued his decision June 3, 1999.

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Orange County Publications, an Unincorporated Division of Ottoway Newspaper, d/b/a The Times-Herald Record (34-CA-8304, 8517; 334 NLRB No. 48) Middletown, NY June 26, 2001. Agreeing with the administrative law judge, the Board found that, during a 1998 captive audience speech to employees, the Respondent's publisher, James Moss, threatened employees that they would receive less benefits than nonunion employees if they voted in favor of union representation in violation of Section 8(a)(1) of the Act. Contrary to the judge, Members Liebman and Walsh found that Moss' statement about a possible change in the Respondent's distribution system, also constituted an unlawful threat of job loss if employees selected Communications Workers Local 1120 to be their collective-bargaining representative. "By linking a possible change in the distribution system, including the loss of full-time positions, to unionization, and the Union's attempts to exert pressure on the Respondent, Moss implicitly threatened employees with loss of their jobs if they voted in favor or the Union," they held. Chairman Hurtgen would dismiss this 8(a)(1) allegation, finding Moss' statement "was not a threat of retaliatory action, but rather a statement of economic reality which would not be altered because of the presence or absence of a union." [HTML] [PDF]

The Board affirmed the judge's finding that the Respondent did not violate Section 8(a)(3) and (1) by restructuring its delivery operations.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Communications Workers Local 1120; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Goshen, March 1-2,1999. Adm. Law Judge Michael A. Marcionese issued his decision June 29, 1999.

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Avanté at Boca Raton, Inc. and Avanté Terrace at Boca Raton, Inc., Joint Employers (12-CA-18860, 18893; 334 NLRB No. 56) Boca Raton, FL June 27, 2001. Upholding the administrative law judge's decision, the Board found that the Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the certified Union following the affiliation between its parent organization, 1115 District Council, and the Service Employees International (SEIU). The Board agreed with the judge, for the reasons stated in his decision, that there was substantial continuity of representation following 1115 District Council's affiliation with the SEIU. It also agreed that the lack of notice to or participation by the unit employees in the affiliation process was not a basis for justifying the Respondent's refusal to bargain with the Union. [HTML] [PDF]

The Board disagreed with the judge's finding that the unit employees were denied minimal due process, noting that as nonmembers, the unit employees were not entitled to participate in the internal union affiliation process. It pointed out that the Union's policy did not allow employees to become members until after their employer had entered into a collective-bargaining agreement with the Union. That precondition for membership had not occurred regarding these unit employees and therefore they were not eligible to become members, the Board observed. Nonmembers do not have a right to participate in internal union matters such as affiliation votes. See Santa Barbara Humane Society, 302 NLRB 833, 836 (1991); Potters' Medical Center, 289 NLRB 201, 202 (1988), where the Board found, in circumstances similar to those here, that the general lack of participation by nonmembers in affiliation decisions does not justify an employer's refusal to bargain.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by 1115 District Council, SEIU; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Miami, Aug. 10-11, 1998. Adm. Law Judge Keltner W. Locke issued his decision Oct. 8, 1998.

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Dynamic Science, Inc. (5-RC-15189; 334 NLRB No. 57) Aberdeen Proving Grounds, MD June 27, 2001. The Board granted the Employer's request for review of the Regional Director's Decision and Direction of Election as it raised substantial issues warranting review in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 121 S.Ct. 1861 (2001); and affirmed the Regional Director's finding that the petitioned-for artillery test leaders are not supervisors within the meaning of Section 2(11) of the Act. In its request for review, the Employer contended that the test leaders are statutory supervisors because they use independent judgment in responsibly directing other employees. The petitioning union is Machinists District Lodge 12, Local Lodge 2424. [HTML] [PDF]

In Kentucky River, which was issued subsequent to the Regional Director's decision, the Supreme Court upheld the Board's rule that the burden of proving statutory supervisory status rests with the party asserting it. Although the Court rejected the Board's interpretation of "independent judgment" in Section 2(11)'s test for supervisory status, i.e., that registered nurses will not de deemed to have used "independent judgment" when they exercise ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards, it recognized the Board's discretion to determine, within reason, what scope or degree of "independent judgment" meets the statutory threshold.

Agreeing with the Regional Director that the Employer failed to sustain its burden of establishing that the test leaders possess statutory supervisory authority in their direction of other employees, the Board found the test leaders' role in directing employees "is extremely limited and circumscribed by detailed orders and regulations issued by the Employer and other standard operating procedures" and, thus, the degree of judgment exercised by the test leaders "falls below the threshold required to establish statutory supervisory authority." See Chevron Shipping Co., 317 NLRB 379, 381 (1995), cited with approval in Kentucky River.

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

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Doug Wilson Enterprises, Inc. (12-CA-20155, 12-RC-8357; 334 NLRB No. 51) Cape Canaveral, FL June 28, 2001. By laying off William Jay Baumgardner and Mark Oropez because they engaged in union activities, and laying off Michael Diamond and William Mutter to legitimize the pretextual reasons advanced for the layoffs, the Respondent violated Section 8(a)(3) and (1) of the Act, the Board held in agreement with the administrative law judge. Affirming the judge's recommendation, the Board sustained the Union's election objection to the unlawful termination of bargaining unit employees; set aside the election held in Case 12-RC-8357 on June 11, 1999, which resulted in 2 votes for, and 3 against Carpenters Local 1765, with one challenged ballot; and directed a second election. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Carpenters Local 1765; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cocoa on May 8, 2000. Adm. Law Judge Howard I. Grossman issued his decision Nov. 27, 2000.

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DMI Distribution of Delaware, Ohio, Inc. (8-CA-29860, et al.; 334 NLRB No. 59) Delaware, OH June 29, 2001. The Board affirmed the administrative law judge's decision, as modified, and held that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Carl Williamson on April 27, 1998 for allegedly violating company policy by failing to punch out when he left the Respondent's premises during worktime on April 24; and that the Respondent committed certain Section 8(a)(1) violations in an attempt "to nip in the bud" its employees organizing activities before an election scheduled for June 4, 1998, including promising benefits and threatening employees with plant closure. [HTML] [PDF]

The Board reversed the judge's finding that, in a December 7, 1998 meeting with the Respondent's drivers, owner Duaine Moore unlawfully promised a brand new tractor to any driver who wanted to become an owner-operator "with the obvious intention of removing these drivers from any future bargaining unit" and as "a clear tactic to undermine further the Union's efforts at his facility." The Board held "the Respondent had a business justification for raising the issue of the drivers becoming owner-operators of their own tractors with the Respondent's help and that the drivers would reasonably have understood this." Agreeing with the judge that the Respondent violated Section 8(a)(1) by giving cash bonuses to Chester Bennett and Ken Brown for extra work they performed 5 days before the scheduled election, the Board found the Respondent did not have an established past practice of giving cash bonuses for extra work because "there is no evidence that such events occurred on a continuing or regular basis." See B & D Plastics, 302 NLRB 245, fn. 2 (1991). Since owner Diana Moore gave the cash bonuses only a few days before the election and Bennett and Brown were aware that the election was scheduled for June 4, the employees would reasonably have understood that Moore gave them the bonuses to influence their votes in the election, the Board held.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charges filed by Teamsters Local 284; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Delaware, July 11-13 and Feb. 12, 1999. Adm. Law Judge Jerry M. Hermele issued his decision April 16, 1999.

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Teamsters Local 179 (USF Holland, Inc.) (13-CD-591; 334 NLRB No. 53) Joliet, IL June 26, 2001. Relying on the factors of employer preference, and economy and efficiency of operations, the Board decided that employees of USF Holland, Inc. represented by Teamsters Local 179, rather than those represented by Machinists Local 701, are entitled to perform the fueling and transporting of vehicles between the terminal and garage at the Employer's Joliet facility. Since October 1, 2000, the Employer has assigned the work to employees represented by Local 179 and it has indicated that it prefers to continue to do so. The Board found the Employer's economy of operation will be maximized by allowing employees represented by Local 179 who are already in the vicinity of the vehicles, and who can perform the work without incurring overtime, to perform the work. It rejected Local 701's argument that the work could be performed less expensively by hiring employees classified under its collective-bargaining agreement as "helpers." Citing Longshoremen ILA Local 1242 (Rail Distribution Center), 310 NLRB 1, 5, fn. 4 (1993), the Board noted that it does not consider wage differentials as a basis for awarding work. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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M&M Electric, Inc. (28-CA-16259, -2; 334 NLRB No. 45) Phoenix, AZ June 20, 2001. The Board, on the recommendation of the administration law judge, dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to call back six electricians who were selected for layoff and by instituting a new application procedure because of the Union's organizing efforts. [HTML] [PDF]

The General Counsel contended that the layoff was a "sham" designed to eliminate union members. Contrary to the General Counsel, the Respondent asserted that the layoff of six employees was motivated by lawful consideration, namely the elimination of the night shift and the resultant combining of the two shifts into 1-day shift. In concluding that the six employees were the least productive, the most expendable, or exhibited other traits or characteristics that warranted their removal, the judge said "[i]t is significant that the group of six included only three union members."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Electrical Workers IBEW Local 640; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Phoenix on May 30 and 31 and June 1 and 2, 2000. Adm. Law Judge Gerald A. Wacknov issued his decision Sept. 22, 2000.

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New Silver Palace Restaurant (2-CA-30820; 334 NLRB No. 44) New York, NY June 18, 2001. The Board adopted the administrative law judge's findings that the Respondent's alleged reasons for not hiring the 23 discriminatees were pretextual and that its refusal to hire the discriminatees was in violation of Section 8(a)(1), (3), and (5) of the Act. The Respondent refused to hire the discriminatees because it contended that they did not meet its requirement that they speak English, failed to submit applications, or had not fully complied with the requirements for submitting applications, which included completing the forms in English and listing prior employment. [HTML] [PDF]

At a postbankruptcy auction on July 24, 1997, the Respondent purchased the assets of the Silver Palace Restaurant, whose employees had been represented by 318 Restaurant Workers Union. After the auction, the Union sent the owners letters on behalf of the former Silver Palace Restaurant employees seeking employment with the Respondent. The Board agreed with the judge's finding that the Respondent deliberately prevented the Union from gaining a foothold in its restaurant by using employment applications to avoid hiring union supporters and to give the impression that its refusal to hire were lawful.

Applying FES (A Division of Thermo Power), 331 NLRB No. 20 (2000), the Board held that the Respondent was hiring at the times it refused to hire the discriminatees, the discriminatees had experience or training relevant to the announced or generally known requirements for the positions, and antiunion animus was a motivating factor in the decision not to hire them. Chairman Hurtgen agreed as to the 8(a)(3) violations but did not agree that these violations operated as a forfeiture of a successor employer's right to set new initial terms and conditions of employment. See his dissenting opinion in Pacific Custom Materials, 327 NLRB 75 (1998).

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by 318 Restaurant Workers Union; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at New York, NY on various dates between Aug. 5, 1998 and Jan. 28, 1999. Adm. Law Judge Howard Edelman issued his decision Aug. 30, 1999.

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Regal Cinemas, Inc. (5-CA-27454, et al.; 334 NLRB No. 41) Knoxville, TN June 20, 2001. Agreeing with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Union about decisions to lay off unit projectionists and transfer work to nonunit employees and implementing the decisions, Members Liebman and Truesdale emphasized his finding that the reclassification or transfer of bargaining unit work to managers or supervisors is a mandatory subject of bargaining where, as here, it has an impact on unit work. They upheld the judge's conclusion that the Union did not waive bargaining as to the Respondent's decisions, finding they were not based on technological development and immune from bargaining because of the management-rights clause, as the Respondent argued. Members Liebman and Truesdale also rejected the Respondent's contention that the judge's requirement that the Respondent reestablish the projectionist position is overly burdensome. The Respondent will be permitted to present new evidence (i.e., facts occurring after the close of the hearing) on the restoration issue at the compliance stage of this proceeding. [HTML] [PDF]

In a reversal of the judge, Members Liebman and Truesdale found that the Respondent did not violate Section 8(a)(5) and (1) by conditioning severance pay for employees represented by Stage Employees IATSE Local 125 on their willingness to sign a release because the evidence failed to establish that the Respondent insisted to impasse in bargaining that severance pay for the employees was conditioned on their agreement to sign a general release.

Chairman Hurtgen, concurring in part, agreed that the Respondent unlawfully failed to bargain with the Union, but he would analyze this case under First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), not under Fibreboard v. NLRB, 379 U.S. 203 (1964), and Torrington Industries, 307 NLRB 809 (1992), the cases applied by the judge. Agreeing that the Union retained its bargaining rights with respect to the Respondent's decision to lay off projectionists and reassign their work to nonunit personnel, he wrote:

To the extent that this conclusion is based on an analysis of the management-rights clause relied on by the Respondent, however, I would not, as the judge did, apply the 'clear and unmistakable' standard. I would, however, find that under a 'contract coverage' analysis, the Respondent's conduct was not privileged. See NLRB v. U.S. Postal Service, 8 F.3d 832 (D.C. Cir. 1993); Central Illinois Public Service Co., 326 NLRB 928, 935 fn. 23 (1998) (concurring in the finding that the respondent unlawfully discontinued employee benefits during a lockout because, under a 'contract coverage' analysis, rather than a 'waiver' analysis, the contract did not privilege the respondent's conduct).

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Stage Employees IATSE Locals 370, 125, and 364; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Richmond, VA, Nov. 19-20, 1998, at Fort Wayne, IN, Dec. 14-15, 1998, and at Cleveland, OH, Jan. 19-20, 1999. Adm. Law Judge Richard H. Beddow Jr. issued his decision April 12, 1999.

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The Park Associates, Inc. d/b/a Hill Park Health Care Center (3-CA-20898-3, et al.; 334 NLRB No. 55) Syracuse, NY June 20, 2001. Members Liebman and Truesdale agreed with the administrative law judge that the Respondent, a successor to Hill Haven Nursing Home under Burns International Security Services, 406 U.S. 272 (1972), violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Service Employees Local 200A. Relying on the "successor bar" rule adopted by the Board in St. Elizabeth Manor, Inc., 329 NLRB No. 36 (1999), which issued after the judge's decision in this case, the majority affirmed his finding that the Respondent unlawfully relied on a decertification petition when it refused to recognize and bargain with the Union on September 14, 1997. The majority, citing Caterair International, 322 NLRB 64 (1996), held that an affirmative bargaining order is warranted as a remedy for the Respondent's unlawful withdrawal of recognition. [HTML] [PDF]

The majority also affirmed the judge's findings that the Respondent violated Section 8(a)(1) by posting a wage and benefits package that on its face limited eligibility to nonunion employees and by distributing a pamphlet notifying employees of a "1-800 hotline" for purpose of raising employment-related concerns. The majority wrote: "While the Act does not prohibit an employer from making statements of existing benefits to his employees before a representation election, it does prohibit promises, implicit or explicit, to induce employees to vote to be unrepresented. Contrary to our dissenting colleague, we find that the latter is involved here." With regard to the "1-800 hotline," the majority said the distribution of the pamphlet during the critical period "signaled to employees that the Union might not be necessary given the Respondent's willingness to listen to and give consideration to their employment-related concerns. Contrary to our dissenting colleague, we start from the premise that the pamphlet was distributed during the critical period, not that the hotline was instituted during the critical period."

Chairman Hurtgen, dissenting in part, would dismiss allegations that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union on September 4. For the reasons stated in the dissenting opinion in St. Elizabeth Manor, he disagrees with the holding in that case and believes his colleagues' conclusion that the Respondent lawfully could not have refused to bargain with the Union because a reasonable period had not passed, even though such refusal was based on the untainted employee petition, "demonstrates the enormity of the majority's error in St. Elizabeth Manor." Chairman Hurtgen would dismiss allegations that the Respondent violated Section 8(a)(1) by posting a document entitled "Benefits for Non-Union Employees." He found the dissemination of this information about extant benefits to unrepresented employees is protected under Section 8(c) and the limitation of the benefits to nonunion employees does not establish illegality. Finding that there was neither an implied or express promise to remedy employee grievances, Chairman Hurtgen would also dismiss allegations that the Respondent violated Section 8(a)(1) by publicizing its existing "1-800 hotline" whereby employees could obtain answers to employment-related questions.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Service Employees Local 200A; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Syracuse, June 9-10, 1998. Adm. Law Judge Karl H. Buschmann issued his decision Dec. 10, 1998.

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Lutheran Home at Moorestown (4-CA-30047; 334 NLRB No. 47) Moorestown, NJ June 22, 2001. Finding that the Respondent raised no issue properly litigable in this unfair labor practice proceeding, the Board granted the Acting General Counsel's motion for summary judgment, and found that the Respondent illegally refused to bargain with the Communications Workers (CWA) following its certification as exclusive collective-bargaining representative of the Respondent's Registered Nurses (RNs) and Licensed Practical Nurses (LPNs). The Board issued cease-and-desist and bargaining orders. The Respondent admitted its refusal to bargain, but asserted the case should be held in abeyance pending the Supreme Court's decision in Kentucky River Community Care v. NLRB, 193 F.3d 444 (6th Cir. 1999), cert. granted 121 S.Ct. 27 (2000) because the supervisory status of RNs and LPNs is common to both cases. The Respondent also contended that the Board should deny the motion because the complaint issued at a time when there was no properly appointed General Counsel. The Acting General Counsel was appointed pursuant to 5 U.S.C. Sec. 3345(a), as amended by the Federal Vacancies Reform Act of 1998, an "alternative procedure" for temporarily occupying an office. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by CWA; complaint alleged violation of Section 8(a)(1) and (5). Acting General Counsel filed motion for summary judgment March 5, 2001.

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J.B. Hunt Transport, Inc. (4-CA-29035; 334 NLRB No. 54) Philadelphia, PA June 22, 2001. By direction of the Board, the Associate Executive Secretary granted the Respondent's motion to set aside the Board's Decision and Order issued in this case on May 23, 2001, and vacated the decision reported at 334 NLRB No. 19 for all purposes, including precedential effect. See Caterpillar, Inc., 332 NLRB No. 101 (2000). The Board had considered the Respondent's timely filed exceptions and the General Counsel's answering brief timely filed on May 16, 2001 when the decision issued only 7 days following the filing of the answering brief. Section 102.46(h) of the Board's Rules and Regulations, however, provides all parties the right to file a reply brief within 14 days from the due date for answering briefs. In its motion, the Respondent requested that the decision be set aside pending submission and consideration of its reply brief. The decision having prematurely issued, the motion was granted and the parties were afforded 14 days from the date of the supplemental order to file a reply brief to the General Counsel's answering brief. [HTML] [PDF]

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Staten Island University Hospital (29-CA-23193; 334 NLRB No. 40) Staten Island, NY June 13, 2001. Following the issuance of the administrative law judge's decision, the Board approved New York State Nurses Association's request to withdraw this case and dismissed the complaint. In his decision, the judge found that the Respondent did not violate the Act when it refused to provide the Union with a copy of a contract that the Respondent negotiated with another employer to provide certain rehabilitative services. [HTML] [PDF]

Subsequent to the judge's decision, in an arbitration proceeding which involved the same set of facts as those presented to the judge, the Respondent provided the Charging Party with a copy of the requested contract and in return, the Charging Party agreed to request withdrawal of this case.

Chairman Hurtgen also approved the withdrawal request. However, he noted that "informational" disputes, such as the instant one, are better left to the processes of arbitration than to litigation before the NLRB. In this case, it appeared that the arbitrator was presented with essentially the same set of facts as had been presented to the judge. Thus, the information was produced in the normal course of arbitration, and there was no need for the NLRB litigation. Chairman Hurtgen believes that leaving this matter to arbitral processes would have saved public resources and would have been consistent with the central role that arbitration plays in labor relations in this country. Members Liebman and Truesdale did not address the issue of the proper forum for resolving "informational" disputes as that issue was not specifically raised by the withdrawal request.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by New York State Nurses Assn.; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn, NY on Apr. 16, 2000. Adm. Law Judge Raymond P. Green issued his decision June 22, 2000.

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B & C Contracting Co. (8-CA-29634, 29914; 334 NLRB No. 25) Kissimmee, FL June 6, 2001. Affirming the administrative law judge in this "salting" case, the Board concluded the Respondent did not violate Section 8(a)(3) and (1) of the Act by failing to accept applications from, and consider for employment, a group of 11 union applicants on January 7, 1998, and seven more union members on the next day. The applicants filled out and submitted applications to supervisor Dave Whitson at the Respondent's onsite trailer at its Leipsic, Ohio project. The judge had found Whitson did not hire the applicants because they were carpenters, millwrights, and they were unwilling to travel. [HTML] [PDF]

The Board further adopted the judge's finding that the Respondent did not violate the Act by failing to accept applications from another group of applicants whose resumes the Union faxed on February 2 and 3, 1998, to the Leipsic site. The judge credited Whitson's testimony that he never physically received the faxed resumes even though the faxed applications had been received by the Respondent's fax machine. The Board declined to adopt the "rigid rule" proposed by the General Counsel, namely that "knowledge of a fax transmission received by an employer's fax machine during regular business hours should be imputed to the employer, regardless of whether the person to whom the fax was addressed actually received the fax." It distinguished the facts in this case from Clow Water Systems Co., 317 NLRB 126 (1995), enf. denied 92 F.3d 441 (6th Cir. 1996).

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Carpenters Northwest Ohio District Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Toledo, OH Nov. 2 - 4, 1998. Adm. Law Judge Earl E. Shamwell Jr. issued his decision June 4, 1999.

* * *

Desert Pines Gulf Club (28-CA-16347; 334 NLRB No. 36) Las Vegas, NV June 7, 2001. The Board adopted the administrative law judge's finding that the Respondent did not unlawfully discharge Sergio De La Cruz for unsatisfactory job performance. The General Counsel had claimed the discharge was motivated by anti-union considerations related to a union organizing campaign. There were no exceptions to the judge's conclusions that the Respondent violated Sec. 8(a)(3) and (1) of the Act by issuing warnings to employees Ricardo Madrigal, Pedro Herrera, Roberto Padilla, and De La Cruz; Sec. 8(a)(1) by impermissibly restricting the right of employees to solicit for the Union; and Sec. 8(a)(1) by creating the impression of surveillance of employees' union activities. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Laborers Local 872; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Las Vegas, Sept. 26, 2000. Adm. Law Judge Thomas Michael Patton issued his decision Feb. 15, 2001.

* * *

Outokumpu Copper Franklin, Inc. (26-RC-8236; 334 NLRB No. 39) Franklin, KY June 6, 2001. The Board reversed the Regional Director's finding that a petitioned-for-unit of production and maintenance employees - - excluding temporary employees--was appropriate. The Board concluded that "the temporary employees supplied by the staffing agencies share such a strong community of interest with the employees in the unit found appropriate that their inclusion is required." [HTML] [PDF]

In his analysis, governed by M.B. Sturgis, 331 NLRB No. 173 (2000), the Regional Director acknowledged that the regular and temporary workers share common working conditions, but concluded that the dissimilar terms and conditions support excluding the temporaries from the unit. In this regard, he relied on the fact that the suppliers hire the temporaries and pay their workers' compensation, the temporaries receive lower hourly wage rates, they are ineligible for certain employer benefits and seniority, and they have a different attendance policy. The Board, however, concluded:

We find that these dissimilar terms and conditions of employment are substantially outweighed by the many and common terms and conditions of employment shared by the regular and temporary employees. The temporaries work side-by-side with the regular production employees. Temporaries and regular employees perform the same work functions and are supervised by the same supervisors. The Employer has four shifts, and the temporaries, like the regular employees, are assigned to all four. The regular and temporary employees work in the same plant areas and are part of the same production operations.

Finally, the Board held the Regional Director did not err in finding it unnecessary to address the joint employer issue because the Employer is a statutory employer of the temporaries and the Union named only the Employer in the petition.

(Members Liebman, Truesdale, and Walsh participated.)

* * *

Globe Aviation Services (1-RC-21189; 334 NLRB No. 34) Boston, MA June 8, 2001. In deciding the matter of jurisdiction, the Board held that Globe Aviation Services (Globe) is engaged in interstate common carriage so as to bring it within the jurisdiction of the National Mediation Board (NMB) under Section 201 of Title II of the Railway Labor Act (RLA). The Board affirmed the Regional Director's dismissal of the petition filed by Service Employees Local 254, relying on the NMB's opinion that the work in question is traditionally done by carriers and that the carriers exercise "substantial control over Globe and its employees," and in its view, Globe is a carrier subject to the RLA. [HTML] [PDF]

Local 254 sought to represent all cleaners employed by Globe at Logan International Airport in Boston, MA. Globe asserted that it is subject to the RLA because its employees perform traditional airline work, that the work is controlled by air carriers, and that the Board lacks jurisdiction under Section 2(2) of the National Labor Relations Act.

Concurring, Member Liebman joined her colleagues in deferring to the opinion of the NMB that Globe and its employees are subject to the RLA. However, she set forth two queries regarding the NMB's opinion in the instant matter: a) Whether cleaning airline terminals is work that is traditionally performed by employees in the airline industry and b) Whether the air carriers exercise substantial control over the work performed by Globe's employees.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

* * *

Paramount Parks, Inc. d/b/a Star Trek: The Experience (28-CA-15464, et al.; 334 NLRB No. 29) Las Vegas, NV June 6, 2001. The Board held, in agreement with the administrative law judge, that during the course of the Union's organizational campaign, the Respondent committed various violations of Section 8(a)(1), (3), (4), and (5) of the Act. The violations included, among others, disparaging employees for engaging in concerted activities, inviting employees to quit because they engaged in union and protected activities, promising employees wage increases and improved benefits if they rejected the Teamsters Local 995, refusing to allow employee Tania Lonkouski to rescind her resignation on September 30, 1998, rescinding accommodation for Tracy Jordan's reporting time, and suspending and discharging Jordan for filing an unfair labor practice charge with the Board. Citing Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000) (decided following the close of the hearing), the Board, in agreement with the judge, also found that the Respondent violated the Act by denying an employee's request for a witness during an investigatory interview. [HTML] [PDF]

The Board reversed the judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) when it confiscated a cake displaying a prounion message. It found that the Respondent's past practice was to permit employees to bring cakes to work to share with their colleagues and by treating this particular cake differently because it displayed a prounion message, the Respondent acted in a disparate manner, violating Section 8(a)(1).

On January 11, 2001, the Board granted the General Counsel's motion to sever the representation case and two of the unfair labor practice cases from the instant proceeding and, remanded the cases to the Regional Director for approval of a settlement agreement reached by the Respondent and Teamsters Local 995.

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Culinary Workers Local 226, Hotel & Restaurant Employees Local 165, and Cynthia Veto, Roger Guinn, and John Stepp, individuals; complaint alleged violations of Section 8(a)(1), (3), (4), and (5). Hearing at Las Vegas on various dates between Feb. 1 and Mar. 16, 2000. Adm. Law Judge James L. Rose issued his decision Aug. 28, 2000.

* * *

Wolgast Corporation (7-CA-42474; 334 NLRB No. 31) Saginaw, MI June 5, 2001. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by interfering with a Carpenters Local 706 official's access to the jobsite pursuant to the access provision in the Union's collective-bargaining agreement with Acoustical Arts, one of ten subcontractors working for the Respondent on the Cinema Hollywood jobsite in Birch Run, Michigan. The contract between Acoustical Arts and Carpenters Local 706 contains a union access clause stating that

[b]usiness representatives shall have access to all jobs at all times where possible. A Representative of the Michigan Regional Council of Carpenters shall have the right to visit the job during working hours to interview the Employer, Steward, or men at work but shall not hinder the progress of work. [HTML] [PDF]

In agreement with the judge, the Board found that the holding in CDK Contracting Co., 308 NLRB 1117 (1992), is controlling in this case. It found no merit to the Respondent's contention that the Union was not entitled to access because there were no Acoustical Arts carpenter employees on the jobsite on October 14, 1999. The access provision of the contract does not restrict the Union's visitation right to days when employees it represents are present at the jobsite. In this matter, the purpose of Union Official Leon Turnwald's visit was to investigate a safety complaint lodged by a union member who worked on the jobsite the day before.

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Carpenters Local 706; complaint alleged violation of Section 8(a)(1). Hearing at Saginaw, March 30 and 31 and June 13, 2000. Adm. Law Judge Martin J. Linsky issued his decision Oct. 25, 2000.

* * *

In Home Health, Inc. (5-CA-29110; 334 NLRB No. 37) Virginia Beach and Suffolk, VA June 8, 2001. The Board affirmed the administrative law judge's finding that by announcing and implementing a wage increase for its employees subsequent to receiving a petition for an NLRB-conducted election and by threatening its employees with loss of jobs if the Union won, the Respondent violated Section 8(a)(1) of the Act. The judge held that the wage increase was linked to the employees' union activities and the Respondent's desire to remain nonunion. [HTML] [PDF]

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charge filed by Longshoremen's International; complaint alleged violation of Section 8(a)(1). Hearing at Virginia Beach on Feb. 22, 2001. Adm. Law Judge Benjamin Schlesinger issued his decision April 2, 2001.

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Kanawha Stone Company, Inc. (9-CA-35738; 334 NLRB No. 28) Nitro, WV June 6, 2001. A Board majority of Members Liebman and Truesdale held that they need not rely on the administrative law judge's finding of animus in adopting the judge's finding that the Respondent violated Section 8(a)(1) by granting employees the benefit of show-up pay during the organizing campaign. American Freightways Co., 124 NLRB 146, 147 (1959). They said "[a]bsent a legitimate business reason, it is sufficient to show that the benefit was granted during an organizing campaign." Mariposa Press, 273 NLRB 528 (1984). [HTML] [PDF]

Members Liebman and Truesdale adopted the judge's dismissal of the complaint allegations that Respondent violated Section 8(a)(3) and (1) by refusing to consider and hire union affiliated applicants because they were union members and that the Respondent's hiring policy is inherently destructive of employee rights. Citing FES (A Division of Thermo Power), 331 NLRB No. 20 (2000), the majority determined that the General Counsel failed to meet his threshold burden of showing that the Respondent was hiring or had concrete plans to hire when the applications were submitted. The Respondent claimed that it uses three criteria when hiring for a job: (1) employees on temporary lay off, (2) former employees, or (3) referrals from existing employees. The Respondent contended persons who do not fall into one of these three categories are not considered for hire and that even absent their union activity, none of the applicants met any of its three hiring criteria.

The majority also held that the Respondent unlawfully discharged employee Philip Selman in violation of Section 8(a)(3) and adopted the judge's rationale, including his reliance, in finding animus, on conduct that did not independently violate Section 8(a)(1). Chairman Hurtgen, concurring and dissenting in part, determined that Selman was a supervisor from September through mid-November 1997 and, therefore, the Respondent did not violate Section 8(a)(1) by allegedly interrogating him on November 7 and 10, 1997 because his union activity during that period was not protected. He agreed that Selman was unlawfully discharged but relied on the timing of his January 20, 1998 layoff, i.e. one day after management witnessed his handbilling on the jobsite. Chairman Hurtgen also relied on the fact that the Respondent acted contrary to its established practice when it subsequently informed Selman that his layoff was permanent.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Operating Engineers Local 132; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Charleston, WV on Feb. 2-5, 1999. Adm. Law Judge Karl H. Buschmann issued his decision Sept. 23, 1999.

* * *

Stage Employees St. Louis Local 6 (Kiel Center Partners, L.P. d/b/a Savvis Center) (14-CD-1011; 334 NLRB No. 1) St. Louis, MO June 6, 2001. The Board decided that Kiel Center Partners' employees represented by Stage Employees Local 6 rather than those represented by Electrical Workers (IBEW) Local 1 are entitled to perform the operation of the moving theatrical lights during events at Savvis Center, 1401 Clark Avenue, St. Louis, MO. In determining its award, the Board relied on the factors of employer preference and assignment, employer past practice, area practice, relative skills and training, and economy and efficiency of operations. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

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Beta Steel Corp. (25-CA-25139; 334 NLRB No. 32) Portgage, IN June 6, 2001. The Board found that the Respondent's general denials to the allegations in paragraphs 2, 6 and the summary paragraph of the compliance specification are inadequate under the specificity requirements of Section 102.56(b) and (c) of the Board's Rules and Regulations; and granted the General Counsel's motion for summary judgment as to paragraph 2 ( which pertains to the backpay period) and paragraph 6 and the summary paragraph (which pertain to the amount of backpay due the Charging Party). The proceeding was remanded to the Regional Director to arrange a hearing limited to interim earnings and expenses, vacation benefits, medical benefits, 401(k) benefits, and the Respondent's affirmative defenses. In a prior decision, the Board had ordered the Respondent to make whole Dennis Holland for any loss of earnings and other benefits as a result of his unlawful discharge. 326 NLRB 1267 (1998). On March 14, 2000, the Seventh Circuit enforced the Board's order. Beta Steel Corp. v. NLRB, 210 F.3d 374 (7th Cir. 2000). [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

General Counsel filed motion for partial summary judgment Nov. 20, 2000.

* * *

Hampton Lumber Mills-Washington, Inc. (19-CA-26789; 334 NLRB No. 30) Randle, WA May 31, 2001. The Board agreed with the administrative law judge's finding that the Respondent was a successor employer and violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as of November 30, 1999. As a remedy, the Board found that an affirmative bargaining order was warranted. [HTML] [PDF]

The Respondent had argued that it was not required to bargain with the Union in light of a December 8, 1999 petition signed by 90 of the 116 unit employees that they did not want to be represented by the Union. On December 9, the Respondent filed an RM petition with the Board requesting an election, and on December 16 the Union filed the unfair labor practice charge that gave rise to this case and blocked the RM petition.

The Board majority of Members Liebman and Walsh, citing Lee Lumber, 332 NLRB 175 (1996), 117 F.3d 1454 (D.C. Cir. 1997), held "the Respondent's unlawful November 30 refusal to recognize the Union presumptively tainted the December 8 employee petition." In finding the Respondent's refusal to recognize the Union -- on the basis of the December 8 petition -- violated Section 8(a)(5), the Board also cited the rationale of St. Elizabeth Manor, Inc., 329 NLRB No. 36 (1999), stating: "[O]nce the Respondent's obligation to recognize and bargain with the Union attached on November 30, the Union was entitled to a reasonable period of bargaining without challenge to its majority status."

In a concurring opinion, Member Truesdale said he would rely only on the rationale of St. Elizabeth's Manor in finding the violation.

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Lumber and Sawmill Workers Local 2767 [UBC]; complaint alleged violation of Section 8(a)(5) and (1). Hearing in Seattle, June 13, 2000. Adm. Law Judge Clifford H. Anderson issued his decision August 3, 2000.

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Huck Store Fixtures Co. (14-CA-2448; 334 NLRB No. 20) Quincy, IL May 29, 2001. The Board agreed with the administrative law judge that the Respondent's decision in late February 1997 to reduce its work force by 20 percent, and its resulting layoffs and discharges of 33 employees in early March, were motivated by the union organizing activities of its employees and that the layoffs and discharges violated Section 8(a)(3) and (1) of the Act. The Board further adopted the judge's finding that the Respondent's granting of wage increases violated Section 8(a)(3) and (1). Employees' dissatisfaction with wages was a principal issue in the union organizing effort. However, the Board overruled the judge's failure to find that the Respondent's adoption of a new attendance policy and its preparation of employee evaluations in late February and early March independently violated the Act. The Respondent used the evaluations which identified subjective criteria, such as "attitude," for layoff or discharge, the Board held. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Carpenters; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Quincy, June 17 - 20 and July 7 - 8, 1997. Adm. Law Judge Karl H. Buschmann issued his decision March 19, 1998.

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Valeo Sylvania, L.L.C. (25-CA-26769-2, -3; 334 NLRB No. 22) Seymour, IN May 29, 2001. Affirming the administrative law judge, the Board found the Respondent had engaged in a number of unfair labor practices during the Union's organizing campaign, including the suspension and discharge on Sunday, Sept. 19, 1999, of Ronald Roy, an employee active in the campaign, for distributing union literature. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Indianapolis, May 11 - 12, 2000. Adm. Law Judge C. Richard Miserendino issued his decision Jan. 31, 2001.

* * *

Armored Transport, Inc. (31-CA-23504, et al.; 334 NLRB No. 24) Los Angeles, CA May 29, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Currency and Security Handlers Association (CASHA) and later Plant Guard Workers Local 100, the bargaining agent designated by five independent labor organizations representing unit employees at five California facilities. The independent unions designated CASHA as its bargaining agent in May 1998; CASHA subsequently affiliated with Local 100. The Respondent unlawfully dealt directly with some bargaining unit employees, bypassing Local 100. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Plant Guards Local 100; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, Aug. 23 - 25, 1999. Adm. Law Judge Clifford H. Anderson issued his decision March 7, 2000.

* * *

Norman King Electric (25-CA-25894-1, -2; 334 NLRB No. 12) Owensboro, KY May 30, 2001. Affirming the administrative law judge in this "salting" case pursuant to FES, 331 NLRB No. 20 (2000), the Board concluded the Respondent had unlawfully refused to consider for employment and refused to hire four job applicants because of their union and concerted activities. The Respondent also violated the Act by maintaining a "no applications accepted" policy for the purpose of discouraging union activities. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Electrical Workers Local 1701 (IBEW); complaint alleged violation of Section 8(a)(1) and (3). Hearing at Owensboro, May 22, 2000. Adm. Law Judge Paul Bogas issued his decision Aug. 30, 2000.

* * *

C. Factotum, Inc. (7-CA-42352(1), (2); 334 NLRB No. 23) Detroit, MI May 30, 2001. The Board adopted the administrative law judge's recommended dismissal of the complaint alleging that the Respondent violated Section 8(a)(1) and (3) of the Act by threatening employees with loss of employment if they did not stop complaining about wages and benefits; by threatening employees with loss of employment if they questioned the Respondent or complained to the media about their concerns regarding wages and benefits; by orally promulgating an overly broad no-talking rule restricting employees from discussing the Union, or their wages and benefits, while allowing them to discuss other subjects; by enforcing the oral no-talking rule; and by discharging Charging Parties David Kulczycki and Ronald Carter. [HTML] [PDF]

Member Liebman adopted the judge's dismissal of the allegations of Section 8(a)(1) and (3) violations by the discharge of employee Kulczycki but relied solely on the credited evidence that Kulczycki was insubordinate, confrontational, and abusive to Supervisor Larry Moss in front of other employees. She did not pass on the judge's finding that the General Counsel failed in carrying his initial evidentiary burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by David Kulczycki and Ronald Carter, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, April 4, 2000. Adm. Law Judge C. Richard Miserendino issued his decision Sept. 20, 2000.

* * *

Flambeau Airmold Corp. (11-CA-17172; 334 NLRB No. 16) Weldon, NC May 30, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by dealing directly with unit employees regarding their hours and working conditions; by making numerous unilateral changes in employees' terms and conditions of employment; by discharging, suspending, or warning employees pursuant to its enforcement of the unlawful unilaterally changed rules or processes; and by failing to notify and bargain with the Union regarding the effect on employees of its institution of a continuous shift operation. Contrary to the judge, the Board held that the Respondent violated Section 8(a)(5) by unilaterally changing the notice requirements for employees' approval of sick leave and vacation leave. [HTML] [PDF]

While agreeing with the judge's finding that the Respondent's discharge of employee Thomas Ellis was unlawful, the Board clarified the judge's rationale. Applying Great Western Produce, 299 NLRB 1004, 1005 (1990), it held that the new work requirement that the Respondent imposed on its machine operators was a factor in Ellis' discharge - not, as Respondent argued, for "allow[ing his] machine to be shut down during shift change" and/or for failing to restart his machine in a timely manner.

(Chairman Hurtgen Members Liebman and Truesdale participated.)

Charge filed by Needletrades Employees; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Jackson, Dec. 15-18, 1997. Adm. Law Judge George Carson II issued his decision March 23, 1998.

* * *

Snyder's of Hanover, Inc. (5-CA-28033; 334 NLRB No. 21) Hanover, PA May 30, 2001. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by: (1) prohibiting union representatives from distributing prounion literature in the public right-of-way adjacent to the Respondent's facility; (2) attempting to remove the union representatives from the public right-of-way; and (3) engaging in surveillance of its employees receiving union literature from union organizers. [HTML] [PDF]

The Respondent argued that under Pennsylvania law "an owner whose property abuts a public street or road owns to the center of the road . . . subject only to a public easement of passage, or right-of-way, for transit only." It contended under State law a property owner may "preclude activities upon a right-of-way that exceed the intended purpose of the right-of-way" and that as property owner it had the right to prevent the Union's impermissible use of the public easement. The Respondent maintained that the Union's leafleting was not consistent with the purpose of the right-of-way for two reasons: (1) "the leafleting was purely for a private benefit (to garner interest in the Union and gain new members), not a public benefit"; and (2) "the actions of the leafleters caused substantial interference in ingress and egress from [the Respondent's] property."

Applying Indio Grocery Outlet, 323 NLRB 1138, 1141 (1997), the Board asserted that the Respondent must show that it had a property interest in the area where the handbilling occurred (in this case a public right-of-way), and that the handbilling was outside the scope of the public easement, such that the Respondent was entitled to exercise its property interest and expel the handbillers. Respondent has not met its threshold burden under Indio Grocery, the Board stated, "of establishing that it had, at the time it attempted to expel the union representatives, an interest in the property which entitled it to exclude the handbillers from the property."

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Food & Commercial Workers Local 1776; complaint alleged violation of Section 8(a)(1). Hearing at Hanover, October 26, 1999. Adm. Law Judge Leonard M. Wagman issued his decision Aug. 4, 2000.

* * *

Butera Finer Foods (13-RD-2301; 334 NLRB No. 11) Elgin, IL May 21, 2001. Overturning the hearing officer's report, the Board majority of Chairman Hurtgen and Member Truesdale ruled that service by a nonemployee business agent of an incumbent union as an observer in a decertification (RD) election was objectionable conduct warranting setting aside the election. The majority agreed with the Employer's contention that even though the business agent had engaged in no misconduct and his presence as an observer had not prejudiced the other parties, that an RD election is significantly different from a representation (RC) case because it involves the participation of an incumbent union and therefore warrants a different result. The majority stated: [HTML] [PDF]

After careful consideration, we conclude that the neutrality of the election process in a decertification context is best for fostered by a bright-line rule prohibiting incumbent labor organizations from using their nonemployee agents as election observers. A key factor in our holding is that in a decertification election employees have accumulated experience with their union's operations and can be expected to view both it and the employer as established collective-bargaining forces. As a result, employees may be unduly influenced by the actual physical presence of nonemployee agents of the incumbent union at the polling site.

In dissent, Member Walsh maintained the majority had erred in promulgating "an unjustified and overbroad per se rule," pointing out that there was no evidence of any misconduct by the union agent and that his mere presence as an observer, without more, did not warrant setting aside the election.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

* * *

3D Enterprises Contracting Corp. (6-CA-29051; 334 NLRB No. 10) Weston, WV May 23, 2001. The Board remanded to the administrative law judge this salting case pursuant to FES, 331 NLRB No. 20, after affirming his finding that the Respondent unlawfully refused to hire union laborer applicants Ted Mick and Jerry Elder through manipulation of its "Not Taking Applications" sign, to resolve the issue of whether they were refused hire for any openings that occurred prior to the unfair labor practice hearing. On a separate point, Chairman Hurtgen dissenting from the view of Members Liebman and Truesdale, contended the Board should require the General Counsel to establish at compliance how long union "salts" Steven Montoney and Donald Huff would have worked for the Respondent at its Weston jobsite, or at other sites, had the Respondent not unlawfully denied them reinstatement on June 5, 1997. The majority disagreed for the reasons set forth in Ferguson Electric Co., 330 NLRB No. 75 (2000). [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Construction Trades Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Clarksburg, April 28 - May 1, 1998. Adm. Law Judge David L. Evans issued his decision October 16, 1998.

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Mercy General Hospital (20-RC-17563, 17564; 334 NLRB No. 13) Rancho Cordova, CA May 24, 2001. Contrary to the hearing officer, the Board concluded that two elections for a service unit and technical unit at five hospitals of the Respondent, which the Union lost, should be set aside due to objectionable conduct by six Respondent agents. Accordingly, the Board directed second elections be held. The tallies of ballots showed 598 for, 701 against the Union, 89 challenges; and 193 for, 305 against, with 25 challenges. The objectionable conduct, which the hearing officer did not think rose to the level of warranting second elections, included threatening employees with loss of benefits; surveillance with a security camera during the critical period; interrogation of an employee concerning his union activities; and restrictions by the Employer on union activities. Among other factors, the Board was persuaded by the significant number of instances of objectionable conduct and the potentially large number of employees directly affected by the objectionable. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

* * *

Met West Agribusiness, Inc. (32-CA-16313, et al.; 334 NLRB No. 14) Del Ray, CA May 23, 2001. The Board majority of Members Liebman and Truesdale agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by telling an employee that a previously promised wage increase could not be granted because the Union had filed a petition for an election. Dissenting Chairman Hurtgen would have reversed the judge since in his view, "the Respondent correctly explained that it could not grant the benefit because of the petition." [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Food & Commercial Workers Local 45D; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Fresno, March 24 - 25, 1998. Adm. Law Judge Jay R. Pollack issued his decision July 7, 1998.

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The Hays Corporation (10-CA-30759, et al.; 334 NLRB No. 4) Decatur, AL May 22, 2001. The administrative law judge in his bench decision found, under the framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981) cert. denied 445 U.S. 989 (1982), and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Jeff Wesley and Billy Ray Spencley because of their union and protected concerted activity. It also agreed with the judge that the Respondent violated Section 8(a)(1) by threatening Wesley with discharge at a January 8, 1998 safety meeting; by threatening Spencley with discharge on or about January 17, 1998; by creating the impression of surveillance; by telling employees that it would be futile to select a bargaining representative; by telling employees that discussing the Union would violate a company rule; and by telling employees at a January 12, 1998 safety meeting that the company was nonunion and didn't want "to hear any Union bulls---" on the job. The judge's finding that the Respondent violated Section 8(a)(3) by issuing a verbal warning and a first written warning to Spencley on January 16, 1998, and by issuing a second written warning to Spencley on January 20, 1998 was also affirmed by the Board. [HTML] [PDF]

The judge rejected the Respondent's assertion that Wesley and Spencley were discharged because of their poor attendance and work records and their failure to adhere to company policies, and not because of their protected or union activities.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Jeff Wesley and Billy Ray Spencley, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Birmingham, AL, June 8, 1998. Keltner W. Locke issued his decision July 22, 1998.

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Kasa Associates d/b/a Oak Tree Mazda (32-CA-16835; 334 NLRB No. 17) San Jose, CA May 23, 2001. Affirming the administrative law judge's recommendation, the Board dismissed the complaint allegations that the Respondent violated Section 8(a)(1), (3), and (5) of the Act by refusing to hire Gilbert "Wayne" Daugherty and Kevin Ferguson. Contrary to the General Counsel's contention that Daugherty and Ferguson were not hired because of their activities on behalf of Machinists Local 1101 and because each had served as a union steward in the past, the judge found that they were not considered for hire because the Respondent desired all-around mechanics and not specialists (Ferguson only wanted to do "driveability" work and Daugherty did not want to do heavy-duty work). There was no evidence of union animus, the judge said. [HTML] [PDF]

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charge filed by Machinists Local 1101; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing on Dec. 2, 1998 and Jan. 7, 1999 in Oakland and on Aug. 10, 1999 in Birmingham, AL. Adm. Law Judge Jay R. Pollack issued his decision Sept. 28, 1999.

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Technology Service Solutions (27-CA-13971, 13971-3; 334 NLRB No. 18) Englewood, CO May 24, 2001. The Board granted in part and denied in part, the General Counsel's and Electrical Workers Local 111's motions for reconsideration of the underlying Supplemental Decision and Order, 332 NLRB No. 100 (2000). The Board modified its order to require that the Respondent mail a copy of the notice to employees to all CSRs (customer service representatives) in the south-central region and to post the notice at all its parts locations in the south-central region. It denied the General Counsel's request that the notices be sent to employees via their personal terminals, finding that the mailing of the notices to the CSRs, coupled with posting them at the Respondent's parts locations, was sufficient. [HTML] [PDF]

In the decision, the Board ordered the Respondent to post a notice at its Englewood, CO facility informing employees that it would cease and desist from engaging in certain unfair labor practices. The Union argued that the Order requiring the Respondent to post the notice at its Englewood facility will not effectuate the Board's objective of informing affected employees about the outcome of this proceeding and the nature of their rights under the Act, because none of the CSRs employed in the south-central region report to Englewood. The General Counsel similarly argued that few, if any, CSRs will see the notice if it was posted only at the Englewood facility. The General Counsel noted that contact between CSRs and the Respondent's management is generally accomplished through use of personal terminals and requested that Respondent be required to disseminate the notice to all south-central region CSRs by transmitting it via their personal terminals and by mailing it to them.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

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LIST OF DECISIONS OF ADMINISTRATIVE LAW JUDGES

Amber Foods, Inc. (Farm Workers) Dinuba, CA April 23, 2001. 32-CA-18139-1, et al.; JD(SF)-30-01, Judge James L. Rose.

Pinnacle Metal Products Company (Machinists Local 670 and District 97) Muskegon, MI May 21, 2001. 7-CA-43236; JD-73-01, Judge Irwin H. Socoloff.

Mid-Mountain Foods, Inc. (Food & Commercial Workers Local 400) Abingdon, VA May 22, 2001. 11-CA-17684; JD(ATL)-33-01, Judge Keltner W. Locke.

Roofers Local 70 (an Individual) Howell, MI May 23, 2001. 7-CA-43467; JD-74-01, Judge C. Richard Miserendino.

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Overnite Transportation Co. (18-RD-2302, 7-RD-3213, et al.; 333 NLRB No. 166) Blaine, MN and Grand Rapids, MI May 15, 2001. Chairman Truesdale and Member Walsh, with Member Hurtgen dissenting, affirmed the Regional Directors' administrative dismissal of petitions filed by unit employees seeking elections to decertify Teamsters Local 120 and 406 as the representative of employees at the Employer's Blaine and Grand Rapids facilities. Applying Master Slack Corp., 271 NLRB 78 (1984), the majority concluded that the Employer's nationwide campaign of unfair labor practices, which directly affected the employees at its Blaine and Grand Rapids facilities, tainted the decertification petitions filed for those locations. [HTML] [PDF]

The majority said its Master Slack analysis "is based solely on the unfair labor practices litigated and found by the Board and the Fourth Circuit." See Overnite Transportation Co., 329 NLRB No. 91, enforced by the Fourth Circuit, 240 F.3d 325 (4th Cir. 2001), petition for rehearing and rehearing en banc denied (April 17, 2001). There, the Board found that the Employer engaged in a nationwide campaign of extensive and egregious unfair labor practices, including "hallmark" violations of the Act, at all of its facilities.

In this decision, the majority found that because the Board in 1999 examined factors similar to those in the Master Slack analysis to determine whether the Employer's national unfair labor practices warranted the imposition of a Gissel bargaining order at four facilities where the Local Unions had lost representation elections, those conclusions support a finding of a causal connection between the Employer's unlawful conduct and the employees' subsequent disaffection with the Local Unions. Regarding the passage of time from the commission of the unfair labor practices to the filing of the decertification petitions, the majority said "serious unfair labor practices remain unremedied, and thus the passage of time, in and of itself, is not likely to dissipate their coercive effect."

Member Hurtgen found his colleagues' argument that the Gissel analysis in 329 NLRB No. 91 is "similar to" a Master Slack analysis is not correct. A Gissel analysis focuses on whether a fair election can be held and a Master Slack analysis focuses on whether unlawful conduct has a causal nexus (and thereby taints) a decertification petition, he explained. Applying the "causal nexus" test and assuming arguendo that the conduct of 1995 and 1996 is cognizable here and is unlawful, he found there was no showing that it caused the employees to file the decertification petition in 1999. Member Hurtgen noted these factors. More than 3 years elapsed in that time interval and, during that time, the conduct of 1995 was remedied by the formal settlement of that year. The only unremedied conduct was the "unsettled" conduct litigated in 329 NLRB No. 91, which with one exception, did not occur at Blaine and Grand Rapids. And, all of the conduct occurred in 1995 and 1996. He wrote:

We are asked to believe that this conduct lingered in the minds of the employees for many years, and caused them to seek decertification. There is no substantive evidence to support this belief. In these circumstances, I would not deprive these employees of their statutory right to vote on the issue of union representation. The wrongs of the parent should not be visited on the children, and the violations of Overnite should not be visited on the employees.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

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Smithfield Packing Co. (11-CA-18316, et al., 11-RC-6338; 334 NLRB No. 5) Smithfield, VA and Wilson, NC May 18, 2001. Members Liebman and Truesdale granted the Acting General Counsel's request for special permission to appeal the administrative law judge's ruling and reversed the judge's order that required a production of completed questionnaires that the Acting General Counsel had secured (during an investigation of whether the evidence would support a Gissel bargaining order against the Respondent) from employees who had signed union authorization cards but did not testify the hearing. Member Hurtgen concurred in the result, but he did so "with great reluctance." The judge explained that the questionnaires related "to any matter" in question under Section 102.31(b) of the Board's Rules and production would be in "the interest of due process and fair hearing." Members Liebman and Truesdale wrote: [HTML] [PDF]

Section 102.118(a) of the Board's Rules prohibits disclosure of documents in the possession of the General Counsel, whether in response to a subpoena or otherwise, without the General Counsel's written consent. A limited exception to this rule is set forth in Section 102.118(b)(1), which requires the production of statements by the General Counsel or Charging Party witnesses after they have testified. However, no party contends that the questionnaires at issue here are producible under the Section 102.118(b)(1) exception. The employee card signers were not called to testify by the Acting General Counsel or Charging Party. At the trial, the Acting General Counsel sought to authenticate the cards through the testimony of a handwriting expert rather than that of the employee card signers themselves.

Further, we do not agree with the judge that the production of the questionnaires would be in "the interest of due process and fair hearing." As the cards are in evidence, the Respondent knows the identity of the card signers and could therefore secure their testimony to obtain the information in the questionnaires. While, as the judge noted, production of the questionnaires might serve to speed the resolution of the hearing by providing a less time consuming and burdensome means of obtaining such information, ease and celerity do not necessarily implicate due process or a fair hearing. Nor is mere convenience to a party sufficient reason to compel the discovery of questionnaires that are privileged from disclosure under Section 102.118.

Chairman Hurtgen, in concurrence, noted his "misgivings" that Section 102.118 "permits a litigant (the General Counsel) to withhold relevant documents from the opposing party, and there is no comparable privilege for the opposing party." Finding the application of Section 102.118 "particularly troublesome" in this case, he said:

The documents are unquestionably relevant. In addition, any confidentiality has been lost-the card signers have been identified at trial. Further, there is no claim of attorney work product. Finally, although the Respondent could perhaps call the 154 witnesses, that would be time consuming and burdensome to these proceedings. At the very least, the documents could confine the inquiry to those employees whose responses raise questions.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

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Excel Case Ready (1-CA-37682, 37769; 334 NLRB No. 2) Taunton, MA May 18, 2001. The administrative law judge found, and the Board agreed, that the Respondent committed serious and pervasive unfair labor practices in a successful effort to "nip in the bud" the organizational campaign of Food and Commercial Workers Local 791; and that the additional notice and access remedies ordered by the Board in Audubon Regional Medical Center, 331 NLRB No. 42 slip op. at 6-8 (2000), were "necessary to dissipate fully the coercive effects of the discharges and other unfair labor practices." In light of the nature and extent of the Respondent's violations, the Board substituted a broad cease-and-desist order for the narrow one recommended by the judge. [HTML] [PDF]

Member Truesdale agreed that a broad order and special remedy requiring the Respondent to supply the Union with unit employee names and addresses are warranted, but he, unlike the majority, would not impose the additional special remedies requiring reading of the notice and reasonable access to bulletin boards.

The judge found that the Respondent coercively interrogated employees about their union activities and threatened them with loss of their 401(k) plan and other reprisals if they selected the Union, including a threat "to make your lives a living hell." The Respondent engaged in surveillance of union activities by searching employees' lockers and confiscating union materials. Threats were also executed. After telling employees that it was "going to take care of the troublemakers," i.e., "weed[] out people" for "wanting to be in the Union," and then "they won't have a problem no more," the Respondent discharged employee union organizers Keith Fiola, Tamila Fiola, and Michael Paiva in violation of Section 8(a)(3) and (1). The judge found that the Respondent discharged the employees after it learned that the Union had obtained authorization cards from 21 of its 32 employees "to undercut the Union's majority" and the Respondent's discharges of the Fiolas and Paiva "frustrated the hopes of the majority to obtain union representation[.]"

The Respondent unlawfully discharged employees Jan Pacheo and Ernest Watson, although they were not prounion, because it believed that such action was necessary to conceal its unlawful motive in discharging employee organizer Paiva.

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Food and Commercial Workers Local 791; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Boston, Jan. 12-16, 2000. Adm. Law Judge Marion C. Ladwig issued his decision July 28, 2000.

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Healthcare Employees Local 399, SEIU (City of Hope National Medical Center) (21-CB-12840; 333 NLRB No. 170) Duarte, CA May 15, 2001. The Board affirmed the administrative law judge's finding that by threatening the Employer's employees that it would bargain with the Employer to have the work of the rehabilitation department contracted out or "outsourced," Respondent violated Section 8(b)(1)(A) of the Act. [HTML] [PDF]

The individual Charging Parties sought to decertify the union in the rehabilitation department by circulating a union decertification petition before commencement of contract negotiations between the Respondent and the Employer. At a union meeting prior to the negotiations, Jorge Rodriguez, secretary-treasurer of Respondent, was asked how the rehabilitation department employees could get out of the Union and he replied: "Well, if you want out of the union when we get to the bargaining table, we'll get your department outsourced." The judge found, and the Board agreed, that Rodriguez' statement threatened interference with employees' employment relationship with the Employer and constituted a threat of loss of employment.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Jennifer Brown, Barry Shafer, Ron Vandenbrink, Alice Knol, and Carla Dunham, individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Los Angeles, CA, Dec. 18, 2000. Adm. Law Judge Lana H. Parke issued her decision Feb. 16, 2001.

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Aluminum Casting & Engineering Co., Inc. (30-CA-12855, et al.; 334 NLRB No. 3) Milwaukee, WI May 16, 2001. In its decision of April 9, 1999, (328 NLRB No. 2), the Board adopted, with certain modifications, the administrative law judge's findings that the Respondent had engaged in unfair labor practices during the organizing campaign conducted by the Electrical (UE) Workers. [HTML] [PDF]

On October 13, 2000, the U.S. Court of Appeals for the Seventh Circuit issued a decision enforcing the Board's findings that the Respondent violated Section 8(a)(1) and (3) of the Act by (1) indicating to its employees that it would be futile for them to engage in union activity; (2) discontinuing the Company's practice of conducting annual wage surveys, and based thereon, granting annual wage increases, because employees voted to select the Union as their collective-bargaining representative; (3) failing to announce a wage increase, telling employees that there will not be an annual wage increase, all because employees voted to select the Union as their collective-bargaining representative; (4) maintaining a rule restricting employee solicitation that does not clearly indicate that employees are permitted to engage in solicitation during nonworking times; (5) soliciting reports of employees who "pressure" employees into supporting the Union; and (6) paying for damage to vehicles for those employees who claim that the damage was caused by union supporters.

Contrary to the Board, the court found that the Respondent did not violate Section 8(a)(1) by including in its employee handbook the statement that it was the Respondent's "intention to do everything possible to maintain our company's union-free status for the benefit of both our employees and [the Company]." It remanded this matter to the Board and in accordance with the court's opinion, the Board substituted a new Order and notice for those which previously issued.

(Members Liebman, Hurtgen, and Walsh participated.)

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Everman Electric Company, Inc. (15-CA-14261; 334 NLRB No. 6) Gulfport, MS May 16, 2001. The Board granted the General Counsel's motion for summary judgment as to the allegations in paragraphs 1, 2(b)?(f), 3(a), 4(a), 5, 7(a), 12(a), 13(a), and paragraph 15 as it pertained to Frank J. Shrader and David L. Wozencraft of the compliance specification. It denied summary judgment on the issues of interim earnings and expenses of discriminatees Wallace Barnes, Ricky Chuter, Larry Herring, Earl E. Johnson, Porter A. Lee, Roger Maxson, Andy Scara, Joseph Versiga, and John D. Welch and issues of backpay cutoff date for Barnes, Herring, Lee, Johnson, Maxson, and Welch, and remanded these issues for hearing. [HTML] [PDF]

A controversy having arisen over the amount of backpay due the discriminatees under the terms of the Board's October 1, 1999 Order, the Acting Regional Director issued a compliance specification and notice of hearing alleging the amount of backpay due and notifying the Respondent that it must file an answer complying with Section 102.56 of the Board's Rules and Regulations. On June 28, 2000, Respondent filed its response but was notified by the General Counsel that the response did not constitute an appropriate answer. Thereafter, the General Counsel filed for summary judgment. The Respondent argued that its response was a sufficient answer and appended a supplemental answer to its response in the event the Board determined otherwise.

The Board accepted and considered the supplemental answer and citing Standard Materials, Inc., 252 NLRB 679 (1980), held that even in the absence of an amended backpay specification, a respondent may amend its answer prior to a hearing in the compliance proceeding.

(Members Liebman, Hurtgen, and Walsh participated.)

General Counsel filed a motion for summary judgment on September 12, 2000.

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Ridgewell's, Inc. (5-CA-27800; 334 NLRB No. 9) Washington, DC May 18, 2001. The Board, in agreement with the administrative law judge, concluded that the Respondent is a successor employer, subject to the duty to bargain with Hotel & Restaurant Employees Local 25. NLRB v. Burns Security Services, 406 U.S. 272, 294-295 (1972). In refusing to bargain with the Union and unilaterally making changes to the terms and conditions of employment of the wait staff, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act. [HTML] [PDF]

The Board agreed with the judge that the Respondent did not violate the Act when it discontinued fringe benefit contributions for employees after it took over the afternoon and evening catering functions at the United States House of Representatives in January 1998. The Respondent claimed its announcement of an intent to employ the predecessor's employees as independent contractors was both timely and substantive, putting the Union on notice that a new set of employment conditions would be in effect. The Board agreed. That the employees continued to work for the Respondent as statutory employees, rather than as independent contractors, does not alter that the Respondent's announcement portended employment under different terms and conditions, it held.

Since the Respondent announced its clear intention before any hiring, it is not a "perfectly clear" successor under Burns and Spruce Up Corp., 209 NLRB 194 (1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975), and it did not violate the Act by establishing initial terms and conditions of employment without first bargaining with the Union.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Hotel & Restaurant Employees Union, Local 25; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Washington, DC on April 6, 2000. Adm. Law Judge Jerry M. Hermele issued his Decision June 26, 2000.

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Tomatek, Inc. (32-CA-16779, 16876; 333 NLRB No. 156) Firebaugh, CA May 8, 2001. The Board adopted the administrative law judge's decision dismissing the complaint that alleged the Respondent had early knowledge of an organizing effort by the Charging Party Union and discriminated against employees Jose Lopez and David Rivera for their involvement in protected activities. The organizing drive began in late February 1998. The Board found no credited record evidence that the Respondent was aware of it or the two employees' involvement until May 26, 1998, when it received notice of unfair labor practice charges alleging that Lopez' discharge and Rivera's discipline were unlawful. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Graphic Communications District Council 2, Local 388M; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Fresno and Clovis, Feb. 9-11, 1999. Administrative Law Judge Timothy D. Nelson issued his decision July 20, 1999.

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Grouse Mountain Lodge (19-CA-24764, 24765; 333 NLRB No. 157) Whitefish, MT May 7, 2001. The Board majority of Chairman Truesdale and Member Walsh adopted the administrative law judge's finding that a statement by the Respondent's hotel manager, William Caron, to employee Terry Widdifield that "this Union movement thing wasn't happening" and that he could "get these things for [her]" constituted an unlawful promise of unspecified benefits to dissuade employees from supporting the Union. Dissenting on this issue, Member Hurtgen thought the manager's comment "either as intended or understood" was unclear. He pointed out that "an employer is free to speak about a union campaign." [HTML] [PDF]

The Board disagreed with the judge that the Respondent created the impression that it was engaging in surveillance of its employees' union activities. At issue was a memorandum to employees issued on August 15, 1996 by the Respondent's controller, Kayla Elkins, in which she stated that the Respondent had "recently concluded those organizing activities had failed from lack of employee interest and support." The majority, however, citing Atlantic Forest Products, 282 NLRB 855 (1987), agreed with the judge that the Respondent violated Section 8(a)(1) by a separate statement in the memo that the Respondent's delay in implementing the two new benefits was caused by the Union's organizing campaign. Dissenting on this point, Member Hurtgen said the Respondent blamed the law, not the Union. "The Respondent simply explained that the Union could not take credit for the ultimate grant of the benefits," he stated.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charges filed by Hotel Employees & Restaurant Employees Local 427; complaint alleged violation of Section 8(a)(1) and (2). Hearing at Kalispell, Sept. 16 and 17, 1997. Administrative Law Judge Burton Litvack issued his decision July 16, 1998.

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W.R. Mollohan, Inc. (9-CA-36048-1, et al.; 333 NLRB No. 162) Charleston, WV May 7, 2001. The Board agreed with the administrative law judge's finding that the Respondent unlawfully refused to abide by a collective-bargaining agreement effective June 1, 1998 through May 31, 2001. The contract was negotiated on the Respondent's behalf by a contractors' association. The Respondent's vice president of operations, Joe Beam, also was president of the Association and a member of the Association's negotiating committee. He attended one negotiating session (the first on April 7, 1998), but resigned from the negotiating committee on April 17. The parties reached an agreement at the second session on April 28 contingent upon union membership ratification. On May 8, Beam wrote a letter to the Association stating that the Respondent withdrew authorization from the Association to bind it in collective bargaining. On these facts the Board concluded: [HTML] [PDF]

The record does not firmly establish that the employers in the Association were in a multiemployer unit. Beam and Bowen, however, told the Union on April 7 that the Association represented specific individual employers including the Respondent. Thus, the Association had apparent authority to act as the agent for each of the named employers. The fact that Beam resigned from the Association's negotiating committee on April 17 did not take away the principal-agent relationship between the Respondent and the Association. Thus, when the Association and the Union reached an agreement on April 28, that agreement was binding on the Respondent. Accordingly, the Respondent's subsequent attempt to withdraw bargaining authority from the Association on May 8, was untimely.

(Members Liebman, Hurtgen, and Walsh participated.)

Charges filed by Painters Locals 970 and 1144; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Charleston, June 29-30, 1999. Adm. Law Judge William N. Cates issued his bench decision July 28, 1999.

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Premcor, Inc. (13-UC-354; 333 NLRB No. 164) Blue Island, IL May 8, 2001. The Board, while agreeing with the Acting Regional Director that the bargaining unit should be clarified to include PCCs (process control coordinators), disagreed with his application of an accretion analysis and his finding that the PCCs are an "accretion" to the unit. The Board found it was appropriate to clarify the existing unit to include the newly-created classification of PCCs because they perform the same basic functions historically performed by the members of the bargaining unit. It said that the PCCs are appropriately members of the production and maintenance unit. Brockton Taunton Gas Co., 174 NLRB 969, 971 (1969). [HTML] [PDF]

The Employer maintained that the PCCs are not an accretion to the existing bargaining unit because they do not share a sufficient community of interest with members of that unit and are technical employees and/or statutory supervisors.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Brockton Hospital (1-CA-35136, 35875; 333 NLRB No. 165) Brockton, MA May 11, 2001. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by prohibiting the distribution of union literature in the vestibule adjacent to its front lobby. After considering the General Counsel's exception to the judge's failure to address a separate complaint allegation that the Respondent prohibited such distributions anywhere on its premises, the Board dismissed the allegation in the absence of any credited testimony that the Respondent banned all distribution of the disputed literature on its premises. In this regard, it found that the judge implicitly credited the testimony of the Respondent's witnesses over that of the General Counsel's witnesses on the issue. [HTML] [PDF]

The judge concluded that the Respondent also violated Section 8(a)(1) by maintaining an overly broad no-solicitation/no-distribution policy in its 1994 Associate Handbook. Chairman Truesdale and Member Walsh disagreed with the judge's finding that the language of the first two paragraphs of the policy was overly broad because it does not specifically exclude breaktimes from the definition of working time and, in agreement with the General Counsel's exceptions, found that the third paragraph of the policy is overly broad insofar as it prohibits any solicitation or distribution of literature in "halls and corridors used by patients." They agreed with the judge that substantially identical language, in the Respondent's Administrative Policy Manual, violated Section 8(a)(1) because its blanket prohibition extends beyond immediate patient care areas; and they found the similar prohibition, in the Associate Handbook, against solicitation or distribution of literature in "halls and corridors used by patients" likewise violated Section 8(a)(1). The Chairman and Member Walsh adhered to established Board precedent that a hospital's prohibition of solicitation or distribution of literature in immediate patient care areas, even during employees' nonworking time, is presumptively lawful, and that restrictions on solicitation, during nonworking time, or distribution of literature, during nonworking time and in nonworking areas are presumptively unlawful even with respect to areas that may be accessible to patients.

Member Hurtgen, dissenting in part, would revise the Board's current principles to allow prohibitions of solicitation and distribution in areas where patients, their families, and visitors spend a substantial amount of time, finding the principles "are premised on an overly narrow concept of how hospitals provide treatment and care to their patients." He would find presumptively unlawful however a prohibition of solicitation and distribution in the vestibule, which is essentially a place where people pass through from one place to another, and in the hospital cafeteria, which is ordinarily used on a transient basis and generally is open to the general public. Member Hurtgen stressed that his position does not unreasonably restrict Section 7 communications among employees, noting "there are myriad opportunities for such communications" (employee break areas, cafeterias, and vestibules) and that employees can converse away from the hospital and in parking areas as they come to and from work. The Respondent's revised Administrative Policy Manual that bars solicitation and distribution in "areas used by patients, families or visitors," would be presumptively unlawful to the extent it covers the cafeteria and vestibule, Member Hurtgen explained.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by the Massachusetts Nurses Association; complaint alleged violation of Section 8(a)(1) and (3). Hearing over 8 days between Nov. 2 and 20, 1998. Adm. Law Judge Martin J. Linsky issued his decision March 25, 1999.

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O-J Transport Co. and Gratiot Driver Leasing, Inc. (7-CA-41105; 333 NLRB No. 168) Detroit, MI May 11, 2001. Affirming the administrative law judge's findings, the Board held that Respondent O-J Transport Company (O-J) violated Section 8(a)(2) and (1) of the Act by recognizing National Federation of Public and Private Employees, Federation of Private Employees Division (FOPE) as the bargaining representative of a unit of its truck drivers at a time when O-J did not employ a substantial and representative complement of employees in the unit; and that O-J violated Section 8(a)(3) and (1) by entering into and enforcing a collective-bargaining agreement with FOPE containing a union-security clause. Although the judge found that user employer O-J and supplier employer Gratiot Driver Leasing, Inc. (GDL) are joint employers of drivers on GDL's payroll, he found that GDL had dissolved and that its dissolution took place at the same time that O-J was committing unfair labor practices; that GDL was not a party to the contract with FOPE, and thus need not be directed to remedy the violations arising from that agreement; and that there was no reason to believe that O-J could not provide the appropriate monetary remedy imposed. [HTML] [PDF]

Addressing the General Counsel's argument that the judge should not have excused GDL from all remedial obligations and agreeing with the judge that no remedy is warranted, the Board explained:

FOPE sought recognition only from O-J (not from GDL), and it is clear that only O-J unlawfully recognized and entered into a contract with FOPE. Thus, even if the Respondents were joint employers of some drivers at the time O-J extended recognition, there is no basis for finding liability on the part of GDL. We therefore need not decide whether O-J and GDL were joint employers because the determination of that issue would not affect the outcome of this case.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by the Autoworkers (UAW); complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing at Detroit, April 21-22, 1999. Adm. Law Judge Philip P. McLeod issued his decision Sept. 23, 1999.

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Adelphia Communications Corp. (21-RD-2677; 333 NLRB No. 145) City of Industry, CA April 27, 2001. The Board concluded that the successor bar doctrine does not preclude the processing of the decertification petition filed by Teamsters Local 986 before Adelphia Communications became a successor employer and adopted its predecessor's collective-bargaining agreement with the Union. It reversed the Regional Director's decision and order dismissing the petition pursuant to the successor bar doctrine enunciated in St. Elizabeth Manor, Inc., 329 NLRB No. 36 (1999), and remanded to her for processing of the petition, holding: [HTML] [PDF]

In contrast to St. Elizabeth, in which an RM petition was filed by a successor employer nearly 5 months after it had assumed operations and 3 months after it had granted recognition to the incumbent union, the decertification petition here was filed at a time when the Union was still in a bargaining relationship with the Employer's predecessor. Indeed, the petition was filed during the window period of the predecessor's contract, and, had the predecessor employer continued in existence, an election would have been held after the unfair labor practice charges filed by the Union were ultimately dismissed or withdrawn.

Under these circumstances, the underlying purpose of the successor bar doctrine-to permit the union, as a party to a newly established relationship, to bargain for a reasonable period of time free from challenges to its majority status-would not be served.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Titan Tire Corp. (18-CA-14863; 333 NLRB No. 140) Des Moines, IA April 30, 2001. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by threatening to and discontinuing group insurance benefits for 24 employees who were on approved leaves of absence at the initiation of an employee strike; threatening to and moving equipment and bargaining unit jobs from its Des Moines facility to Brownsville, Texas; failing to furnish information to or bargain with Steelworkers Local 164L over mandatory subjects; threatening employees that it would hire permanent replacement workers when they were engaged then in an unfair labor practice strike; failing to furnish the Union with a list of replacement workers; and threatening to and unilaterally implementing its final offer in the absence of a lawful, good-faith impasse. [HTML] [PDF]

This case arose out of the parties' bargaining for a successor agreement and an ensuing strike. The Board agreed with the judge's resolution of the issues, but it discussed further these two issues: (1) the conversion of the employees' strike from an economic strike to an unfair labor practice strike; and (2) the Respondent's unilateral implementation of its final offer in the absence of a lawful impasse.

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Steelworkers Local 164L; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Des Moines, Oct. 13-14, 1998. Adm. Law Judge Jerry M. Hermele issued his decision Feb. 11, 1999.

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Pioneer Electric of Monroe, Inc. and Pioneer Electrical and Mechanical Contractor, Inc., a single employer and/or alter ego (15-CA-15190, et al.; 333 NLRB No. 143) Monroe, LA April 30, 2001. The Board affirmed the administrative law judge's finding that Pioneer Electric of Monroe, Inc. (Pioneer 1) and Pioneer Electrical and Mechanical Contractor, Inc. (Pioneer 2) constitute both a single employer and alter egos; and that the Respondent violated Section 8(a)(5), (3), and (1) of the Act. Specifically, the Respondent failed and refused to provide Electrical Workers IBEW Local 446 with information it requested reflecting electrical jobs and projects, employees who worked on the jobs, and the hours they worked; dealt directly with unit employees regarding their terms and conditions of employment; ceased to operate Pioneer 1; terminated unit employees of Pioneer 1; and failed to apply the collective-bargaining agreement to unit employees of Pioneer 2 without notice to or bargaining with the Union and in order to avoid the contractual obligations. [HTML] [PDF]

The Respondent excepted only to the judge's recommended remedy of reinstatement and backpay for six employees who were unlawfully laid off when Pioneer 1 closed on January 14, 2000, arguing that the employees rejected offers of employment with Pioneer 2 on that date so it should not be required again to extend offers of employment or to give them backpay. The Board wrote in finding that the traditional backpay and reinstatement remedy ordered by the judge was proper: "Absent exceptions, it is now undisputed that the Respondent did not offer the discriminatees employment under the same contractual terms and conditions and with the continued collective-bargaining representation by the Union that they had while employed by Pioneer 1. The offers of employment were therefore part and parcel of the Respondent's unfair labor practices and cannot serve to toll the Respondent's remedial obligations."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Electrical Workers IBEW Local 446; complaint alleged violation of Section 8(a)(1), (3), and 5). Hearing at Monroe, July 17-18, 2000. Adm. Law Judge Richard J. Linton issued his decision Feb. 23, 2001.

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United Parcel Service (27-CA-16064, et al.; 333 NLRB No. 146) Commerce City, CO April 30, 2001. The Respondent violated Section 8(a)(1), (3), and (4) of the Act by discharging Andre Kazanjian on March 22, 1999, the Board held in agreement with the administrative law judge. Member Hurtgen found it unnecessary to pass on the 8(a)(4) allegation because the 8(a)(3) remedy effectively cures the discharge. [HTML] [PDF]

(Members Liebman, Hurtgen, and Walsh participated.)

Charges filed by Andre Kazanjian, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Denver, Feb. 9-11 and 14, 2000. Adm. Law Judge Albert A. Metz issued his decision Aug. 11, 2000.

* * *

Wayne Erecting, Inc. (30-CA-13915; 333 NLRB No. 149) Big Bend, WI April 30, 2001. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) of the Act by refusing to consider Brent Emons for employment and that it did not violate Section 8(a)(3) by refusing to hire 20 applicants for employment. Citing FES (A Division of Thermo Power), 331 NLRB No. 20 (2000), the Board did not adopt the judge's finding that the Respondent did not unlawfully refuse to hire Emons for employment, but instead remanded the issue to him for further consideration. The Board issued a final order only with respect to the dismissal of the 20 refusal-to-hire allegations because the refusal to consider Emons would be subsumed within the remedy for a refusal-to-hire violation. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Iron Workers Local 8; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Milwaukee on June 8, 1998. Adm. Law Judge Robert A. Giannasi issued his decision Sept. 23, 1998.

* * *

Cobb Mechanical Contractors, Inc. (16-CA-16483; 333 NLRB No. 142) Amarillo, TX April 30, 2001. The Board found, in agreement with the administrative law judge, that the backpay formula is acceptable and that it approximates what the discriminatees would have earned had there been no discrimination, and ordered that the Respondent make whole 22 discriminatees by paying them amounts totaling $672,890. It agreed with the judge that Don Green did not make reasonable efforts to mitigate damages. The Board in 1995 adopted a different administrative law judge's decision that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider the 23 individuals for employment at jobsites in Amarillo and Dalhart, Texas because of their membership in Plumbers Local 196. [HTML] [PDF]

In this supplemental proceeding, the Respondent excepted to the judge's finding that a premise implicit in the backpay formula used by the General Counsel is that the Respondent would have hired the discriminatees who applied as journeyman plumbers to fill plumber's helper positions. The Respondent argued that with minor exceptions, the discriminatees are entitled to no backpay. Finding that the backpay formula is not unreasonable or arbitrary, the Board pointed to the credited testimony of the compliance officer that the discriminatees informed her they would have accepted jobs as plumber's helpers, if they had been offered the positions. The Board held it is reasonable to approximate what the discriminatees would have earned absent any discrimination, that any uncertainty should be resolved in favor of the wronged party rather than the wrongdoer, and that it is axiomatic that the finding of an unfair labor practice is presumptive proof that some backpay is owed.

(Chairman Truesdale and Members Liebman and Walsh participated.)

Adm. Law Judge Keltner W. Locke issued his supplemental decision May 13, 1998.

* * *

Liquor Industry Bargaining Group, et al. (22-CA-19915, et al.; 333 NLRB No. 137) Kearney, Trenton, and Milburn, NJ May 2, 2001. Chairman Truesdale and Member Liebman agreed with the administrative law judge that the totality of Respondent Liquor Industry Bargaining Group's conduct during negotiations with Food and Commercial Workers Local 19d for a successor agreement, evidenced an intent to frustrate agreement on a collective-bargaining contract with the Union, and that such conduct constituted bad-faith bargaining in violation of Section 8(a)(5) of the Act. Member Hurtgen dissented. [HTML] [PDF]

The Union represents sales representatives employed by the employer-members of Liquor Industry Bargaining Group (the Group), a multiemployer group of wholesale liquor distributors. The Group made a final contract proposal to the Union on March 24, 1994 following months of bargaining. By letter dated May 13, 1994, the Group announced that it planned to implement its final contract proposal on June 1, 1994, which included a modification to the unit members' compensation plan and changes to other significant contract provisions as well.

The majority found these factors establish that the Group entered into bargaining with no real intent to reach a collective-bargaining agreement. The Group's final offer, which would have granted its employer-members broad discretionary authority over wages, was extreme in nature; was made without any corresponding incentives to secure the Union's assent; has the effect of granting its members exclusive and unilateral control over wages; permits further dissipation of unit work and employee earnings by allowing supervisors to perform unit work and by allowing employers to remove sales accounts without replacing lost accounts similarly valued ones; and strikes at the core of the sales representatives' most significant interest--wages and volume of accounts--and severely diminishes any role played by the Union with respect to those interests. The majority noted also that throughout negotiations, despite repeated pleas from the Union, the Group adamantly refused to engage in reasoned discussion of its demands.

Dissenting Member Hurtgen said his colleagues relied "principally on their dislike" of the Respondent's proposals and "do not cite any evidence of footdragging, dilatoriness, closed-mindedness, lack of information, etc." Regarding their criticism of the absence of information and explanation, Member Hurtgen noted that there is no allegation or finding that Respondent withheld relevant requested information and that the Respondent explained that it desired flexibility with respect to wages. "My colleagues simply do not like the explanation."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Food and Commercial Workers Local 19d; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Newark, May 9-10, 15-16, June 20-21, July 17, and Aug. 15, 1996. Adm. Law Judge Robert T. Snyder issued his decision April 15, 1997.

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Madelaine Chocolate Novelties, Inc. (29-RC-9553, 333 NLRB No. 153) Rocaway, NY May 4, 2001. Contrary to the Regional Director, the majority of Chairman Truesdale and Member Walsh found that a 2000-2004 collective-bargaining agreement was "nothing more than an agreement to begin negotiations in the near future" and therefore did not operate as a bar to the Petitioner's petition filed on October 19, 2000. The majority, citing Appalachian Shale Products Co., 121 NLRB 1160 (1958), pointed out that in order to act as a bar to a petition, one rule is that "a collective bargaining agreement must contain substantial terms and conditions of employment deemed sufficient to stabilize the bargaining relationship." Here the contract did not satisfy this rule, the majority said. [HTML] [PDF]

In dissent, Member Hurtgen agreed with the Regional Director that the contract was a bar at the time the petition was filed since it set forth the full terms and conditions of employment for the one-year period April 1, 2000 to March 31, 2001. He said there was no evidence to support majority's view that the parties did not engage in "substantive negotiations."

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

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CMT, Inc. (16-RC-10242; 333 NLRB No. 151) Dallas, TX May 4, 2001. The Board affirmed the Acting Regional Director's conclusion in his Decision and Direction of Election that the Petitioner is not disqualified from representing the Employer's drivers in the Dallas/Ft. Worth area because of an alleged conflict of interest. The Employer had contended the Petitioner should be disqualified because the Employer's inner-city drivers compete for the same work performed by the U.S. Postal Service drivers who are represented by the Petitioner. [HTML] [PDF]

During 1995 to 1997, the Petitioner filed several related grievances pertaining to work contracted out by USPS in the area. In an arbitration award on July 22, 2000, the arbitrator found that USPS violated the national agreement when it contracted out work in an improper manner. The arbitrator remanded the grievances to the parties to attempt to reach an agreement but they were unsuccessful. Relying on the arbitration award, the Employer contended the Petitioner had a disabling conflict of interest. In finding no merit to the Employer's contention, the Board stated:

Should the Petitioner become the certified representative of the Employer's employees, it will no longer be faced with the possibility of USPS' subcontracting work to the Employer as a nonunion company. Thus, the Petitioner's interest in seeking to remove the subcontracted work may well cease to exist, and the Petitioner may well, after certification, drop its proposal under the arbitration award to return the work subcontracted to the Employer to USPS. Under these circumstances, we find that the Petitioner's proposal does not present an 'overt act' showing a 'clear and present danger' of interfering with the bargaining process.

(Chairman Truesdale and Members Liebman and Walsh participated.)

* * *

The West Company (17-CA-19914, et al.; 333 NLRB No. 155) Kearney, NE May 4, 2001. Reversing the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to execute a written collective-bargaining agreement reached by the parties on October 21, 1998. The principal issue presented was whether the Respondent's final offer had lapsed between the time the offer was made and the time the Union accepted the offer--five months later. [HTML] [PDF]

The Board concluded "the Union accepted the final offer at a time when it was still on the table and susceptible to acceptance," and pointed out that the Respondent did not explicitly withdraw its final offer.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Steelworkers Local 815; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Omaha on July 15, 1999. Adm. Law Judge Thomas M. Patton issued his decision Oct. 25, 1999.

* * *

Kelly Construction of Indiana, Inc. (25-CA-24005, et al., 25-RC-9751; 333 NLRB No. 148) Lafayette, IN May 2, 2001. Affirming the administrative law judge, Chairman Truesdale and Member Hurtgen concluded that the General Counsel met the initial burden of proving discriminatory motivation for the Respondent's refusal to hire 27 union applicants, but that the Respondent proved that it would not have hired them, for legitimate reasons, even in the absence of their union affiliation. Finding that the judge's analysis of the refusal-to-hire allegations is consistent with the Board's decision in FES, 331 NLRB No. 20 (2000), the majority held, contrary to dissenting Member Liebman, that no useful purpose would be served by remanding the allegations to the judge and, thus, dismissed them. [HTML] [PDF]

Chairman Truesdale and Member Hurtgen agreed with the judge that the Respondent made its hiring decisions based on the neutral application of legitimate and nondiscriminatory policies, one of which was a preference for hiring applicants who were accustomed to earning wages within the range the Respondent would pay; and that the Respondent would have made the same hiring decisions regardless of the salts' union affiliation because they did not satisfy its lawful hiring criteria, at least with respect to the wage the applicants were accustomed to earning.

Member Liebman, in dissent, would remand to the judge "to analyze the refusal-to-hire allegations under the FES framework, to decide whether the Respondent's hiring policies were truly neutral and uniform, and to address the evidence relied on by the General Counsel that undermines the Respondent's affirmative defense." She found that the judge failed to specifically address whether the Respondent met its burden with respect to its affirmative defense by showing that its hiring policies were not merely an ad hoc response to the union campaign but were: (1) in existence before the organizational effort; (2) openly promulgated; and (3) widely disseminated among the personnel involved in the hiring process. "Further, while Chairman Truesdale is correct that the General Counsel is not contending that the Respondent's hiring policies are per se unlawful, the General Counsel does argue that those polices were not uniformly applied," she said.

On other issues, the Board affirmed the judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing written disciplines to Stephen Crabb, Sr., discharging David Brown, and laying off Crabb, Jay Struthers, and Chad Emmons because of their union activities; and violated Section 8(a)(1) and interfered with the election held in Case 25-RC-9751 on April 16, 1998 by certain conduct, including keeping employees' union activities under surveillance, coercively interrogating employees about their union activities, and threatening employees with discharge and other reprisals if they engaged in union activities. The Board set aside the election and remanded the case to the Regional Director to conduct a new election.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Lafayette, Feb. 3-5, March 9-12, and April 27-30, 1998. Adm. Law Judge Irvin H. Socoloff issued his decision May 11, 1999.

* * *

Rapera, Inc. (2-RM-2085; 333 NLRB No. 150) New York, NY May 2, 2001. Chairman Truesdale and Member Hurtgen would reverse the Regional Director's administrative dismissal of the Employer's petition for an election based on his finding that Restaurant Employees and Hotel Employees Local 100 had not exhibited a present demand for recognition, and reinstate the petition. Members Liebman and Walsh would affirm the Regional Director's administrative dismissal, noting, "there is no evidence to indicate that the Union at any time conveyed to the Employer any claim, written or oral, that it represented its employees or that it was seeking immediate recognition." Since the Board is equally divided, and there is no majority to reverse the Regional Director's action, the administrative dismissal was affirmed. [HTML] [PDF]

The Employer operates the employee cafeteria, restaurants, and other food and beverage facilities at the Metropolitan Opera House at Lincoln Center, New York City. There are approximately 95 hourly food and beverage workers in the petitioned-for bargaining unit. Since March 1999, the Union has attempted to organize the employees at the Employer's facility. It has requested, through picketing, demonstrations, and letters to third parties, that the Employer sign a neutrality/card check agreement under which the Employer would agree to recognize and bargain with the Union upon a showing of majority support through signed authorization cards. The Union claimed, in a union agent's affidavit submitted to the U.S. District Court in a case involving a related matter, that it has in fact achieved majority support through signed authorization cards. Based on these actions, the Employer filed the instant RM petition.

Chairman Truesdale and Member Hurtgen found that the Union's insistence that the Employer sign a neutrality/card check agreement, combined with its sworn statement to the court that it had obtained authorization cards from 80 percent of the 95 unit workers, is tantamount to a request for immediate recognition. That finding, they noted, is not inconsistent with New Otani Hotel, 331 NLRB No. 159, where the Board held that picketing aimed at pressuring an employer to sign a neutrality/card check agreement is not, by itself, the equivalent of recognitional picketing or a present demand for recognition. Unlike New Otani, the Union's demands for a neutrality/card check agreement in this case were accompanied by a statement in a court affidavit that the union had already obtained a majority of signed authorization cards, the Chairman and Member Hurtgen explained.

Member Hurtgen adheres to his dissent in New Otani, but for purposes of resolving this case, he accepted that the majority decision in New Otani represents current Board law. He agreed that this case is distinguishable and that New Otani does not control here.

Members Liebman and Walsh found that the Union's request that the Employer sign a neutrality/card check agreement and its statements to third parties that it had obtained a majority of signed authorization cards do not constitute a demand for recognition. Regarding the statement of majority status made in a sworn affidavit, they noted that the Employer was not a party to the lawsuit, which did not involve the issue in this case-the Employer's right under Section 9(c)(1)(B) to file a representation petition. The statute specifically provides that the demand for recognition must be made directly to the employer, Members Liebman and Walsh said. The Employer failed to present any evidence of a direct communication by the Union.

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

* * *

Teamsters Local 710 (United Parcel Service) (25-CB-8150, et al.; 333 NLRB No. 159) Elkhart, IN May 3, 2001. Affirming the administrative law judge's decision, the Board dismissed the complaint allegations that the Respondent violated Section 8(b)(1)(A) of the Act by bringing internal union charges, conducting trials, and reprimanding, and assessing fines against 27 named union members, which included the Charging Parties, in contravention of a negotiated no-retaliation agreement. The General Counsel alleged that the settlement memorandum prohibited the Respondent and Employer from disciplining employees for any conduct that occurred during an economic strike against the Employer called by the Teamsters International. The judge found however that the agreement prohibited only the Employer from imposing any "penalty or discipline" in employment against employees. [HTML] [PDF]

Member Hurtgen disavowed the judge's observations that the General Counsel's interpretation of the agreement is "strained" or "tortured." He found that the language of the agreement is ambiguous and that the agreement, as clarified by parol evidence, does not support the General Counsel's case.

The International and other local unions represent the Employer's employees throughout the United States. The Respondent has a separate contract for approximately 6000 of the Employer's employees working at various locations in Illinois, Iowa, and Indiana. It began and completed negotiations with the Employer during the International's strike without calling a strike in the unit covered by its collective-bargaining agreement. Many of its members however supported the International's strike by refusing to cross picket lines at other terminals and facilities and refusing to handle "struck work" at their own facilities.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charges filed by Bradley Pletcher, Donald Hinkle, Jr., Bill Loomis, Brent Butler, and Timothy Williams, individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Goshen on Sept. 23, 1999. Adm. Law Judge Jane Vandeventer issued her decision Dec. 9, 1999.

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Frito-Lay, Inc. (26-CA-18235, 18682; 333 NLRB No. 154) Jackson, MS May 3, 2001. A Board majority of Chairman Truesdale and Member Liebman affirmed the administrative law judge's finding that by failing to provide Bakery Workers Local 149 information reflecting the average wage rate and racial makeup of the workforces at the Respondent's other facilities, i.e., those other than the unit facility in Jackson, the Respondent violated Section 8(a)(5) and (1) of the Act. [HTML] [PDF]

Citing Public Service Electric & Gas Co., 323 NLRB 1182, 1186 (1997), enfd. 157 F.3d 222 (3d Cir. 1998), the majority said: "[i]t is well established that when a union seeks information concerning matters outside the bargaining unit, the union is required to make a showing of relevancy and necessity." In this context, Chairman Truesdale and Member Liebman found the Union satisfied its burden of showing "probability that the desired information is relevant?and would be of use to the union in carrying out its statutory duties and responsibilities."

Chairman Truesdale and Member Hurtgen agreed with the judge's conclusion that the Respondent did not violate the Act when it ceased to deduct union dues after it lawfully cancelled the contract. Hacienda Resort Hotel & Casino, 331 NLRB No. 89 (2000). For the reasons set forth in the Hacienda dissent, Member Liebman would find the Respondent violated Section 8(a)(5) and (1) of the Act.

Concurring in part and dissenting in part, Member Hurtgen argued the Respondent should only have to provide the Union with the requested information if the Union can show how the information would "aid the bargaining process." He said the mere fact that a party wishes to make a certain contention in bargaining does not necessarily mean that the party is entitled to nonunion information to support the contention.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Bakery, Confectionery and Tobacco Workers Local 149; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Jackson, June 3 and 4, 1998. Adm. Law Judge George Carson II issued his decision July 29, 1998.

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Signature Flight Support (12-CA-19431; 333 NLRB No. 144) Orlando, FL May 2, 2001. Adopting the administrative law judge's recommendations, the Board held that the Respondent violated Section 8(a)(1) of the Act by discharging employees Blanca Cintron, Judith Fumero, and Carmen Reyes. In the context of a Wright Line analysis, the Board found that the General Counsel made a showing sufficient to support the inference that the Respondent's belief that Cintron, Fumero, and Reyes engaged in protected concerted activities was a motivating factor in its decision to discharge them. The Respondent has not met its burden under Wright Line of demonstrating that it would have taken the same action even in the absence of the employees' protected concerted activity, the Board said. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Judith Fumero, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Orlando, June 21-23, 1999. Adm. Law Judge Keltner W. Locke issued his decision Oct. 6, 1999.

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Teamsters Local 170 (Leaseway Motor Car Transport Company) (1-CB-9082; 333 NLRB No. 152) Framingham, MA May 3, 2001. A Board majority of Chairman Truesdale and Member Liebman reversed the administrative law judge's finding that the Respondent violated Section 8(b)(1)(A) of the Act by imposing intraunion discipline against Charging Party James Fiori and union member Julio Fontecchio and by removing Fiori from elected union office as vice president of Local 170. In dismissing the complaint, the majority said: [HTML] [PDF]

After the judge's decision in this case issued, the Board issued its decision in Office Employees Local 251 (Sandia National Laboratories), 331 NLRB No. 193 (2000). The Board held in that case that it will "no longer proscribe intraunion discipline under Section 8(b)(1)(A) which involves a purely intraunion dispute, and does not interfere with the employee-employer relationship, or contravene a policy of the National Labor Relations Act." . . . In so doing, the Board overruled the precedent on which the judge relied in finding the discipline of Fiori and Fontecchio unlawful.

Member Hurtgen, in dissent, agreed with the judge's conclusion that the Respondent's action against Fiori was a monetary penalty for his Section 7 activity. He found the removal of Fiori from his elected office and its action against Fontecchio violated Section 8(b)(1)(A). As set forth in his dissenting opinion in Service Employees Local 254 (Brandeis University), 332 NLRB No. 103 (2000), Member Hurtgen distinguished, in this context, between appointed positions and elected positions.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by James R. Fiori, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Boston, May 18-20, 1998. Adm. Law Judge James L. Rose issued his decision Aug. 13, 1998.

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Tidewater Construction Corporation (5-CA-25463; 333 NLRB No. 147) Virginia Beach, VA May 2, 2001. Chairman Truesdale and Member Hurtgen affirmed the administrative law judge's dismissal of the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider hiring certain former employees as temporary replacements during a lockout. Contrary to dissenting Member Liebman, they found that the lockout did not become unlawful because the Respondent expanded the lockout beyond current employees who had participated in the strike and refused to consider for hire six job applicants who, by virtue of their prior history of employment in the bargaining unit, were eligible to vote in a Board election held 9 months prior to the start of the lockout. The majority said ". . . an employer does not violate the Act by locking out is bargaining unit employees temporarily for the sole purpose of pressuring them to accept its bargaining proposals." American Ship Building Co. v. NLRB, 380 U.S. 300 (1965). [HTML] [PDF]

Member Liebman, in partial dissent, agreed with the judge's finding that Section 10(b) of the Act bars the complaint allegation that the lockout was unlawful from its inception. However, she would reverse the judge and find that the Respondent violated Section 8(a)(3) and (1) by expanding the lockout beyond its current employees and refusing to consider for employment six job applicants whom it knew or suspected were union members or supporters.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Operating Engineers Local 147; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Virginia Beach, Nov. 5-7, 1997. Adm. Law Judge Benjamin Schlesinger issued his decision Aug. 11, 1998.

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Marian Manor for the Aged & Infirm, Inc. (1-RC-21240, 21241; 333 NLRB No. 133) South Boston, MA April 24, 2001. The Board denied the Employer's request for review of the Regional Director's Decision and Direction of Election and amended the decision to permit an admissions coordinator and bookkeeper to vote subject to challenge. [HTML] [PDF]

A majority of Chairman Truesdale and Member Liebman found the hearing officer did not err by refusing to require the production of responses sought by the Employer to the Petitioner's survey of the nursing staff as to their supervisory authority. The majority said the Employer failed to show that it was unable to obtain by other means the substantial equivalent of the information contained in the survey responses. In dissent, Member Hurtgen would have granted the Employer's subpoena seeking the nurses' responses, remanded the case for further hearing, and then decided the supervisory issue. "The R-case hearing is a search for truth, and the subpoenaed documents are relevant to that search," he said.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

* * *

American Federation of Musicians Local 148-162 (333 NLRB No. 139) Atlanta, GA April 24, 2001. The Board upheld the administrative law judge's dismissal of a complaint in which the Charging Party, a cellist with the Atlanta Symphony Orchestra, claimed the Union had refused to process his grievance that he was not seated in the "first stand" as promised upon being hired. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Daniel O. Laufer, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Atlanta, Jan. 5-7, 24, 25 and 31, 2000. Adm. Law Judge Jane Vandeventer issued her decision May 16, 2000.

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MCAR, Inc. (6-CA-30300; 333 NLRB No. 134) Hermitage, PA April 24, 2001. 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 bargain in good faith with AFSCME District Council 85 as the exclusive bargaining representative of the employees in the bargaining unit, as clarified by the Board in an earlier proceeding, Case 6-UC-397, to include the position of production technician. The judge concluded that the Board's holding in Case 6-UC-397 was res judicata to the Board's jurisdiction over the Respondent. In the unit clarification proceeding, Member Hurtgen dissented from the Board's denial of review of the Regional Director's holding that the Board should assert jurisdiction. He agreed, however, that nothing new has been presented in this case and accordingly, for institutional reasons, he joined in the assertion of jurisdiction. [HTML] [PDF]

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by AFSCME District Council 85; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Youngstown on Dec. 7, 1999. Adm. Law Judge Martin J. Linsky issued his decision Jan. 13, 2000.

* * *

Electrical Workers IUE Local 221 (Kidder, Inc.) (1-CB-9338; 333 NLRB No. 138) Agawam, MA April 27, 2001. The administrative law judge found, with Board approval, that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by demanding that the Employer interpret the parties' contractual superseniority clause to accord the Respondent Union officials superseniority for terms and conditions of employment that are not limited to layoff and recall and are not otherwise required to further the effective administration of the collective-bargaining agreement; and that the Respondent further violated the Act by demanding arbitration of the matter. The Board denied the Employer's cross-exceptions to the judge's failure to order the Respondent to reimburse it for costs and fees it incurred as a result of the Respondent's arbitration demand. [HTML] [PDF]

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by Kidder, Inc.; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Springfield on Aug. 3, 1999. Adm. Law Judge Richard H. Beddow, Jr. issued his decision Sept. 30, 1999.

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America Piles, Inc., Agostino Quality Carpentry, Inc., Kenney Drapery Associates Inc., Stone Systems Inc. d/b/a Century Wood Floors and Van Tag Corp. (2-CA-31033, et al.; 333 NLRB No. 123) Brooklyn and Yonkers, NY and Fairfield, NJ April 25, 2001. The Board adopted the administrative law judge's findings that Respondents American Piles, Stone Systems, and Van Tag violated Section 8(a)(5) and (1) of the Act by refusing to execute and abide by collective-bargaining agreements reached by the Carpenters and the Respondents. [HTML] [PDF]

Respondent Agostino signed a full and complete interim compliance agreement with the Union on April 11, 1996, and Respondent Kenney signed a full and complete "Compliance Agreement for Newly Organized Employer" on September 9, 1996. Contrary to the judge, the Board held that Agostino and Kenney violated the Act by refusing to abide by and execute the 1996-2001 collective-bargaining agreements with the Union and reversed the judge's dismissal of the Section 8(a)(5) and (1) allegations against them. The Board noted that "[b]oth [compliance] agreements clearly and unequivocally bound these two Respondents to the terms and conditions of the new 1996-2001 collective-bargaining agreements and obligated them to execute the agreements on request." City Electric, 288 NLRB 443, 444 (1988). Agostino and Kenney asserted that they did not intend to sign anything more than one-job, project-only agreements and believed that they had in fact signed such limited agreements.

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charges filed by Carpenters District Council of New York City and Vicinity; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, Nov. 16 and 17, 1998. Adm. Law Judge Steven Fish issued his decision July 26, 1999.

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Lincoln Park Subacute and Rehab Center, Inc., One, and Lincoln Park Subacute and Rehab Center, Inc., Two (22-CA-22284, et al.; 333 NLRB No. 136) Lincoln Park, NJ April 26, 2001. The Board affirmed the administrative law judge's conclusion that the Respondent's interrogation of employee David Aldorando was unlawful and in violation of the Act. It remanded to the judge for further consideration, the issue of whether the Respondent violated Section 8(a)(3) and (1) of the Act when it warned and discharged Aldorando and when it discharged employee Dorothy Baines. The Board also remanded Case 22-RC-11416 because the judge, in sustaining the Union's election objections and setting aside the election results, relied on the unfair labor practice findings that are subject to the remand. The Board noted that no exceptions were taken to the judge's dismissal of several Section 8(a)(1) allegations and to the discharge of Christine Monroy. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by AFSCME District 1199J; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Newark, March 22, 23 and May 5, 1999. Adm. Law Judge Raymond P. Green issued his decision July 30, 1999.

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Micrometl Corporation (25-CA-24885, et al.; 333 NLRB No. 135) Indianapolis, IN April 26, 2001. On the recommendation of the administrative law judge, the Board dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act when it informed an employee it would not hire applicants who engaged in union activity, when it refused to hire or consider for hire 42 applicants for employment because of their union affiliation, when it discharged employee Ryan O. Witham, and when it granted each of its employees a bonus of $10. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charges filed by Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Indianapolis, March 18-20, 1998. Adm. Law Judge Martin J. Linsky issued his decision June 19, 1998.

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Teamsters Local 166 (Dyncorp Support Services Operations) (31-CB-8333, et al.; 333 NLRB No. 141) Ft. Irwin, CA April 26, 2001. The Board, in the earlier proceeding, 327 NLRB 950 (1999), found that the Respondent violated Section 8(b)(1)(A) of the Act by failing to inform Charging Party John Burnham of his rights under Communications Workers v. Beck, 487 U.S. 735 (1988), before seeking dues and fees from him under the union-security clause, by failing to provide the notice to the objecting Charging Parties required under California Saw & Knife Works, 320 NLRB 224 (1995), while continuing to collect dues and fees from them, and by failing to provide Nadine Penrod a copy of the 1991 statement of expenses. The Board did not find unlawful the Respondent's failure to inform Burnham of the percentage of union funds that were spent on nonrepresentational activities during the previous year, and thus, the percentage by which dues and fees would be reduced for objectors. It also found that the information belatedly given Charging Parties Clement Wierzbeck and Robert Penrod was adequate. [HTML] [PDF]

On February 22, 2000, the U.S. Court of Appeals for the District of Columbia Circuit granted the Charging Parties' petition for review and held, contrary to the Board, that the Respondent was required to inform new employees and "financial core" payors such as Burnham, of the percentage reduction in dues and fees for Beck objectors. The court also held that Respondent was required to inform the Charging Parties of the identities of its affiliates and how the affiliates used the funds paid to them. The case was remanded to the Board for proceedings consistent with the court's opinion.

In addition to the violations already found, the Board determined that the Respondent violated Section 8(b)(1)(A) of the Act by failing to provide John Penrod, Nadine Penrod, and Wierzbicki with adequate information concerning its expenditures and those of its affiliates with which it shared money from dues and fees, and by failing to inform Burnham in a timely fashion of the percentage reduction in dues and fees for Beck objectors.

(Members Liebman, Hurtgen and Walsh participated.)

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Orland Park Motor Cars, Inc., d/b/a Mercedes Benz of Orland Park (13-CA-38061, 38185; 333 NLRB No. 127) Orland Park, IL April 20, 2001. Agreeing with the administrative law judge, the Board found that a Gissel bargaining order in this category II case (less pervasive misconduct which nonetheless still has the tendency to undermine majority strength and impede the election processes) is necessary to remedy the Respondent's unfair labor practices. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Board examined the extensiveness of the Respondent's misconduct to determine the possibility of erasing its coercive effect and ensuring a fair election by the use of traditional remedies. The employees' wishes as expressed by a card majority would, on balance, be better protected by a bargaining order, it decided. [HTML] [PDF]

The Respondent's unfair labor practices included "hallmark" violations that began within days of the Union's distribution of authorization cards to employees and involved high-ranking officials. The Respondent threatened to discharge employees who started the Union's organizing campaign, subsequently discharged the leading union advocate, and discharged another employee for returning to the employee strike against the Respondent after previously deciding to cross the picket line. Its other serious and pervasive unfair labor practices included announcing that its consideration of improvements to the employees' benefits plan had ceased because of the Union's organizing campaign, threatening employees that they would be discharged for engaging in a strike, and refusing to allow unfair labor practice strikers to return to work upon their unconditional offers to return to work.

The Board found that the concerns of some courts in denying enforcement of Gissel bargaining orders are not present here, i.e., the passage of time between the Gissel order and the unfair labor practices or an intervening turnover of employees and management.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Teamsters Local 731; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Chicago, Jan. 3-7, 2000. Adm. Law Judge William J. Pannier III issued his decision May 12, 2000.

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Con-Way Central Express, a Division of Con-Way Transportation Services (17-CA-18478; 333 NLRB No. 128) Kansas City, MO April 20, 2001. Chairman Truesdale and Member Walsh, with Member Hurtgen dissenting, affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by disparately enforcing its policy concerning the use of company bulletin boards but, they found, contrary to the judge, that the Respondent further violated Section 8(a)(1) when Respondent's general manager, Jeff Vukovich, interrogated employee Jim Affolter regarding his union activities. [HTML] [PDF]

In March 1996, Affolter posted an announcement about a union meeting on a company bulletin board. Vukovich, after being informed of the notice by another employee, removed it. He then approached Affolter and asked who had posted the notice. When Affolter responded that he had posted it, Vukovich stated that the board was for company notices only. Vukovich testified that, on at least one other occasion, he had seen a notice about the sale of personal items by an employee posted a bulletin board and that he should have removed it, but he had not done so.

The judge found no evidence that Vukovich's questioning of Affolter was coercive or that Affolter was intimidated. The majority noted however that the absence of specific evidence that Affolter was personally intimidated by the questioning does not preclude the finding of a violation. The issue is whether, under all the circumstances, the conduct reasonably tends to restrain, coerce, or interfere with employees' rights guaranteed under the Act, it noted, finding that Vukovich's questioning of Affolter would tend to have a coercive effect. Unlike the judge, the majority concluded that the interrogation is inseparable from Vukovich's unlawful disparate enforcement of the company bulletin board policy.

Dissenting Member Hurtgen wrote: "Even assuming arguendo that the notice of sale and the notice of a union meeting are comparable, I would not conclude that a single instance of nonenforcement means that the Respondent has effectively, and everlastingly, lost control of its own bulletin boards. Thus, I would permit Respondent to continue to enforce its lawful rule." As he did not agree that there is a bulletin board violation, he did not agree that there is an interrogation violation.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Teamsters Local 41; complaint alleged violation of Section 8(a)(1). Hearing at Overland Park, Oct. 27-30, 1998. Adm. Law Judge Steven M. Charno issued his decision Nov. 12, 1998.

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WLVI-TV, Inc. (1-CA-37457; 333 NLRB No. 131) Boston, MA April 20, 2001. The Board affirmed the administrative law judge's decision that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish Electrical Workers IBEW Local 1228 in a timely manner the following information requested by the Union: the names of the bargaining unit employees who have received safety training to operate vehicles with retractable microwave antennas used to transmit video signals back to the television station (ENG or SNG vehicles); the dates when such training took place; the names and qualification, if any, of the people who did the training; and any written or other materials used by the trainers for such training and/or any materials handed out to the employees. [HTML] [PDF]

The Board modified the judge's recommended Order to require the Respondent to provide the Union with the requested information without the necessity of making a new request. See I&F Corp., 322 NLRB 1037 fn. 1 (1997).

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Electrical Workers IBEW Local 1228; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston on May 2, 2000. Adm. Law Judge Raymond P. Green issued his decision July 12, 2000.

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GPS Terminal Services (4-CA-24834; 333 NLRB No. 121) Harrisburg, PA April 16, 2001. In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Glenn Hess and Mark Mallin for refusing to cross a picket line established and maintained by Teamsters Local 776 from April 12 to 15, 1996, in protest against the Respondent's refusal to recognize the Union after taking over freight handling operations at Conrail's Harrisburg rail yard from Pacific Rail and for its refusal to reinstate them. The Board also found that the Respondent was not in violation of the Act by its failure to hire former Pacific Rail employees Frank H. Stemler IV, Barry Mutzabaugh, and Jerry Evans. [HTML] [PDF]

The Board held meritorious the General Counsel's exception to the judge's decision to "sua sponte" amend the complaint. In agreement with the General Counsel's assertion that "the judge erred in amending the complaint," the Board said:

Section 3(d) of the Act provides that the General Counsel "shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under Section 10, and in respect of the prosecution of such complaints before the Board." The General Counsel's authority under Section 3(d) includes the unreviewable discretion to determine whether to dismiss an unfair labor practice charge, to issue a complaint, or to enter into a prehearing informal settlement agreement. . . . Once the hearing has commenced, and until the case has been transferred to the Board, the complaint may only be amended "upon motion, by the administrative law judge designated to conduct the hearing." . . . "[t]he authority of the Administrative Law Judge to amend the complaint . . . is clearly limited to those instances where the amendment is sought or consented to by the General Counsel, or where evidence has been received into the record without objection."

Member Walsh, while agreeing that the Respondent did not violate the Act when it discharged employee Floyd Wertz, disagreed with the judge's finding that the General Counsel failed to establish the elements of animus and knowledge. In his view, these elements were established by, in part, Supervisor Dale Baucum's angry comment to Wertz the night before Wertz' discharge that the Respondent was not going to go union, the subsequent discharge of Hess and Mallin, and the timing of the discharge shortly after Baucum's outburst. Member Walsh said that the General Counsel has met his burden of establishing that Wertz' union activities were a motivating factor in the Respondent's decision to discharge him but in light of the judge's decision to "credit [assistant manager] Severini's reasons for discharging" Wertz, he found that the Respondent has shown that it would have discharged Wertz even in the absence of union activity.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Teamsters Local 776; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, June 9 and 10, 1998. Adm. Law Judge Earl E. Shamwell Jr. issued his decision Jan. 7, 1999.

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Alley Drywall, Inc. (13-RC-20531; 333 NLRB No. 132) Oswego, IL April 17, 2001. Agreeing with the Regional Director that the petitioned-for unit of all plasterers was appropriate, the Board denied the request for review filed by the Intervenors, International Union of Bricklayers & Allied Craftworkers, Locals 56 and 74. The Regional Director, in his decision and direction of election, determined that the unit sought by the Petitioner (Operative Plasterers and Cement Masons Local 5) was not limited to that previously covered under its 8(f) agreement with the Employer and that the unit may appropriately include plasterers working in DuPage County, Illinois. [HTML] [PDF]

The Petitioner contended that the unit it sought to represent is an appropriate single employer unit in which the employees share a sufficient community of interests. The Intervenors contended that the unit was inappropriate because it was broader than that which the Petitioner has historically represented through its 8(f) agreements with the Employer and that the history of collective bargaining under Section 8(f) of the Act is controlling as to the scope of the unit under Board precedent. Based on the language in John Deklewa & Sons, 282 NLRB 1373, 1377 (1987), the Intervenors asserted that the scope of the petitioned-for unit must be the same as that in the 8(f) agreement between the Petitioner and the Employer:

[S]uch agreements [8f] will not bar the processing of valid petitions filed pursuant to Section 9(c) and Section 9(e) . . . in processing such petitions, the appropriate unit normally will be the single employer's employees covered by the agreement. . . .

The Employer has had collective-bargaining relationships with the Petitioner and the Intervenors based on their separate geographical jurisdictions. Due to agreements between the International Unions of the Petitioner and the Intervenors establishing certain geographical limitations on each other where there was overlapping coverage of job classifications, the 8(f) collective-bargaining agreements between the Petitioner and the Employer were not applicable to plastering work performed by the Employer in DuPage County. The work in DuPage County was performed by Employer's employees under the jurisdiction of the Intervenors.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

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Teamsters Local 251 (Ryder Student Transportation) (1-CB-9273, et al.; 333 NLRB No. 129) Providence, RI April 18, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(b)(1)(A) of the Act by attempting to collect union dues from employees Francisco Santana, Alicia Ramos, and Ann Greenwood pursuant to a contractual union-security clause without notifying them of their rights under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be dues-paying nonmembers and of the rights of nonmembers under Communications Workers v. Beck, 487 U.S. 735 (1988) to object to the expenditure of their dues on nonrepresentational activities and to obtain a commensurate reduction in dues and fees. The Board also upheld the judge in finding that the Respondent violated Section 8(b)(1)(A) and 8(b)(2) by asking the Employer to discharge those employees, and by causing it to discharge Santana and to suspend Ramos and Greenwood, for failing to pay dues pursuant to the union-security clause. [HTML] [PDF]

Contrary to the judge, the Board held that the Respondent violated Section 8(b)(1)(A) and 8(b)(2) by pursuing to arbitration a grievance concerning the Employer's failure to discharge Ramos and Greenwood as it had requested.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charges filed by Ann Greenwood, Ann Ramos and Francisco Santana, Individuals; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Boston, MA, Feb. 11 and 12, 1999. Adm. Law Judge Arthur J. Amchan issued his decision April 28, 1999.

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Thomas H. Roberts, d/b/a AC Electric and its alter ego Boyce Enterprises, Inc. and its successor ECM Enterprises, Inc., d/b/a Ace Electric (3-CA-18504; 333 NLRB No. 120) Plattsburg, NY April 17, 2001. The Board, in this backpay proceeding, ordered that the Respondents, Thomas H. Roberts, d/b/a AC Electric and its alter ego Boyce Enterprises, with their successor, Respondent ECM Enterprises d/b/a Ace Electric, make whole discriminatees Randy Bashaw and Raymond Rothamel for any loss of pay and benefits suffered by them for the period November 4, 1993 to May 1, 1996. The Board also ordered that backpay and loss of benefits shall continue to accrue for, and on behalf of Bashaw and Rothamel until such time as Respondent ECM makes a valid offer of reinstatement to them. [HTML] [PDF]

The Board agreed with the administrative law judge's analysis of the interrelationships among the three Respondents but disagreed with his division of their liability for unfair labor practices committed by one of them. The Board also agreed that Respondents Boyce Enterprises, Inc. was AC's alter ego and/or AC's successor within the meaning of Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), because Boyce took over and continued AC's operations with knowledge of AC's unfair labor practices.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Adm. Law Judge Robert T. Snyder issued his supplemental decision March 30, 1998.

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Contech Division, SPX Corporation (7-CA-39049, et al.; 333 NLRB No. 94) Dowagiac, MI April 9, 2001. The Board affirmed the administrative law judge's finding that by suspending operations at Plant #3 and laying off employees without giving the Union prior notice and an opportunity to bargain over such decisions or over the effects of those decisions on unit employees, and by refusing to provide the Union with relevant and necessary information it requested on December 20, 1996 and February 14, 1997, the Respondent violated Section 8(a)(5) and (1) of the Act. No exceptions were taken to the judge's finding that the Respondent did not violate Section 8(a)(3) and (1) when it failed to grant employee Shirley Stroud a 50-cent wage increase. [HTML] [PDF]

The Respondent argued that under First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), and Dubuque Packing Co., 303 NLRB 386 (1991), it had no obligation in decision bargaining with the Union. In agreement with the judge, the Board rejected the Respondent's argument that this allegation must be dismissed.

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charges filed by Automobile Workers; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing at Dowagiac, MI, Aug. 11-13, 1997. Adm. Law Judge George Alemán issued his decision July 31, 1998.

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Pactiv Corporation (9-CA-37226, 37663; 333 NLRB No. 103) Wurtland, KY April 9, 2001. The Board majority of Chairman Truesdale and Member Hurtgen approved a settlement stipulation and ordered that the Respondent take certain affirmative action, including: (a) provide the information requested in the Union's April 26 and May 15, 2000 letters to Respondent, excluding item #5 in the April 26 letter; (b) restore its light duty policy to permit injured employees to work available light duty assignments; and (c) make whole unit employees for any loss of pay they may have suffered by reason of not being given light duty work.

In dissent, Member Walsh noted that "there appears to be an inadvertent error in the stipulated Order because, unlike the notice, it fails to provide that the Respondent will notify and, upon request, bargain with the Union before making changes in the light duty policy." He stated that such a bargaining provision is necessary to remedy the specific 8(a)(5) violation alleged. Alexander Linn Hospital Assn., 244 NLRB 387 fn. 3(1979). Member Walsh would modify the Order so that it conforms to the notice and, consistent with the approach used in K & W Electric, 327 NLRB 70 (1998), give the parties an opportunity to opt out of the settlement in the event that there is an objection to the modification.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

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Yuengling Brewing Company of Tampa (12-RC-8469, 8470; 333 NLRB No. 104) Tampa, FL April 9, 2001. The Board reversed the Regional Director's finding that a separate unit of maintenance employees sought by Petitioner Operating Engineers Local 925 is not an appropriate unit for bargaining. The Regional Director found that a unit composed of all production and maintenance employees was the only appropriate unit for bargaining and dismissed the petition in Case 12-RC-8469. Teamsters Local 79 sought to represent a separate production unit but because it was willing to proceed to an election in any unit found appropriate, the Regional Director directed an election in Case 12-RC-8470. [HTML] [PDF]

The Board noted that the bargaining history favors a finding that the petitioned-for maintenance unit constitutes a distinct and cohesive grouping of employees appropriate for collective-bargaining purposes. It wrote:

It is the Board's longstanding policy, set forth in American Cyanamid Co., 131 NLRB 909 (1961), to find petitioned-for separate maintenance department units appropriate when the facts of the case demonstrate the absence of a more comprehensive bargaining history and the maintenance employees have the requisite community of interest. In determining whether a sufficient community of interest exists, the Board examines such factors as mutuality of interests in wages, hours, and other working conditions; commonality of supervision; degree of skill and common functions; frequency of contract and interchange with other employees; and functional integration. Ore-Ida Foods, 313 NLRB 1016, 1019 (1994); Franklin Mint Corp., 254 NLRB 714, 716 (1981).

(Chairman Truesdale and Members Liebman and Walsh participated.)

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Associated Builders and Contractors, Golden Gate Chapter (32-CA-15647; 333 NLRB No. 116) Dublin, CA April 12, 2001. The Board granted the Respondent's and the Charging Parties' joint request to modify its prior decision and order (331 NLRB No. 5 (2000)) and vacated the remedy section of the order and the judge's decision requiring the Respondent and its employer-members to post the Board's notice to employees at their Northern California business offices. In the request to modify, the parties stated that if the Board modified its order and disavowed the portion of the judge's remedy requiring the posting by employer-members, the Respondent would fully comply with all other portions of the order. The General Counsel did not oppose the request. [HTML] [PDF]

The Respondent and certain of its employer-members argued that the order erroneously imposed an unprecedented notice-posting obligation on approximately 300 individual, separately-owned and operated employer-members who were not named in the charge or complaint and who were not found by the judge to be guilty of any wrongdoing.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Mcclain of Georgia, Inc. (10-CA-28231-3, et al.; 333 NLRB No. 111) Macon, GA April 11, 2001. In this backpay proceeding, the Board granted in part and denied in part, the General Counsel's motion for partial summary judgment as to certain allegations of the compliance specification and remanded the proceeding to the Regional Director to schedule a hearing limited to: determining whether discriminatees Lawrence Trice's, Charles Parker's, and James Weldon's backpay periods ended when, if ever, they became unable to perform the duties of their former positions due to illness or disability; resolving disputes pertaining to Trice's medical expenses; resolving the backpay allegations pertaining to discriminatee Aric Evans; and resolving disputes pertaining to interim earnings, interim expenses, and failure to mitigate. [HTML] [PDF]

In the earlier decision, 322 NLRB 367 (1996), enfd. 138 F. 3d 1418 (11th Cir. 1998), the Board ordered the Respondent to take certain affirmative action, including offering reinstatement to certain employees and making them whole for any loss of earnings suffered by reason of the Respondent's discrimination against them.

(Chairman Truesdale and Members Liebman and Walsh participated.)

General Counsel filed motion for summary judgment Aug. 4, 1999.

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Saia Motor Freight (16-RC-10184; 333 NLRB No. 117) Grand Prairie, TX April 11, 2001. Chairman Truesdale and Member Liebman, with Member Hurtgen dissenting in part, adopted the hearing officer's recommendation that the election of April 16, 17, and 18, 2000, in which the revised tally of ballots showed 170 votes for, and 179 against the Petitioner, with 7 challenges, must be set aside and a new election conducted. [HTML] [PDF]

The majority, in agreement with the hearing officer, found that the allegations in Petitioner's Objections 9 and 21 constituted objectionable conduct. These objections alleged that the Employer interfered with the election by refusing to permit employees believed to be supporters of Petitioner to attend meetings at which union representation was discussed and by enforcing and maintaining an invalid and unlawful no-solicitation rule. Chairman Truesdale and Member Liebman deemed it unnecessary to pass on the hearing officer's findings with regard to Objection 4, which Member Hurtgen addresses in his dissenting opinion.

Contrary to the hearing officer, Member Hurtgen did not find that the Employer engaged in objectionable conduct by maintaining and operating a video camera outside its premises during the union organizing campaign and would not rely on this conduct in setting aside the election. He said ". . . the video camera security system was installed and maintained for valid security reasons wholly unrelated to any union organizing campaign, and the fact that there was neither evidence nor claim that the system was used for any other purpose during the organizing campaign, the hearing officer found that the Employer's continued operation of the system during the critical period of objectionable."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Ziegler, Inc. (18-UC-336; 333 NLRB No. 114) Bloomington, MN April 12, 2001. The Board denied the Union's (Operating Engineers Local 49) request for review of the Regional Director's decision and order dismissing the unit clarification petition; granted the Employer-Petitioner's request for review; and concluded, contrary to the Regional Director, that the existing bargaining unit represented by the Union should be clarified to exclude the "parts and warehouse employees" at Ziergler's six branch facilities who have been historically excluded from the unit of service department employees at its nine facilities, and warehouse employees at two locations. Member Liebman dissented in part. [HTML] [PDF]

The Regional Director declined to clarify the unit as requested by the Employer-Petitioner, relying on Bethlehem Steel Corp., 329 NLRB No. 32 (1999), which held:

[w]here a position or classification has been historically excluded from or included in the unit, and there have not been recent, substantial changes that would call into question the placement of the employees in the unit, the Board generally will not entertain a petition to clarify the status of that position or classification, regardless of when in the bargaining cycle the petition is filed.

Chairman Truesdale noted that the Board indicated several exceptions to this general principle in Bethlehem Steel, including one in Williams Transportation Co., 233 NLRB 837, where the Board decided that processing of the employer's petition to confirm the historical exclusion of the disputed position was necessary to prevent the enforcement of the contradictory arbitration award. Although this case does not involve an arbitration award, he found Williams Transportation supported the processing of the petition since there is a pending grievance alleging that the parties' collective-bargaining agreement covered the disputed employees that ultimately could result in an incongruous arbitration award.

Member Hurtgen, concurring, agreed that Bethlehem Steel is distinguishable. He wrote separately to make clear his disagreement with Bethlehem Steel and to emphasize his disagreement with "the dissent's contention that the Board should withhold its processes, pending resort to collective bargaining."

Member Liebman, dissenting in part, would affirm the Regional Director's dismissal of the Employer-Petitioner's petition, finding that her colleagues deviated from established and proper unit clarification procedure. She found their reliance on Williams Transportation is misplaced because it created a limited exception to the procedure to dismiss petitions involving historically excluded employees-where there is an arbitral ruling that is clearly at odds with Board policy. Member Liebman stated: "No comparable award exists in this case that contravenes Board policy and would take effect if the Board were to follow its normal procedure and dismiss this unit clarification petition. In this context, the collective-bargaining process should be allowed to work."

(Chairman Truesdale and Members Hurtgen and Liebman participated.)

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Briar Crest Nursing Home (2-CA-30131, et al.; 333 NLRB No. 112) Ossining, NY April 12, 2001. Chairman Truesdale and Member Walsh held that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing the work schedules for certain employees without bargaining with 1199 National Health & Human Service Employees; and violated Section 8(a)(3) and (1) by eliminating work hours of Patrick Duncan because of his support for the Union, discharging economic striker Tessie Cherry because of a mistaken belief that she engaged in strike misconduct, and issuing a disciplinary warning to Terry Ransom because of her protected concerted activity. [HTML] [PDF]

Member Hurtgen, dissenting in part, would reverse the judge and dismiss allegations that the Respondent violated the Act by reducing Duncan's hours of work and discharging Cherry. He found Cherry engaged in misconduct which warranted her discharge and that the General Counsel failed to establish that Duncan's loss of hours was motivated by his union activities.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by 1199 National Health & Human Service Employees; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at New York, May 18-22, 1998. Adm. Law Judge Raymond P. Green issued his decision Aug. 28, 1998.

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Inn Credible Caterers, Ltd. (34-CA-8845; 333 NLRB No. 110) Bear Mountain, NY April 9, 2001. Agreeing with the administrative law judge, Chairman Truesdale and Member Liebman decided that an affirmative bargaining order is warranted to remedy the Respondent's unlawful refusal to recognize and bargain with Hotel Employees and Restaurant Employees Local 100. The judge found, and the majority agreed, that: the Respondent was a successor employer, the Union demanded recognition and bargaining, the Respondent was obligated to recognize the Union as of April 18, 1999 when a substantial and representative complement was reached, and the May 9, 1999 petition purportedly signed by a number of unit employees did not provide the Respondent with a good-faith doubt as to the Union's majority status. The majority wrote: [HTML] [PDF]

"Having found that the Respondent unlawfully refused to recognize and bargain with the Union as of April 18, the May 6 petition could not have formed the basis for good-faith doubt. Further, regardless of whether the Respondent had properly recognized the Union on April 18, the Respondent could not lawfully have withdrawn recognition on May 6 under an alternative ground. St. Elizabeth Manor, Inc., 329 NLRB No. 36 (1999)." The majority explained:

The effect of the Board's decision in St. Elizabeth Manor was to return to the principle expressed in Landmark International Trucks, 257 NLRB 1375 (1981), enf. denied 699 F.2d 815 (6th Cir. 1983), that a successor employer violates Sec. 8(a)(5) if it withdraws recognition before a reasonable period of time for bargaining has elapsed, whether that withdrawal is based on a good-faith doubt of the union's continuing majority status or evidence of actual loss of majority status. See St. Elizabeth Manor, supra, slip op. at 2. Accordingly, the contrary view, as expressed in Harley-Davidson Transportation Co., 273 NLRB 1531 (1985), is clearly no longer good law after St. Elizabeth Manor.

For the reasons set forth in the majority opinion in St. Elizabeth Manor, we reject our concurring colleague's criticisms of the successor bar doctrine, including his discussion of Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987).

Member Hurtgen, concurring, wrote separately to explain how this case illustrates the problem presented by St. Elizabeth, a representation case in which he dissented. He explained:

By rendering the May 6 petition a nullity, St. Elizabeth Manor would deprive unit employees from exercising their Section 7 freedom of choice and prevent them from exercising their rights to select a union representative or to have no union represent them. Moreover, St. Elizabeth Manor directly contravenes the rationale of Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 41 fn. 8 (1987). . . . Thus, under Fall River, employees who no longer want to be represented by the union may file a petition which the successor may consider grounds for a good-faith doubt. That employee right, pronounced by the Supreme Court, has been foreclosed by St. Elizabeth Manor. Thus, if the Respondent had recognized the Union as of April 18, I would have honored the Section 7 rights of the employees to choose nonrepresentation.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Hotel Employees and Restaurant Employees Local 100; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Goshen on Dec. 14, 1999. Adm. Law Judge Howard Edelman issued his decision April 17, 2000.

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McKenzie Engineering Co. (33-CA-12098; 333 NLRB No. 115) Fort Madison, IA April 10, 2001. The administrative law judge found, with Board approval, that the Respondent failed and refused to honor its 8(f) collective-bargaining agreement with the Northwest Illinois and Eastern Iowa District Council of Carpenters with respect to its work on the Crescent Railroad Bridge repair project in Mississippi, a violation of Section 8(a)(5) and (1) of the Act. The Board noted well-settled law that an employer may not repudiate an 8(f) agreement during its term. Also, when an employer consents to be bound by an area 8(f) agreement and its successor agreements, as the Respondent did in this case, the employer's contractual obligations continue, absent timely notification to terminate the agreement and to withdraw delegated bargaining authority. The Board found that the decision of the Eight Circuit court of appeals in Carpenters Fringe Benefit Funds of Illinois v. McKenzie Engineering, 217 F.3d 578 (8th Cir. 2000), which issued subsequent to the judge's decision and to which the Respondent has directed the Board's attention, does not compel a contrary result. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Northwest Illinois and Eastern Iowa District Council of Carpenters; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Davenport, Dec. 4-5, 1997. Adm. Law Judge William J. Pannier III issued his decision April 24, 1998.

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Laro Maintenance Corp. (2-CA-31249; 333 NLRB No. 118) New York, NY April 13, 2001. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its hiring policy with respect to standby employees without giving Service Employees Local 32B-32J sufficient time to bargain, the Board held in agreement with the administrative law judge. It did not pass on the General Counsel's request raised in cross-exceptions that the Board: (1) rule on whether the judge accurately characterized the provisions of a settlement agreement in Cases 2-CA-29598, et al. entered into by the General Counsel and the Respondent which resolved prior unfair labor practice charges involving the same parties; and (2) change the proposed remedy in this case to reflect that the Respondent's rescission of the unilateral change and its return to the status quo ante must be consistent with that settlement agreement. Those issues are left to compliance or other proceedings arising out of this case or in Cases 2-CA-29598, et al. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on April 19, 1999. Adm. Law Judge D. Barry Morris issued his decision July 8, 1999.

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St. Barnabas Hospital (2-CA-32373; 333 NLRB No. 119) Bronx, NY April 13, 2001. Affirming the administrative law judge's decision, the Board found that the General Counsel failed to make a prima facie showing sufficient to support the inference that union activity was a motivating factor in the Respondent's actions and dismissed the complaint allegations that the Respondent unlawfully discharged Jose Rivera, Michael Shaffer, and Rosa Cinquina because of their activities for the Security Personnel, Officers and Guards International. The judge credited the testimony of Respondent's director of security Nicholas Rodelli that the three employees were discharged after the Respondent discovered that they were using the same parking sticker, which is against the hospital's policy that each employee purchase a monthly parking sticker to use its lot. The Union in exceptions to the judge's credibility findings claimed disparate treatment-that management was aware that other employees were sharing parking stickers but did not discipline them. The Board found no basis for reversing the judge's findings. [HTML] [PDF]

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by Security Personnel, Officers and Guards International; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on May 10, 2000. Adm. Law Judge D. Barry Morris issued his decision Oct. 19, 2000.

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Electrical Workers (IBEW) Local 48 (Kingston Constructors, Inc.) (36-CB-2052; 333 NLRB No. 122) Portland, OR April 13, 2001. The Board granted the General Counsel's motion for clarification, modified its Order and Notice in the underlying decision (332 NLRB No. 161 (2000)), and ordered that the Respondent: (1) make available to the Board or its agents for examination and copying, all records, including any stored in electronic form, necessary to analyze the amounts of dues to be refunded under the terms of the Orders, and (2) sign and return to the Regional Director copies of the notice for posting by employers, if willing, who are signatory to the collective-bargaining agreement with the Respondent, at all places where notices to employees are customarily posted. The Board substituted an attached Notice to Employees and Members for the Notice to Employees, which issued on December 15, 2000. [HTML] [PDF]

In the earlier decision, the Board found that the Respondent violated Section 8(b)(1)(A) of the Act by threatening to have Charging Party Patrick Mulcahy and other employees discharged pursuant to the union-security provision of the Union's collective-bargaining agreement if they did not pay dues to support the Union's market recovery program (MRP) that were owing from their employment on projects covered by the Davis-Bacon Act, 40 U.S.C. Sec. 276a et seq. It ordered the Union to reimburse the affected employees for MRP dues they paid as a result of the unlawful threats.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

* * *

Matanuska Electric Association (19-CA-25303; 333 NLRB No. 130) Palmer, AK April 13, 2001. On a stipulated record, the Board dismissed the complaint, finding that the Respondent (MEA), a nonprofit electrical cooperative, did not violate Section 8(a)(1) of the Act by amending its bylaws to provide that a member of the local union that represents the Respondent's employees, as well as anyone who lives with and is financially interdependent with the union member, cannot become or remain a member of its board of directors. "[E]ven assuming MEA's amended bylaw restricts the Section 7 rights of employees, it does not violate the Act because it serves MEA's legitimate interest in ensuring that it has the undivided loyalty of those who direct its operations," the Board said. [HTML] [PDF]

The Board agreed with the Respondent that the members of its board of directors are its agents within the meaning of Section 2(13) of the Act. It noted that the board of directors is limited in number (seven), exercises control over the business affairs of MEA, and maintains considerable control over the labor relations of MEA by ratifying any collective-bargaining agreement tentatively reached by a negotiating team. Agreeing with the Respondent that its bylaw is a lawful means of ensuring the undivided loyalty of its agents, the Board wrote:

The bylaw does not prohibit all union members from serving on the board of directors. The bylaw only prohibits board members from holding membership in a union that is on the other side of the bargaining table from MEA. Similarly, MEA's barring from the board of directors those who live with and are financially interdependent with members of a union representing MEA's employees is a narrow provision implementing its legitimate interest in having as its agents only those persons who it trust to act with undivided loyalty.

The Board wrote in finding no merit to the Union's contention that the bylaw is not rationally related to the goal of preventing a conflict of interest because nonmembers can be on the Respondent's board of directors, even if they are represented by the Union: "Nonmembers, unlike members, are not subject to the Union's disciplinary control. Thus, they do not pose a risk that a person on the board of directors could be disciplined by the Union for acting contrary to the Union's wishes."

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Electrical Workers (IBEW) Local 1547; complaint alleged violation of Section 8(a)(1). Parties waived their right to a hearing before an administrative law judge.

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Plasterers Local 502 (Elliot Construction) (13-CD-599; 333 NLRB No. 96) Glen Ellyn, IL April 4, 2001. In this Section 10(k) proceeding, the Board determined that the Plasterers' and Cement Masons' Union; rather than the Carpenters, is entitled to perform the work in dispute based on the factors of collective-bargaining agreement, employer preference and past practice, area practice, relative skills, and economy and efficiency of operations. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Walsh participated.)

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Watkins Engineers & Constructors, Inc. (12-CA-18146; 333 NLRB No. 99) Jacksonville, FL April 4, 2001. Applying its decision in FES, 331 NLRB No. 20 (2000), the Board agreed with the administrative law judge's finding of a refusal-to-consider violation, but remanded to the judge the refusal-to-hire portion of the case (including, if necessary, reopening the record). The judge had found the Respondent did not violate Section 8(a)(3) and (1) of the Act by refusing to consider for hire, 24 union-affiliated applicants ("salts"). [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Boilermakers; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Jacksonville, Aug. 10-13, 1998. Adm. Law Judge George Carson II issued his decision Nov. 6, 1998.

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Food & Commercial Workers Local 367 (19-CC-1950; 333 NLRB No. 84) Tacoma, WA April 4, 2001. Affirming the administrative law judge, the Board majority of Chairman Truesdale and Member Hurtgen found the Respondent Union violated Section 8(b)(4)(ii)(B) of the Act by coercing and threatening Quality Food Centers, Inc. (QFC) by filing a grievance and demanding arbitration with an object of forcing it to cease doing business with Cinnabon, Inc. The Respondent failed to establish the defense of work preservation or right of control, it concluded. The majority found that the Respondent's conduct was directed at a neutral party, QFC, and was tactically calculated to achieve union objectives vis-à-vis Cinnabon and outside the Respondent's contractual relationship with QFC. [HTML] [PDF]

In a concurring opinion, Member Hurtgen emphasized that the work of the Cinnabon employees is non-unit work and not fairly claimable. In dissent, Member Liebman would dismiss the complaint. In view of the close connection between the work claimed by the Respondent and the work traditionally performed by the bargaining unit, she thought the Respondent should be permitted to test its claim before an arbitrator.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Cinnabon; complaint alleged violation of Section 8(b)(4)(ii)(B). Hearing at Seattle on June 26, 1997. Adm. Law Judge Frederick C. Herzog issued his decision March 11, 1998.

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Morgan's Holiday Markets (20-CA-23314, 25025; 333 NLRB No. 92) Chico, CA April 5, 2001. In this case, the Board clarified the standard set forth in Brown & Sharpe Mfg. Co. III, 321 NLRB No. 924 (1996), to determine whether the "materiality" element of the fraudulent concealment doctrine has been met. The Board adopts the following standard of materiality under which a charge may be reinstated if the addition of evidence fraudulently concealed would, as an objective matter, make the critical difference in determining whether or not there was reasonable cause to believe the Act was violated: [HTML] [PDF]

The new evidence would make a "critical difference" if it so significantly alters the total mix of information available that, for the first time, there is reasonable cause to believe that the Act has been violated. Under this objective "reasonable cause" standard our inquiry is twofold: 1) whether, based on the evidence before the General Counsel at the time of dismissal, there was no reasonable cause to believe that the Act had been violated, and 2) whether, based on the evidence before the General Counsel at the time of the reinstatement of the charge and issuance of complaint (including the fraudulently concealed evidence), there is reasonable cause to believe that the Act was violated. If we find that there was 'reasonable cause to believe' at the time of dismissal, then the concealed evidence, even if it strengthens the case, is simply incremental and does not significantly alter the total mix of information initially available to the General Counsel. Such evidence will not be treated as "material," and Section 10(b) will bar the complaint.

Applying this standard to the present alter ego case, the Board agreed with the administrative law judge's conclusion to dismiss the complaint which had reinstated a dismissed charge under the fraudulent concealment exception to Section 10(b) of the Act.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Food & Commercial Workers Local 588; complaint alleged violation Section 8(a)(1) and (5). Hearing held in San Francisco in 1995. Adm. Law Judge Mary Miller Cracraft issued her decision December 1, 1995.

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Electrical Workers IBEW Local 103 (Lucent Technologies, Inc.) (1-CD-1008, 1009; 333 NLRB No. 101) Shrewsbury, MA April 4, 2001. The Board determined that Lucent's employees represented by the Communications Workers of America and its Local 1290 rather than those represented by Electrical Workers IBEW Local 103 are entitled to perform the installation of the telecommunications systems, including but not limited to the delivery of the DC powerplant from the vendor, the installation of the supeerstructure, the installation of the DC powerplant, and the installation, turn up, and testing of the Lucent 5ESS switching equipment where the jurisdictions of Local 1290 and Local 103 coincide. In making its award, the Board relied on the factors of collective-bargaining agreements, employer preference and past practice, relative skills, and economy and efficiency of operations. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Dynatron/Bondo Corp. (10-CA-29735; 333 NLRB No. 90) Atlanta, GA April 3, 2001. The administrative law judge found, and the Board agreed, that the parties were unable to reach an agreement due in part to the Respondent's unremedied unfair labor practices, that the parties could not, and did not, reach a good-faith impasse, and that the Respondent violated Section 8(a)(5) and (1) of the Act by declaring impasse and implementing its final contract proposals by changing wages and group health insurance. The Respondent's unfair labor practices began shortly after the Union's certification in 1991 as the collective-bargaining representative of the Respondent's production and maintenance employees and continued during negotiations. The Board found "there is ample evidence that the Respondent's conduct made it harder for the parties to come to an agreement," applying Alwin Mfg. Co., 326 NLRB 646 (1988), enfd. 192 F.3d 133 (D.C. Cir. 1999), which held that only "serious unremedied unfair labor practices that affect negotiations will taint the asserted impasse." [HTML] [PDF]

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by UNITE; complaint alleged violation of Section 8(a)(1) and (5). Adm. Law Judge Keltner W. Locke issued his supplemental decision April 15, 1999.

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Oklahoma Fixture Co. (16-CA-16265; 333 NLRB No. 95) Tulsa, OK April 4, 2001. On a stipulated record, Members Liebman and Walsh held that Oklahoma Insulation Company (OIC) is the alter ego of Oklahoma Fixture Co. (OFC); and that the Respondents violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Carpenters District Council of North Central Texas by failing to provide the Union with information it requested concerning OFC's relationship to OIC, and failing to apply the terms and conditions of the 1975-1978 master agreement between the North Texas Contractors Association (NTCA) and the Union to OIC employees from March 1, 1993 to April 30, 1995. Member Hurtgen dissented. [HTML] [PDF]

At issue is whether the 8(f) relationship established by the Union's and OFC's 1975 "me-too" agreement survived the expiration of the 1975-1978 NTCA collective-bargaining agreement. The majority held that by entering into the "me-too" agreement with the Union, which was then in the process of negotiating a new master contract with NTCA, OFC voluntarily entered into a collective-bargaining relationship with the Union and agreed to abide by the existing 1973-1975 master agreement and then to accept all terms of the successor agreement which would result from the NTCA-Union negotiations, including an automatic renewal provision in the Duration Clause requiring written notice of termination. The majority wrote:

"[W]e necessarily disagree with the General Counsel's contention that OFC was bound to a series of successor master agreements negotiated by NTCA and the Union. . . . Rather, the language of the me-too agreement was similar to that appearing in the letters of assent in issue in Fortney & Weygandt and Wilson & Sons, which the Board construed as binding each signatory to automatic renewal of the original master agreement, not to the successor master agreement." Fortney & Weygandt, 298 NLRB 863 (1990) and Wilson & Son Heating, 302 NLRB 802 (1991), enf. Denid 971 F.2d 758 (D.C. Cir. 1992). Applying Pergament United Sales, 296 NLRB 333 (1989), enfd. 920 F.2d 130 (2d Cir. 1990), the majority held that OFC was bound to annual automatic renewals of the 1975-1978 master agreement even though the complaint allegations are not based on that theory.

Member Hurtgen disagreed that OFC was bound to annual renewals of the contract between the Union and NTCA, finding that the NTCA and the Union are the only parties contemplated by the duration clause and noting "even the General Counsel does not make this contention." When the Union gave timely notice to NTCA that it was terminating the 1975-1978 contract, that contract and OFC's contractual obligation ended on April 30, 1978, he reasoned. Member Hurtgen found Fortney & Weygandt is distinguishable and noted Wilson & Sons was denied enforcement on the relevant point. He did not reach the issue of whether OFC and OIC are alter egos and did not find that there was an "informational" Section 8(a)(5) violation because the premise for the violation--that OFC was bound to the NTCA contract and that OIC might be an alter ego of OFC and thus bound as well--is incorrect.

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by Carpenters District Council of North Central Texas; 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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Westchester Iron Works Corp. (2-CA-31494; 333 NLRB No. 102) Bronx, NY April 5, 2001. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Cesar Barillas and Juan Cabrera because of their union and protected, concerted activities; and violated Section 8(a)(1) in various respects, including threats, interrogation, warning and advising its employees to withdraw their prevailing wage complaint with the New York City Office of the Controller, and directing its employees to engage in physical violence towards Iron Workers Local 361 representatives. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Juan Cabrera, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, March 1-2, 10 and April 8, 1999. Adm. Law Judge Steven Davis issued his decision Oct. 13, 1999.

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Morgan's Holiday Markets (20-CA-25176; 333 NLRB No. 91) Cottonwood, CA April 5, 2001. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to make contributions for hours worked for the months of December 1992 and January 1993 on behalf of unit employees to various union trust funds administered by the Retail Clerks and Employers Benefit Plans of Northern California without the consent of Food and Commercial Workers Local 588. The Respondent claimed it had no obligation to make the contributions because the parties reached a good-faith impasse in October 1992 while bargaining for a successor contract to the parties' 1989-1992 agreement. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Food and Commercial Workers Local 588; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Francisco on Sept. 16, 1996. Adm. Law Judge Mary Miller Cracraft issued her decision April 4, 1997.

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Saia Motor Freight Line (16-CA-19981, et al.; 333 NLRB No. 87) Grand Prairie, TX April 4, 2001. Chairman Truesdale and Member Walsh affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by promulgating an overly broad no-solicitation/no distribution rule to discipline employee Steven Lucas; and violated Section 8(a)(3) and (1) by issuing a disciplinary warning to him for supporting Teamsters Local 745 and engaging in protected concerted activity. They found however that a Wright Line analysis is not appropriate, noting that the discipline itself constituted a violation of Section 8(a)(3) and (1) (it was imposed pursuant to the unlawful rule) and that the written warning notice makes clear that Lucas was being warned solely for "distributing union literature at the Jonesboro terminal." See Felix Industries, 331 NLRB No. 12 (2000) (Wright Line analysis inappropriate where conduct for which respondent claims to have discharged employee was protected). [HTML] [PDF]

Member Hurtgen, concurring, does not agree that disciplinary action, which is imposed pursuant to an unlawful rule, is necessarily unlawful. See the dissenting opinion in Miller's Discount Dept. Stores, 198 NLRB 281, 283 (1972). He noted however that the Respondent warned Lucas for soliciting and about distributing union literature, as distinguished from soliciting during working time and distributing literature in a work area; and that the Respondent did not know or care whether the solicitation was on working time or whether the distribution was in a work area. Member Hurtgen agreed that the Wright Line test is not appropriate with respect to Lucas. He noted his agreement with the principle in Felix Industries and his finding that the activity there was not protected.

The Board affirmed the judge's finding that the Respondent did not engage in unlawful surveillance and did not create the impression of surveillance of the employees' union activities when it photographed the Union's handbilling on August 26, 1999. No exceptions were filed to the judge's finding that the Respondent did not violate Section 8(a)(1) by threatening employees that it would close its Grand Prairie facility if the employees voted for the Union, or by interrogating Lucas about the union activities of other employees.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Teamsters Local 745; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Fort Worth on Feb. 15, 2000. Adm. Law Judge Keltner W. Locke issued his decision March 17, 2000.

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Allegheny Ludlum Corporation (6-CA-26862; 333 NLRB No. 109) Pittsburgh, PA March 30, 2001. The Board held that the Respondent unlawfully polled its employees by soliciting their participation in a campaign videotape which the Respondent presented to employees prior to an election. Acting on a remand from the D.C. Circuit court of appeals, the Board revised its standards governing employee participation in an employer's campaign videotape. Allegheny Ludlum v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997), denying enf. in pert part to 320 NLRB 484 (1995). [HTML] [PDF]

The Respondent began filming for a videotape entitled "The 25th Hour" a few weeks before the election. The videotape presented the Respondent's position that employees should vote against union representation, includes segments in which unit employees discuss their satisfaction with the status quo at Allegheny Ludlum and their dissatisfaction with union representation at prior employers and state that they intend to vote "no" in the upcoming election. The videotape closes with images of unit employees at their workplaces, many of whom are shown waving at the camera, accompanied by an upbeat sound track with such lyrics as "Allegheny Ludlum is you and me" and statements by the narrator and employees as to why employees should vote against representation.

The Respondent hired an outside film crew to film employees at their workstations. Some employees were individually approached by the Respondent's manager of communication services and asked if they would consent to be filmed. Others were filmed without a prior explanation of the purpose of the filming. Upon hearing of the filming, the Union protested to the Respondent that it was unlawfully polling employees. The Respondent continued filming but distributed a notice to employees telling them that the Respondent was preparing a video for the election and that employees who did not want to appear in it should notify either the personnel office or the film crew. The Respondent accepted and maintained written lists of employees who asked to be excluded from the video.

The Board concluded that the Respondent's solicitation of employees to appear in the video was an unlawful poll. Reviewing past decisions in which employers distributed campaign paraphernalia to employees, the Board concluded that individual solicitations of employees coerce employees by placing them in the position of having to "make an observable choice that demonstrates their support for or rejection of the union." Barton Nelson, 318 NLRB 712 (1995). However, the Board also held that an employer may lawfully solicit employees to appear in a campaign video if each of the following requirements is satisfied:

The solicitation is in the form of a general announcement which discloses that the purpose of the filming is to use the employee's picture in a campaign video, and includes assurances that participation is voluntary, that nonparticipation will not result in reprisals, and that participation will not result in rewards or benefits.
Employees are not pressured into making the decision in the presence of a supervisor.
There is no other coercive conduct connected with the employer's announcement such as threats of reprisal or grants or promises of benefits to employees who participate in the video.
The employer has not created a coercive atmosphere by engaging in serious or pervasive unfair labor practices or other comparable coercive conduct.
The employer does not exceed the legitimate purpose of soliciting consent by seeking information concerning union matters or otherwise interfering with the statutory rights of employees.

A majority of the Board (Chairman Truesdale and Members Liebman and Walsh) further concluded that these principles apply regardless of whether an employee has previously identified himself as opposed to union representation. The majority reasoned that Section 7 necessarily protects an employee's right to choose the degree to which he or she wishes to express support for, or opposition to, union representation. See Gonzales Packing Co., 304 NLRB 805, 816 (1991) (supervisor violated Sec. 8(a)(1) by approaching employees, some of whom had previously voiced antiunion sentiments, and asking them to wear "Vote No" buttons). Accordingly, the majority held that "an employee, having once expressed opposition to union representation in some fashion, does not thereby forfeit the right to make for himself or herself, free of employer coercion, the entirely separate choice of whether to participate, or not to participate, in the employer's campaign by appearing in a campaign videotape."

Member Hurtgen, dissenting with respect to this issue, stated that in his view, direct solicitation of employees who are open opponents of the union is permissible. Because the employees, by their own conduct, openly demonstrated their opposition to the union, an employer solicitation does not place them in a position where they are pressured to "make an observable choice that demonstrates their support for or rejection of the union."

The Board also held that an employer may include an employee in a campaign video without his permission if the video does not indicate the employee's position on unionization. The Board stated that it was overruling its 1993 decision in Sony of America, 313 NLRB 420 (1993), to the extent it was inconsistent with these principles. However, the Board further stated that the employer cannot affirmatively mislead employees about the use of their image, the video must contain a disclaimer that it is not intended to reflect the views of the employees in it, and nothing in the video can contradict the disclaimer.

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

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APT Medical Transportation, et al. (31-CA-21879, 21880; 333 NLRB No. 98) Los Angeles, CA April 3, 2001. Chairman Truesdale and Member Hurtgen, with Member Liebman concurring, affirmed the administrative law judge's dismissal of the complaint allegations that the Respondents violated Section 8(a)(1) and (5) of the Act by failing and refusing to bargain in good faith with National Association of Government Employees (NAGE) and International Association of EMT's and Paramedics (IAEP). [HTML] [PDF]

Negotiation sessions between the parties began October 3, 1995 and continued intermittently through June 1996. Although tentative agreements were reached on a number of issues during these sessions, the stalemate over arbitration and union security continued. The Board agreed with the judge that there is no evidence that the Respondents were motivated by bad faith or an intent to frustrate agreement.

In concurring, Member Liebman wrote:

This case arises out of first contract bargaining. The complaint alleges bad-faith surface bargaining by the Employer. There is perhaps no more difficult problem in contemporary labor-management relations than achieving an initial agreement, and nothing more critical to establishing the new relations than the tone and conduct of the first negotiations. The Board should therefore exercise special care in monitoring the first contract bargaining process and closely scrutinize behavior which "reflects a cast of minds against reaching agreement." [NLRB v. Katz, 369 U.S. 736 (1962)] After careful review of this extremely close case, I have concluded, in agreement with my colleagues, that although there are factors indicating a lack of good faith, on balance, the evidence does not support a finding that the Respondents violated Section 8(a)(5).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by NAGE and IAEP; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles on Aug. 26 and 27, 1996. Adm. Law Judge Michael D. Stevenson issued his decision Feb. 14, 1997.

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Specialty Sands, Inc. (7-CA-42928(1), (2); 333 NLRB No. 93) Nunica, MI April 4, 2001. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by refusing to recall employees Richard W. Strange and Allan A. Bewalda after a seasonal layoff because they had concertedly requested improvements in their terms and conditions of employment, rejecting the Respondent's defense that its actions were motivated by exigencies of its business operations. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charges filed by Richard W. Strange and Allan A. Bewalda, individuals; complaint alleged violation of Section 8(a)(1). Hearing at Grand Rapids on Sept. 28, 2000. Adm.Law Judge Nancy M. Sherman issued her decision Jan. 12, 2001.

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Georgia Farm Bureau Mutual Insurance Companies (10-CA-31631; 333 NLRB No. 100) Covington, GA April 5, 2001. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by issuing warning letters to insurance sales agents W. Scott Knight, Alan Lord, Janet Frix, and Thomas Ewing; imposing onerous working conditions on the employees; reducing their earnings' potential; causing the termination of Frix and Knight; placing Lord and Ewing on a "work program;" and discharging Lord and Ewing. The judge concluded that the employees engaged in protected concerted activity when they reported to the Georgia State Insurance Commissioner's Office and the Respondent's claims department that their supervisor, Agency Manager Donia Smith, knowingly mishandled claims; and that the Respondent retaliated against the employees for reporting the misconduct and that the reprisal was motivated by the Respondent's animus toward the employees' protected concerted activity. [HTML] [PDF]

Agreeing with the judge that the Respondent's retaliatory conduct forced Frix and Knight to quit their employment, and that accordingly Frix and Knight were constructively discharged in violation of Section 8(a)(1), Chairman Truesdale and Member Liebman found both elements of Crystal Princeton Refining Co., 222 NLRB 1068 (1976), have been established. Under that two-prong test: 1) the burdens imposed upon the employee must cause, and be intended to cause, a change in the employee's working conditions so difficult or unpleasant as to force him to resign; and 2) it must be shown that those burdens were imposed because of the employees' protected activities.

Member Hurtgen, dissenting in part, agreed that the Respondent unlawfully made certain changes in the employment conditions of Frix and Knight because of their protected activity, but he disagreed that those changes were so intolerable as to have forced their resignations. He wrote in explaining why he would dismiss the complaint on the constructive discharge allegations: "In my view, all of the Respondent's actions fall far short of creating such intolerable conditions that the employees could not realistically remain in the Respondent's employ. The employees could have continued to work and filed a charge protesting the change in working conditions."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by W. Scott Knight and Alan Lord, individuals; complaint alleged violation of Section 8(a)(1). Hearing at Covington, Oct. 28-29, 1999. Adm. Law Judge Lawrence W. Cullen issued his decision Feb. 15, 2000.

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Levitz Furniture Company of the Pacific (20-CA-26596; 333 NLRB No. 105) South San Francisco, CA March 29, 2001. The Board held that an employer may unilaterally withdraw recognition from an incumbent union only on a showing that the union has actually lost the support of a majority of the bargaining unit employees. The Board overruled Celanese Corp., 95 NLRB 664 (1951), and other decisions that allowed employers to withdraw recognition merely by establishing an objectively based, good-faith reasonable doubt as to unions' majority support. [HTML] [PDF]

The Union and the Respondent were parties to a collective-bargaining agreement that expired on January 31, 1995. About December 1, 1994, the Respondent received a petition bearing what it concluded to be the signatures of a majority of the unit employees, stating that they no longer wished to be represented by the Union. On December 2, the Respondent informed the Union that it had objective evidence that the Union had lost majority support. The Respondent stated that it would continue to honor the contract until it expired but would withdraw recognition then. On December 14, the Union advised the Respondent that it had objective evidence, which it was prepared to demonstrate, that it had retained majority support. The Respondent, however, reiterated that it would no longer recognize the Union except as required by the contract. When the contract expired, the Respondent withdrew recognition, arguing that it had a good-faith reasonable doubt as to the Union's majority status.

The Board held that the good-faith reasonable doubt standard was fundamentally flawed in that it allowed employers to withdraw recognition from unions that had not, in fact, lost majority support. The Board found the standard inconsistent with the Act's fundamental policies of effectuating employees' free choice of bargaining representative and promoting stability in bargaining relationships. The Board therefore held that an employer that unilaterally withdraws recognition violates Section 8(a)(5) unless it can show that, at the time it withdrew recognition, the union had actually lost majority support.

Recognizing that Board elections are the preferred means for testing employees' support for unions, the Board eased the standard that employers must meet to obtain RM elections. Henceforth, an employer will be able to obtain an RM election by demonstrating an objectively based, good-faith reasonable uncertainty as to the union's majority status. Cf. U.S. Gypsum, 157 NLRB 652 (1966), in which the Board set forth the standard as requiring good-faith doubt or disbelief. In Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), the Supreme Court held that "doubt" can only mean "uncertainty," not disbelief, which is a more stringent standard. The Board found it appropriate to adopt the lower "uncertainty" standard as an incentive for employers to test unions' majority status in Board elections rather than by withdrawing recognition unilaterally.

Because employers had relied on the more lenient good-faith doubt standard, which had been in effect for some 50 years, the Board found it appropriate to apply the new standard for withdrawal of recognition only prospectively, i.e., not in pending cases. Applying the existing good-faith doubt (uncertainty) standard, the Board found that the Respondent's withdrawal of recognition was lawful. Thus, the Respondent had been presented with a petition indicating that the Union had lost majority support. Although the Respondent did not review the Union's claimed evidence to the contrary, the Board reasoned that, even if it had done so, the conflicting evidence could still have caused a good-faith uncertainty as to the Union's majority status.

Member Hurtgen, concurring, would have adhered to the good-faith uncertainty standard for withdrawing recognition. In his view, RM elections are an ineffective substitute for unilateral withdrawals because unions can prevent or delay elections by filing "blocking charges" and by filing objections and challenging ballots when elections are held. Member Hurtgen agreed with the majority, however, that the good-faith uncertainty standard is appropriate for RM elections. He also agreed with the majority's decision on the merits.

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

Charge filed by Food and Commercial Workers Local 101; 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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Interstate Warehousing of Ohio (9-RC-17485; 333 NLRB No. 83) Hamilton, OH March 27, 2001. Applying its decision in M.B. Sturgis, 331 NLRB No. 173, the Board majority of Chairman Truesdale and Member Walsh in the instant case found appropriate a bargaining unit of the Employer's solely-employed permanent employees and its jointly-employed temporary employees. In denying review of the Regional Director's unit finding, the Board agreed with the Regional Director that the temporary employees share a community of interest with the Employer's permanent employees to be included in the same unit. The majority cited these factors in reaching its conclusion: [HTML] [PDF]

The temporary employees work side-by-side and are largely interchangeable with the permanent employees. The temporary employees share the same job classifications as the Employer's permanent employees, perform common work functions, and share common work hours and supervision. The duration of their employment is indefinite. Further, the Employer does not dispute that since January 1, 2000, it has obtained all of its permanent employees by hiring from its temporary employees. Hence, the temporary employees are akin to probationary employees whom the Board includes in units with employees with more permanent tenure. Johnson's Auto Spring Service, 221 NLRB 809 (1975).

In dissent, Member Hurtgen expressed "substantial doubts" whether the Employer's own employees and the temporary employees share a community of interest, stating: "Where, as here, the suppliers (e.g., CBS) set the economic conditions of the temporary employees, and the user (Employer) sets the economic conditions of the regular employees, I have grave questions as to whether the two groups share a community of interests." Member Hurtgen also maintained that a unit of temporary and regular employees poses substantial bargaining difficulties.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

* * *

Aneco, Inc. (12-CA-15738; 333 NLRB No. 88) Orlando, FL March 29, 2001. The Board ordered that the Respondent pay $47,349.29 in lost earnings to Winson Cox for the full backpay period, as set forth in the compliance specification. The previous Board decision and orders in this case are reported at 325 NLRB 400 (1998) and 330 NLRB No. 152 (2000). The General Counsel admitted that, due to an inadequate job search by Cox, there is no backpay liability for 9 of the 20 calendar quarters encompassed in the gross backpay period between July 12, 1993 (the date of the Respondent's discriminatory refusal to hire Cox) and April 1, 1998 (the date Cox accepted the Respondent's remedial job offer and began working for it). [HTML] [PDF]

Contrary to the administrative law judge, the Board found that the Respondent failed to carry its burden of showing that Cox would only have worked 5 weeks in 1993, or that Cox would have ceased working at any subsequent point prior to April 1, 1998. The judge had found that the backpay period should run from July 12, 1993 to August 19, 1993 because 5 weeks after accepting the Respondent's remedial job offer in 1998, Cox, a paid union organizer, declared an unfair labor practice strike and ceased work in accordance with the Union's organizing strategy as set forth in its manual. Although he found that a determination of how long Cox would have worked if the Respondent had hired him in July 1993 was "somewhat speculative," the judge concluded that there was "no better indication" than Cox's actual length of service in 1998 and, thus, Cox would not have remained employed with the Respondent in 1993 for more than 5 weeks.

(Chairman Truesdale and Members Liebman and Walsh participated.)

Hearing at Orlando, March 20, 21, and 23, 2000. Adm. Law Judge Keltner W. Locke issued his decision April 28, 2000.

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Archer Daniels Midland Company (17-UC-230; 333 NLRB No. 81) North Kansas City, MO March 26, 2001. The Board denied Bakery Workers Local 16G's request for review of the Regional Director's decision to exclude employees employed at the Employer's soybean oil refinery located at 80 W. 18th Avenue from the existing bargaining unit of production and maintenance employees at the 200 W. 19th Avenue processing plant. It was the Union's position that the refinery employees must be accreted to the established processing plant unit. [HTML] [PDF]

The Union has represented the production and maintenance employees at the processing plant for over 30 years. Construction of the refinery began in April 1998 and was complete by January 2000. Operation of the refinery began in late January 2000.

The Regional Director found that the employees at the two facilities are subject to separate wage structures, terms and conditions of employment, work schedules, and work rules and, therefore, held that the employees at the two facilities are clearly separate bargaining units. In his view, the employees in the refinery are not an accretion to the existing bargaining unit of employees employed at the processing plant. He found, contrary to the Union, that "the Board has followed a restrictive policy in finding accretions to existing units because the Board seeks to insure that the right of employees to determine their own bargaining representatives is not foreclosed." United Parcel Service, 303 NLRB 326 (1991).

The issue raised in the request for review was whether the Regional Director erred in refusing to extend the holding of The Sun, 329 NLRB No. 74 (1999), to the facts of this case in which the unit was described as "all production and maintenance employees employed at the Company's plant located at 200 West 19th Avenue, North Kansas City, Missouri" and thereby improperly clarifying the unit to exclude the new refinery workers from the existing bargaining unit. The Board did not rely on the Regional Director statement that The Sun does not apply to this case because there is no transfer of bargaining unit work job classification outside of the bargaining unit. Rather, they relied on his finding that The Sun does not apply because the bargaining unit at issue is not functionally described.

(Chairman Truesdale and Members Liebman and Walsh participated.)

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Goad Company (14-CA-25782, 25793; 333 NLRB No. 82) Ellisville and Independence, MO March 26, 2001. The Board adopted the recommended order of the administrative law judge and dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to bargain with Steamfitters Local 420 unless Local 562 Business Agent Daniel P. Murphy ceased to act as the Union's agent. [HTML] [PDF]

On June 24, 1998, Plumbers General President Martin Maddaloni informed Company President Curtis Goad that effective July 1, 1998, jurisdiction over Local 420 in Philadelphia would be transferred to Local 562 in Philadelphia. Contending that the exclusive collective-bargaining representative continued to be Local 420, the Respondent refused to bargain with Local 562. The judge determined that even if Murphy had been a bona fide agent of Local 420, Board precedent establishes that, in the absence of unusual circumstances such as schism or defunctness, a local union's action in transferring its representational rights to another local constitutes a disclaimer of interest. Sisters of Mercy Health Corp. 277 NLRB 1353 (1985); Teamsters Local 595 (Sweetener Products), 268 NLRB 1106 (1984). The Board, in affirming the judge's decision, relied on his conclusion that Local 420 did not simply enlist the aid of an agent, but transferred its representational responsibilities to Local 562.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Plumbers and by Steamfitters Local 420; complaint alleged violation of Section 8(a)(1) and (5). Hearing at St. Louis, Jan. 27, 2000. Adm. Law Judge George Carson II issued his decision March 10, 2000.

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Innovative Communications Corp. and Virgin Islands Telephone Co. (VitelCo) and St. Croix Cable T.V., Inc. (24-CA-8472; 333 NLRB No. 86) St. Croix, VI March 23, 2001. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(5), (3), (2), and (1) of the Act by recognizing and bargaining with the Steelworkers as the exclusive representative of employees in the St. Croix Cable T.V., Inc. bargaining units; entering into and giving force and effect to a collective-bargaining agreement with the Steelworkers covering the bargaining units; unilaterally changing the unit employees' existing wages, benefits, and working conditions; encouraging membership in the Steelworkers and discouraging membership in the Our Virgin Island Labor Union (Charging Party); and giving unlawful assistance and support to the Steelworkers. [HTML] [PDF]

The Board modified the judge's decision and deleted the remedial order against the Steelworkers, finding it lacked jurisdiction over the Steelworkers for that purpose because no unfair labor practice charge was filed against the Steelworkers and the Steelworkers neither appeared nor participated in the proceedings. Finding merit in a General Counsel exception to the judge's failure to provide an adequate remedy for the 8(a)(5) unilateral change finding, the Board issued a status quo ante restoration order conditioned upon the affirmative desires of the unit employees as expressed through their representative since some of the unilateral changes benefited the employees and others are to their detriment.

The Steelworkers union has represented VitelCo employees under successive collective-bargaining agreements since 1972. This case arose in the context of a valid representation petition filed by the Charging Party on August 11, 1999 in Case 24-RC-8060 to represent the St. Croix Cable employees. The Charging Party unanimously won an uncontested Board election held on September 22, 1999. The Respondent thereafter continued to negotiate with the Steelworkers concerning the merger/consolidation of job functions at St. Croix Cable and other company subsidiaries, and ultimately recognized the Steelworkers as the exclusive bargaining representative of the St. Croix Cable employees. The judge found, and the Board agreed, that the St. Croix Cable bargaining unit employees are not an accretion to the VitelCo bargaining unit.

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Our Virgin Islands Labor Union; complaint alleged violation of Section 8(a)(1) and (5). Parties waived their right to a hearing before an administrative law judge. Adm. Law Judge C. Richard Miserendino issued his decision Sept. 29, 2000.

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SFOG Acquisition Company, LLC d/b/a Six Flags/White Water & American Adventures (10-RC-15155; 333 NLRB No. 78) Marietta, GA March 19, 2001. Chairman Truesdale and Member Walsh, with Member Hurtgen dissenting, affirmed the Regional Director's decision to include the "regular part-time/seasonal" maintenance employees in the unit found appropriate and to direct an immediate election. (The ballots for the December 1, 2000 election have been impounded.) [HTML] [PDF]

The Employer's Whitewater amusement park operates from May 6 through September 4; American Adventures operates year-round. The Carpenters sought to represent a unit of all maintenance employees employed at both parks which are connected. The maintenance staff consists of "benefited" employees who receive benefits such as 401(k) plans, flexible spending accounts, medical and dental plans, vacation, and sick leave pay; and "non-benefited" employees who do not receive such benefits. The Employer contended that "non-benefited" employees are seasonal employees who do not have any expectation of working beyond Whitewater's September 4, 2000 closing date and, therefore, should not be found eligible to vote. The Carpenters asserted that the "non-benefited" employees are in fact regular year-round employees who are eligible to vote. In its request for review, the Employer alleged that on November 6, 2000, it laid off the "non-benefited" employees, retaining the 2 full-time "benefited" employees.

The majority determined that the Employer intends to give preference in rehiring to its laid-off employees and that the "non-benefited" employees have a reasonable expectation of reemployment. Accordingly, the majority found them to be eligible voters. Sol-Jack Co., 286 NLRB 1173 (1987).

Member Hurtgen, in dissent, does not agree that the laid-off "non-benefited" employees had a reasonable expectation of recall and disagreed that they were eligible to vote. He stated: "The fact that a person is eligible for rehire is not the same as saying that a person will be preferred for rehire. The Employer herein was simply drawing a distinction between those who are not eligible (because their work was unsatisfactory), and those who would be eligible. As to the former group, they will not be rehired. As to the latter group, they may be rehired, i.e. they can apply and will be considered. However, so far as this record shows, they enjoy no preference."

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

* * *

Best Driver Resources (12-CA-20556; 333 NLRB No. 72) Hialeah, FL March 13, 2001. The Board found merit in the General Counsel's exception to the administrative law judge's failure to include a provision in the recommended Order requiring that the Respondent expunge from the personnel files of the named discriminatees any reference to the Respondent's unlawful denial of work to them. The General Counsel asserted that an expunction requirement was necessary to protect the discriminatees, who were employees on strike against their employer, from further discrimination by the Respondent, a supplier of temporary labor, or by other employers from whom the discriminatees are likely to seek employment. [HTML] [PDF]

The judge, affirmed by the Board, determined the Respondent had denied work to five employees because they assisted and supported the Union and engaged in concerted activities, and to discourage its employees from engaging in these activities.

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by Samuel L. Collins, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami on Sept. 19, 2000. Adm. Law Judge William N. Cates issued his decision Sept. 29, 2000.

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AP Automotive Systems (9-RC-17421; 333 NLRB No. 68) Troy, OH March 13, 2001. A Board majority of Chairman Truesdale and Member Liebman found that an election held on Aug. 2, 2000, in which 90 votes were for the Union, 100 against, with 8 challenges, must be set aside and a new election conducted. The majority found that the Employer's captive audience speech to employees two days before the election contained an objectionable threat of plant closure and a prediction of the futility of union representation. The statement at issue, read by the Employer's vice president, was that [HTML] [PDF]

[t]he union may give you a lot of promises but they have to come to Faurecia [the Employer's parent] to deliver them to you. However, Faurecia will not agree to anything that will hurt Troy plant's competitive position. We would rather see the plant closed by a strike now than slowly die because we agree to something that will eventually put this plant in financial trouble. Faurecia won't do it with a union and it won't do it without a union.

In dissent, Member Hurtgen disagreed that the Employer's statement constituted a threat to close the plant or a prediction that bargaining would be futile. He said "the Employer was simply saying that it would not agree to anything that will hurt the Troy plant's competitive position."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

* * *

Wilkie Metal Products, Inc. (7-CA-40357, et al.; 333 NLRB No. 73) Muskegon, MI March 15, 2001. The Board affirmed the administrative law judge's finding that the Respondent had engaged in certain unfair labor practices interfering with protected strike activity by its employees, including threatening comments by the owner, J.R. Boos. For example, by making the comment that if the employees went on strike, the situation "will be pretty ugly,'' the Board held that Boos was not merely expressing his opinion on strikes, but rather was unlawfully threatening unspecified retaliation if the employees exercised their statutory right to strike. (In a footnote, Member Hurtgen said he did not find the comment threatening or retaliatory.) [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Machinists Local 670, Lodge 67; complaint alleged violation of Section 8(a)(1),(3),(4), and (5). Hearing at Grand Rapids, Nov. 18-20 and 23-25, 1998. Adm. Law Judge Marion C. Ladwig issued his decision April 21, 1999.

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Cleveland Indians Baseball Company (8-UD-287; 333 NLRB No. 70) Cleveland, OH March 12, 2001. Contrary to the Regional Director's recommendation to sustain the individual Petitioner's objections alleging that employees did not have sufficient notice of the election, the Board overruled the objections and certified that a majority of the employees eligible to vote did not vote to withdraw the authority of Ticket Takers, Ushers and Police Union Local 85, SEIU to require, under its agreement with the Employer, that employees make lawful payments to that labor organization in order to retain their jobs in conformity with Section 8(a)(3) of the Act, as amended. [HTML] [PDF]

The Employer posted Notices of Election on August 8, 2000 in the employee breakroom near the time clock where unit employees (ticket takers and ushers at Jacobs Field in Cleveland, Ohio) check-in before each shift. The employees were not scheduled to work from August 10 to August 17, 2000 while the Cleveland Indians were on an extended road trip and the deauthorization election was held August 18, 2000.

The Regional Director found the Employer failed to comply with Section 102.30 of the Board's Rules and Regulations, which requires that Notices of Election must be posted for at least 3-full working days before the election. Section 103.20(b) provides that "working day" means an entire 24-hour period excluding Saturdays, Sundays, and holidays. The Regional Director concluded the days encompassed by the road trip did not constitute "working days" since unit employees were not scheduled to work during that period.

The Board wrote in disagreeing with the Regional Director and finding that the Employer complied with its rule for notifying the employees of the election because the notice was posted for 10 days, including 7 working days prior to the election: "The Board does not define 'working day' depending on the individual circumstances of a particular employer or industry or on the working schedules of individual employees, but rather consistently adheres to the precise and literal definition in the Board's Rules and Regulations."

The Board also found that the Petitioner's claim of notice deficiency is undermined by the fact that he signed a stipulation agreeing to the date and other terms and conditions of the election and raised no objection based on employees' work schedules. "Here, the election was held pursuant to the stipulated agreement and there is no evidence on the record before us that unit employees were prevented from voting," it said. Member Hurtgen did not rely on this portion of the decision, noting that the parties did not agree as to when posting would begin, that the stipulation was signed on August 2, and that the posting could have begun on August 3, and if so, would have been completed before the road trip began on August 10.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

* * *

Avondale Industries, Inc. (15-CA-14551, et al.; 333 NLRB No. 74) Avondale, LA March 15, 2001. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(3) and (1) of the Act by warning, suspending, and discharging employees because of their union activities; and violated Section 8(a)(1) by restricting employees from attending a public event because of their union activities and coercively interrogating an employee concerning the union activities of his fellow employees. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by New Orleans Metal Trades Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New Orleans, May 22-25 and June 19-22, 2000. Adm. Law Judge George Carson II issued his decision Nov. 7, 2000.

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Madison Square Garden (34-RC-1812; 333 NLRB No. 77) New York, NY March 15, 2001. The Board denied the Employer's request for review of the Regional Director's decision that 12 of the Employer's 13 disputed employees are guards within the meaning of Section 9(b)(3) of the Act, agreeing that their functions designed to enhance security are sufficient to establish that they are statutory guards. Neither party sought review of the Regional Director's finding that Juan Ortiz is a statutory supervisor and the Board found it unnecessary to reach Ortiz' guard status since he is a statutory supervisor. Member Liebman dissented in part. Contrary to his colleagues, Member Hurtgen would grant review on the supervisory issue, but limited solely to the disputed supervisors' authority to impose discipline. [HTML] [PDF]

The Board previously granted review of the Regional Director's finding that the 13 employees should be excluded from the petitioned-for unit because 11 of them were statutory guards and 2 employees, Juan Ortiz and Skip Ward, were statutory supervisors; and remanded the proceeding to him to determine the supervisory status of all 13 employees.

Member Liebman found that the "supervisors" are not statutory guards, but instead that they are like the receptionists in Wolverine Dispatch, Inc., 321 NLRB 796 (1996), and the doorpersons and elevator operators in 55 Liberty Owners Corp., 318 NLRB 308 (1995)-all of whom the Board found not to be statutory guards. She noted that the "supervisors" are not armed and do not wear traditional guard uniforms, that there was no evidence that they receive any special training in security matters, and that the "supervisor" requests the assistance of a police officer if an issue with a patron escalates to the point that the "supervisor" deems it necessary to reject or arrest a patron. Member Liebman said the Board "should reexamine its law with respect to statutory guards and acknowledge that it has erroneously expanded its interpretation of Section 9(b)(3). I decline to compound this error by expanding the definition further in this case."

Chairman Truesdale and Member Hurtgen wrote in response:

Our dissenting colleague concedes that to adopt her position would require reversing longstanding Board precedent. . . . We do not agree that these cases 'unjustifiably expanded' the definition of a guard under Section 9(b)(3), and we thus see no need to 'reexamine' Board law in this area. Because of this, and because of values inherent in the doctrine of stare decisis, we would not reverse precedent. Finally, we do not believe that precedent is being expanded in this case.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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DLC Corp. d/b/a FleetBoston Pavilion (1-RC-21210; 333 NLRB No. 79) Boston, MA March 16, 2001. The Board certified the Theatrical Stage Employees International, winner by a 29-0 vote, as the exclusive collective-bargaining representative of all on-call stage hands, stage electricians, stage carpenters, dimmer board persons, stage riggers, property persons, loaders, and unloaders, spotlight operators, cue persons, and sound persons employed by the Employer at its FleetBoston Pavilion (Pavilion) in Boston, Massachusetts. [HTML] [PDF]

The Board affirmed the hearing officer's recommendations to overrule Employer's Objection 1 contending that it was objectionable for the Petitioner to promise during its campaign, to negotiate a collective-bargaining agreement that would base entitlement to work on the amount of time the employee had worked for the Employer at the Pavilion; and Employer's Objection 3 alleging that the Petitioner's election observer (Local 11 President Robert Volosevich) was objectionable because he was (1) not an employee of the Employer and (2) responsible for referring eligible voters for work at the Pavilion and other venues where Local 11 supplies employees. The Employer and Petitioner's Local 11 are parties to a collective-bargaining agreement covering half the stagehands working at any given time at the Pavilion.

In overruling Objection 1, the Board agreed with the hearing officer that the Employer's reliance on Alyeska Pipeline Service Co., 261 NLRB 125 (1982), is misplaced, but it disagreed with his distinguishing of Alyeska from this case on the basis that Alyeska involved "intra-unit discrimination." It noted that here, unlike Alyeska, the Union does not maintain exclusive control of staffing and referrals and instead hiring procedures for the Pavilion would be subject to the collective-bargaining process. Also, the Union's promise was made to all employees without reference to union membership or support.

The Board reversed the hearing officer's finding, in agreement with the Regional Director in her Decision and Direction of Election, that the Employer's contract with Local 11 was an unlawful members-only agreement and his recommendation that the election be set aside on that basis. It noted that the Employer did not object to the election based on its hiring hall relationship with Local 11 and, thus, the issue was not before the hearing officer. See Precision Products Group, 319 NLRB 640 (1995), and Iowa Lamb Corp., 275 NLRB 185 (1985).

(Chairman Truesdale and Members Liebman and Walsh participated.)

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Cook County School Bus, Inc. (13-CA-38108, 38310; 333 NLRB No. 75) Arlington Heights, IL March 16, 2001. The Board affirmed the administrative law judge's conclusions that the Respondent violated Section 8(a)(5) and (1) of the Act by terminating its collective-bargaining agreement with Teamsters Local 744, failing to comply with the terms and conditions of the contract, withdrawing recognition from the Union, and unilaterally promising or implementing its dedicated driver drawing lottery program without giving prior notice and opportunity to bargain to the Union. The Board modified the judge's recommended Order to conform to his finding that the Respondent committed an independent violation of Section 8(a)(1) by promising employees benefits in the form of a lottery bonus program, and to provide for the traditional make-whole relief as requested by the General Counsel. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Teamsters Local 744; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago, April 12-13, 2000. Adm. Law Judge Martin J. Linsky issued his decision Aug. 31, 2000.

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Anderson Cupertino d/b/a Anderson Chevrolet-Chrysler/Plymouth (32-CA-17034; 333 NLRB No. 69) Cupertino, CA March 13, 2001. The Board, on the recommendation of the administrative law judge, dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing its recognition from Teamsters Local 665. The Board agreed with the judge that there is insufficient credible evidence to establish that the Respondent had recognized Local 665 as the representative of its lot employees. Trevose Family Shoe Stores, 235 NLRB 1229 (1978). Under the test of Nantucket Fish, 309 NLRB 794 (1992), (requiring clear, express and unequivocal evidence of recognition), the Board found there is insufficient evidence of recognition and majority status. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Teamsters Local 665; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oakland, CA on June 9, 1999. Adm. Law Judge James M. Kennedy issued his decision Aug. 3, 1999.

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SAE Young Westmont-Chicago, LLC (13-CA-38410, 38740; 333 NLRB No. 59) Chicago, IL March 9, 2001. Finding that the Respondent failed to comply with the terms of the settlement agreement and failed to (1) offer reinstatements to the discriminatees; (2) make backpay installment payments; (3) reinstate the health insurance; and (4) post notices, the Board granted the General Counsel's motion for summary judgment. The Board held that the Respondent violated Section 8(a)(1), (3), and (5) of the Act by interrogating employees about their union activities and sympathies and the union activities of other employees; threatening employees with stricter enforcement of work rules and possible job loss if they chose to be represented by Teamsters Local 743; and promising benefits to employees if they chose not to be represented by the Union. [HTML] [PDF]

On November 7, 2000, the Regional Director approved a settlement agreement entered into by the Respondent on October 27, 2000. The settlement agreement states in relevant part ". . . that after 15 days notice from the Regional Director . . . of such non-compliance without remedy by Respondent, the Regional Director shall reissue the complaints previously filed in the instant cases. Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the just issued complaint concerning the violations alleged therein." The Respondent, on various dates beginning December 1, 2000, was requested to comply with the terms of the settlement agreement and, having failed to do so, the Acting General Counsel reissued the complaint and, subsequently, filed a motion for summary judgment.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charges filed by Teamsters Local 743; complaint alleged violation of Section 8(a)(1), (3) and (5). General Counsel filed motion for summary judgment Jan. 16, 2001.

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Salem Hospital (1-RC-21224; 333 NLRB No. 71) Salem, MA March 9, 2001. The Board reversed the Acting Regional Director's finding that the case managers who have an RN (registered nurse) license may be included in the existing RN unit. Since the case managers are not required to be RNs, the Board held that the inclusion in the existing RN unit of only those case managers who have an RN license was erroneous. The Board stated: [HTML] [PDF]

Contrary to the Acting Regional Director's finding, the Board's Healthcare Rulemaking does not warrant dividing the Employer's case managers, who perform or will be performing the same work, into separate bargaining units based on whether they are holders of an RN license. . . . In the instant case, we find that the absence of a requirement for RN licensure for the Employer's case manager position demonstrates that case managers, some of whom hold an RN license, do not share a community of interest with the existing RN unit.

The Employer operates an acute care hospital and employs 11 case managers, 7 are RNs and 4 are licensed social workers. The Petitioner sought to include the case managers who are RNs in the existing RN unit. The Employer contended that case manager RNs should be excluded from the RN unit because RN licensing is not required for the position, the position is not staffed solely by RNs, and that there are distinctions in community of interest between case manager RNs and the other RNs.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Merit Contracting, Inc. (6-CA-28848, et al.; 333 NLRB No. 64) Monongahela, PA March 12, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act by terminating two employees who were union members and violated Section 8(a)(1) by unlawful interrogation and surveillance. The judge's dismissal of the discrimination allegations of four applicants was also affirmed by the Board. Finding merit in a General Counsel exception, the Board upheld an 8(a)(1) allegation involving an incident on March 17, 1997, between alleged discriminatee Jerald Rodgers and Charles Rush, the Respondent's vice president and superintendent. [HTML] [PDF]

Applying FES (A Division of Thermo Power), 331 NLRB No. 20, (2000), which set forth the framework for analysis of refusal-to-hire and refusal-to-consider violations, the Board remanded to the judge for further consideration, including, if necessary, reopening of the record, to obtain evidence concerning the question whether the Respondent discriminatorily refused to hire alleged discriminatees Michael Eutsey, John Hay, Patrick Rice, Ronald Schade, Ken Sisley, Glen Stevenson, Nathaniel Turner, Henry Whipkey, and Thomas Wrather because of their union membership.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Operating Engineers Local 66; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Pittsburgh, Nov. 17-21 and Dec. 8, 1997. Adm. Law Judge Richard H. Beddow Jr. issued his decision April 24, 1998.

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Waterbury Hotel Management LLC and Waterbury Hotel Equity LLC, subsidiaries of New Castle Hotels LLC (34-CA-7815, 7879; 333 NLRB No. 60) Waterbury, CT March 9, 200l. Chairman Truesdale and Member Liebman affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire its predecessor's employees and discharging employees because they wore union buttons at work; and violated Section 8(a)(5) and (1) by unilaterally setting initial terms and conditions of employment for its hires without bargaining with Hotel Employees and Restaurant Employees Local 217 and promulgating, maintaining, and enforcing a rule prohibiting employees from wearing Union buttons at the Hotel. They denied the Respondent' s request for de novo review of the unfair labor practice issues, alleging the judge engaged in misconduct, manifested prejudice, and denied it due process by his verbatim incorporation of the General Counsel's posthearing brief in his decision. [HTML] [PDF]

Member Hurtgen, concurring in part and dissenting in part, found the Respondent's rule prohibiting employees from wearing Union buttons was unlawful because it was discriminatorily enforced. He disagreed with the judge's conclusion that the rule would be unlawful even if it were uniformly applied because he would not find a violation if the rule had been evenly enforced as the Respondent's hotel dealt with the public. Member Hurtgen also disagreed with the judge's finding that, based on the 8(a)(3) refusal-to-hire violation, the Respondent violated the Act by setting the initial terms and conditions of employment for its hires. See his dissenting opinion in Pacific Custom Materials, 327 NLRB 75 (1998), and Jennifer Matthew Nursing & Rehabilitation Center, 332 NLRB No. 27 (2000).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Hotel Employees and Restaurant Employees Local 217; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Hartford for 20 days on various dates between Jan. 21 and March 2, 1999. Adm. Law Judge Wallace H. Nations issued his decision Aug. 9, 1999.

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Heritage Hall, E.P.I. Corp. (9-CA-33459-1, et al.; 333 NLRB No. 63) Lawrenceberg, KY March 6, 2001. Agreeing with the administrative law judge that the Respondent's licensed practical nurses (LPNs) are not supervisors within the meaning of Section 2(11) of the Act, the Board found that the Respondent, as the party asserting supervisory status, failed to meet its burden of establishing the LPNs' supervisory status by claiming that the LPNs they assign work to, responsibly direct, and discipline nurses' assistants (NAs). Recognizing that this case arose in the Sixth Circuit, which has disagreed with the Board's allocation of proof in establishing supervisory status and interpretation of the term "independent judgment" in Section 2(11), the Board noted the Supreme Court has granted certiorari in a case that raises the same issues--Kentucky River Community Care v. NLRB, 193 F.3d 444 (6th Cir. 199), cert. granted 121 S.Ct. 27 (2000). [HTML] [PDF]

Turning to the alleged violations, the Board affirmed the judge's findings that the Respondent violated Section 8(a)(3) and (1) by discharging Barbara Tyler because she refused to support its antiunion campaign and to commit unfair labor practices in furtherance of the Respondent's cause, discharging Robin Ransdell whom it considered a union "ringleader, and suspending Brenda Norman because of her union support; and violated Section 8(a)(1) in several respects, including threats, coercive interrogation, creating the impression that its employees' union activities were under surveillance, and conducting its own election after Laborers Local 575 filed the initial unfair labor practice charge here blocking the Board representation election. Regarding the latter finding, the Board stressed that under Struksnes Construction Co., 165 NLRB 1062 (1967), the Respondent "was prohibited from lawfully conducting its own election while the Union's election petition was pending even if the Respondent had complied with the procedural safeguards set forth in that case."

In a reversal of the judge, the Board found the Respondent did not violate Section 8(a)(1) when its administrator, Jennifer Steer, informed LPNs that they were supervisors and unable to vote in the election or engage in union activities, concluding that the incorrect comment about the LPNs' supervisory status did not constitute interference with their Section 7 rights.

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charges filed by Laborers Local 575; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Lexington, April 30, May 1-2 and 7-8, 1996. Adm. Law Judge Karl H. Buschmann issued his decision April 30, 1997.

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Women and Infants' Hospital of Rhode Island (1-RC-21289; 333 NLRB No. 65) Providence, RI March 8, 2001. Chairman Truesdale and Member Walsh denied the Employer's request for review of the Regional Director's decision and direction of election, agreeing that exclusionary language in the unit description of the parties' collective-bargaining agreement does not constitute a bar to a self-determination election for the Employer's respiratory therapists to express an interest in representation by Petitioner SEIU Local 1199 in the existing unit of technical employees. The majority noted that Board precedent fully supports the Regional Director's finding that exclusionary language in a unit description does not constitute an implied promise not to represent employees in the excluded classifications. And, there is no express promise by the Petitioner not to seek to represent the respiratory therapists, it added. See Cessna Aircraft Co., 123 NLRB 855 (1959). [HTML] [PDF]

In his dissent, Member Hurtgen noted that although his colleagues' position "has support in extant Board law," the approach "may well elevate form over substance." He wrote: "I am not saying that extant Board precedent should be reversed. That precedent may reflect values which should be preserved. However, there are also values in giving effect to the plain meaning of a contractual exclusion. In order to fully weigh these competing values, I would grant review."

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

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Kaiser Foundation Health Plan of Colorado (27-RC-7964; 333 NLRB No. 66) Denver, CO March 9, 2001. Chairman Truesdale and Member Liebman granted the Petitioner's request for review, reversed the Regional Director's dismissal of the petition filed by Food & Commercial Workers Local 7 seeking a unit consisting of 29 technical employees in three job classifications at this non-acute-care health facility, and remanded the case. The majority found that a unit consisting of 41 employees in the Employer's eyecare department (the 29 employees sought by the Petitioner and an additional 12 technical optical employees) constitutes an appropriate residual unit to the existing SEIU non-professional unit. On remand, it directed the Regional Director to ascertain the Petitioner's interest in representing a residual unit that differs from the petitioned-for unit and to determine whether it possesses the requisite showing of interest in such unit. [HTML] [PDF]

The Employer's eyecare department includes 66 technical, service, and clerical employees who are represented by the SEIU as part of the broad nonprofessonal unit and 31 professional employees who are represented by the Petitioner in one of its professional units. The 29 technical employees (certified optical dispensers, optical dispensers, and a team leader whom the Petitioner sought to represent) and 12 technical optical employees who work in the laboratory or stockroom at the support facility, are the Employer's only unrepresented healthcare employees.

In light of the findings in St. Mary's Duluth Clinic Health System, 332 NLRB No. 154 (2000), the majority held that a nonincumbent union may petition for an appropriate residual unit of employees at a non-acute-care health facility. In St. Mary's, the Board overruled its 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. In the instant decision, the majority explained: "Although the instant case is not governed by the Health Care Rule-since the Employer is not an acute-care provider-the principles and analyses articulated in St. Mary's are equally applicable to petitions for residual units at non-acute care health facilities." Consistent with St. Mary's, in the event the Regional Director ultimately directs an election among a unit of residual employees, the incumbent union will be afforded the opportunity to appear on the ballot if it so desires, without having to demonstrate the traditional showing of interest.

Member Hurtgen, in dissent, noted that he also disagreed with the majority opinion in St. Mary's. He stated: "I dissented because my colleagues' decision violated Section 103.30(c) of the Health Care Rule, it was inconsistent with Board precedent, and it was at odds with the Congressional admonition against undue proliferation of units in the health care industry."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Overnite Transportation Co. (18-CA-15496; 333 NLRB No. 62) Blaine, MN March 8, 2001. The Board majority of Chairman Truesdale and Member Liebman granted the General Counsel's motion for summary judgment, finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Teamsters Locals 89, 299, 375, and 651. [HTML] [PDF]

The Respondent claimed that after the Unions were certified, the International called a nationwide strike to protest the Respondent's alleged unfair labor practices that "has been plagued with serious, premeditated violence and other intimidation." Citing Laura Modes Co., 144 NLRB 1592 (1963), the Respondent contended that "the Teamsters' campaign of violence and intimidation should vitiate the certifications previously issued at the four locations involved here." It argued that under the Board's rules it is entitled to a hearing to prove Teamsters misconduct and its coercive impact on employees. The Respondent moved to reopen the record, to remand for hearing, and to consolidate this proceeding with any cases alleging that the strike misconduct violated Section 8(b)(1)(A) of the Act.

In the General Counsel's view, the Respondent has not presented sufficient evidence to warrant the relief it seeks and the strike misconduct issue should be examined in the pending 8(b)(1)(A) cases, not in the instant refusal-to-bargain case. The Board majority found that the strike-related misconduct alleged to have occurred is not of such a character as to justify the "extraordinary sanction" of depriving the employees of their elected collective-bargaining representatives and withholding the bargaining orders required to remedy the Respondent's unfair labor practices. Rather, it found that this case falls within the category of union picket line misconduct that the Board has found, with court approval, does not preclude an otherwise appropriate bargaining order.

Member Hurtgen, dissenting, would grant the Respondent a hearing with respect to its Laura Modes contentions. He noted that the issue is not whether the Locals can be held responsible for any Section 8(b)(1)(A) misconduct by the International but whether the Locals can secure the benefits of a bargaining order in circumstances where a related entity has engaged in substantial misconduct on their behalf.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Teamsters on behalf of Locals 89, 299, 375, and 651; complaint alleged violation of Section 8(a)(5) and (1). The General Counsel filed a motion for summary judgment on March 7, 2000.

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Florida Wire & Cable, Inc. (12-CA-19534, et al.; 333 NLRB No. 52) Jacksonville, FL Feb. 26, 2001. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees because they ceased work concertedly and engaged in a strike, and by failing to timely reinstate and delaying the timely reinstatement of economic strikers to their former or substantially equivalent positions upon their unconditional applications for reinstatement; and violated Section 8(a)(1) by telling employees that they had to resign from Steelworkers Local 9292 in order to work past the expiration date of a current collective-bargaining agreement, soliciting employees to resign from the Union, telling employees that they will never be reinstated to their former or substantially equivalent positions, threatening to discharge striking employees unless they accepted reinstatement to jobs that were not their former jobs or substantially equivalent positions, and confiscating picket signs from strikers and destroying them in the presence of employees. [HTML] [PDF]

In affirming the judge's findings, Member Hurtgen rejected any implication that departmental seniority is always the preferred standard to apply in recalling strikers. See his partial dissent in Alaska Pulp Corp., 326 NLRB 522 (1998), enf. denied, 231 F.3d 1156 (9th Cir. 2000).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Steelworkers Local 9292; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Jacksonville, Jan. 24-25, 2000. Adm. Law Judge Howard I. Grossman issued his decision Sept. 20, 2000.

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Safway Steel Products (29-CA-22769; 333 NLRB No. 55) Brooklyn, NY Feb. 26, 2001. The Board upheld the administrative law judge's decision, as modified, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to implement the terms of the memorandum of agreement reached with Carpenters Local 2819 in May 1999 entitled "Addendum Article J#1, Benefit Funds" covering payments to the Union's Trust fund for bargaining unit employees. The judge found there was a meeting of the minds and the parties reached an agreement that the welfare fund contribution would be increased by 25 cents on January 1, 1999, and by an additional 25 cents on July 1, 1999. He rejected the Respondent's affirmative defenses that the complaint is barred by Section 10(b) of the Act and that the Union waived its right to bargain about an increase in welfare contributions by waiting until December 1998 in reopening negotiations when it had a contractual right to do so on July 1, 1998. [HTML] [PDF]

Finding merit in the General Counsel's limited exceptions, the Board amended the judge's Conclusions of Law, Remedy, Order and Notice to include a consistent provision that the Respondent implement the May 1999 agreement reached by the parties and make payments to the Union's trust fund retroactively to January 1999.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Carpenters Local 2819; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on Jan. 19, 2000. Adm. Law Judge Steven Davis issued his decision March 14, 2000.

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Lois Development Corp. d/b/a Wallace Theaters (37-CA-4579, et al.; 333 NLRB No. 58) Honolulu, HI Feb. 27, 2001. Agreeing with the administrative law judge, the Board held that the Respondent did not engage in bad-faith bargaining in violation of Section 8(a)(5) and (1) of the Act and dismissed the complaint in its entirety. [HTML] [PDF]

The judge found that the Respondent and Hotel Employees and Restaurant Employees Local 5 had 21 sessions of good faith bargaining between January 5, 1996 and January 28, 1997 even though the Union suspended bargaining after two sessions and engaged in informational picketing at the Respondent's movie theaters. When the parties resumed negotiations 4 months later, progress was made and accelerated when the Respondent submitted its written counterproposal on October 10, 1996, the judge said. He rejected the General Counsel's arguments that the Respondent was unreasonable in limiting negotiating sessions to 2 to 3 hours, and that bargaining was hampered by the Respondent's 10-month delay in providing its written counterproposal and failure to make a representative available at reasonable times from November 1996 through March 1997.

The Board found it unnecessary to pass on the judge's conclusion that the parties "clearly [had] reached in impasse" when bargaining ended on January 28, 1997. And, it did not adopt or rely on his opinion that the contract proposed by the Respondent "stinks."

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charges filed by Hotel Employees and Restaurant Employees Local 5; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Honolulu, April 15, 16, 19 and 20, 1999. Adm. Law Judge Gerald A. Wacknov issued his decision July 29, 1999.

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Flour Daniel, Inc. (15-CA-12544, et al.; 333 NLRB No. 57) Wintersburg, AZ and Baton Rouge, LA March 2, 2001. The Board concluded, based on discriminatory corporate policies and field practices implementing them, that the Respondent unlawfully applied its system of hiring preferences, policies and procedures in order to refuse to consider and hire 120 voluntary union organizers who applied to work at its Palo Verde Nuclear Generating project near Phoenix, Arizona and its Exxon refinery site at Baton Rouge, Louisiana; and that the Respondent engaged in associated threats, coercive statements, and retaliatory conduct. Although the Board agreed with the judge that there is insufficient evidence to establish that the Respondent unlawfully refused to hire five union activist applicants for rebar helper positions at the Louisiana site, it found that the Respondent violated Section 8(a)(3) and (1) by refusing to consider them for hire. [HTML] [PDF]

The Board entered a nationwide remedy and ordered national posting and mailing to all Respondent employees and applicants, relying on its conclusion that the Respondent's hiring criteria, as applied, unlawfully discriminated against union activists in Arizona and Louisiana, and its earlier decisions making similar findings with respect to other Respondent jobsites in other parts of the country.

This is the third of four cases alleging that the Respondent's hiring practices have unlawfully discriminated against applicants for employment who showed an interest in exercising rights protected by the Act. One complaint, currently pending trial, involves 130 job applicants at two Respondent projects in Louisiana. In two earlier cases, the Board found that the Respondent engaged in the discrimination alleged and "offered no credible reasons" for treating applicants disparately. A factor underlying the Board's finding in one case was that the Respondent disparately enforced a rule limiting the effective period of employment applications to exclude union activists on the ground that their applications had expired.

The Respondent has asserted the same "inactive application rationale" as a defense in the instant case, as well as its rule against accepting applications unless there were present openings. The General Counsel alleged the Respondent systematically applied its hiring preferences and policies to screen out union activists from consideration and to hide their exclusion under the pretense of legitimacy, and that it discriminated against voluntary union organizer applicants by treating them less favorably than all other applicants-not only nonactivist, nonpreferenced applicants, but also preferenced former employees.

Examining the Respondent's entire hiring system as applied at the two jobsites, the Board noted two evidentiary factors that were not available in the two prior cases: an emerging pattern of discrimination, and subsequent documents and testimony evidencing discriminatory intent at the corporate level. Citing FES, 331 NLRB No. 20 (2000), it found the General Counsel established his prima facie case that the Respondent both harbored animus and acted upon it, and that the Respondent failed to rebut it, finding its defenses are pretextual: The Board wrote:

As determined by the judge, whose findings we adopt, the Respondent was hiring throughout the period when discriminatee applicants applied or unsuccessfully sought to apply for employment at the Exxon and Palo Verde sites. Next, those discriminatees were well qualified and experienced applicants for the positions they sought. Indeed, in the case of Palo Verde, the discriminatees were experienced at that very nuclear facility. Finally, . . . the record is replete with evidence that antiunion animus factored heavily in the Respondent's decision not to hire the discriminatees, or, as to the applicants who unsuccessfully sought to apply at Palo Verde . . . contributed to the Respondent's decision not to consider them for hire or hire them.

Considerable evidence in this case supports the inference of unlawful motive. As set forth in the judge's decision, and expanded upon here, the Respondent committed prior unfair labor practices of the same type, harbored corporate level animus, made project level hiring decisions implementing its animus, and engaged in threatening and coercive conduct. Based on this evidence, we find that the Respondent engaged in a pattern of systematic discrimination intended to screen out union activists from consideration for employment. The practical effect of this was to allow the Respondent selectively to choose a nonunion workforce by precluding employment of union activists.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charges filed by Boilermakers Local 995 and Plumbers Local 198; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Phoenix and Baton Rouge for 51 days between Aug. 1, 1995 and Dec. 12, 1996. Adm. Law Judge Martin J. Linsky issued his decision Feb. 6, 1998.

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TeleTech Holdings, Inc. (3-CA-21862; 333 NLRB No. 56) Niagara Falls, NY Feb. 27, 2001. Contrary to the administrative law judge, the Board found that the Respondent's maintenance of its no-distribution rule and no-access rule in its orientation handbook violated Section 8(a)(1) of the Act. The judge, in his decision, asserted that these rules did not have any coercive impact on the employees' Section 7 rights. The Board held that rules prohibiting distribution of literature on employees' own time in nonworking areas and prohibiting off-duty employees seeking access to the plant for any purpose are unlawful and violate the Act. [HTML] [PDF]

The Board upheld the judge's dismissal of the Section 8(a)(1) and (3) allegation that employee Frank Butry was discharged because of his activities on behalf of the Union. It agreed that the General Counsel did not establish that the Respondent was aware of Butry's union activities.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Communications Workers; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Niagara Falls, NY, Oct. 28 and 29, 1999 and April 24, 2000. Adm. Law Judge Karl H. Buschmann issued his decision Aug. 15, 2000.

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West Michigan Plumbing and Heating (7-CA-42086; 333 NLRB No. 61) Richland, MI Feb. 28, 2001. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) and (3) of the Act by reassigning, isolating and discharging employee Mikkel Wagner because of his union activities and by maintaining a rule in its handbook to encourage employees to report to Respondent employees who solicit other employees to join the union. [HTML] [PDF]

The Board noted that no exceptions were taken to the judge's dismissal of the 8(a)(1) interrogation of Wagner and to the judge's finding that foreman Greg Goole was not a supervisor within the meaning of Section 2(11) of the Act.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Plumbers Local 357; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Grand Rapids, Oct. 27, 1999. Adm. Law Judge C. Richard Miserendino issued his decision May 11, 2000.

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R&S Truck Body Co. (9-CA-34153, 34428, 9-RC-16781; 333 NLRB No. 50) Allen, KY Feb. 15, 2001. Affirming the administrative law judge's decision, the Board held that the Respondent discriminatorily suspended, laid off, and discharged employees, refused to rehire them and conditioned their return to work on their relinquishment of seniority and related benefits because of their activities for National Conference of Firemen and Oilers, Service Employees. The judge found, with Board approval, that the Respondent further violated the Act and engaged in objectionable conduct such as unlawful threats, promise of benefit and coercive interrogation that was sufficient to warrant setting aside the representation election held on October 11, 1996 in Case 9-RC-16781. [HTML] [PDF]

In the representation matter, the Regional Director shall open and count the ballots of 17 voters who had cast challenged ballots but whose challenges were overruled, prepare a revised tally, and issue a certification of representative if the Union has received a majority of the valid ballots cast. If the revised tally of ballots shows that the Union has not received a majority of the valid ballots cast, the Regional Director shall set aside the election and conduct a second election.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by National Conference of Firemen and Oilers, Service Employees; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Prestonsburg, July 8-9 and Sept. 23-24, 1997. Adm. Law Judge Steven M. Charno issued his decision April 6, 1999.

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Letter Carriers Local 3825 (5-CB-8347(P); 333 NLRB No. 41) Rockville, MD Feb. 20, 2001. Members Liebman and Walsh agreed with the administrative law judge that the Respondent violated Section 8(b)(1)(A) of the Act when shop steward Leslie Gaynair informed Howard Gross, an employee of the unit of employees it represents, that nonmembers were not entitled to copies of their grievance documents and failing to provide Gross with copies of his requested grievance documents because he was not a union member. Unlike Member Hurtgen, the majority found no denial of due process in holding that Gaynair's statements were unlawful. The issue was fully and fairly litigated, despite the General Counsel's failure to amend the complaint at the hearing, Members Liebman and Walsh observed. They noted it is well settled the Board may find and remedy a violation even in the absence of a specified complaint allegation if the issue is closely related to the subject matter of the complaint and has been fully litigated particularly where, as here, the finding of a violation is established by the testimonial admissions of the Respondent's own witnesses. [HTML] [PDF]

Reversing the judge, Members Liebman and Walsh dismissed the complaint allegation that the Respondent further violated Section 8(b)(1)(A) by impliedly threatening (in Gaynair's article in the Respondent's March 1996 "Unity" newsletter, circulated to members) unspecified reprisal or retaliation, which could include refusing to represent employees who complain about union officers or who cooperate with the employer's investigation of union officials. They did not view the article as a threat not to represent employees who report misconduct by union members, stating: "Rather it is merely name calling against Gross, and it criticizes as ungrateful the union-member informants who provided information against a fellow member who was also a union officer."

Member Hurtgen, dissenting in part, would affirm the judge's finding that the Respondent unlawfully threatened Gross that it would not represent him, agreeing that the Respondent went beyond mere name-calling. And, for procedural reasons, he would not find that the Respondent unlawfully informed Gross that he could not have certain documents because he was not a union member. The complaint did not allege the violation and the General Counsel did not move to amend the complaint at trial, but rather, on brief to the judge, Member Hurtgen noted. "In my view, if the General Counsel wishes to amend the complaint, he should do so at trial, so that a respondent can offer any defense that it might have," he said, finding fundamental due process was not accorded.

(Members Liebman, Hurtgen, and Walsh participated.)

Charges filed by Howard K. Gross, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Washington, D.C. on May 21, 1998. Adm. Law Judge Earl E. Shamwell issued his decision Sept. 18, 1998.

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Gannett Co., Inc. (21-CA-32086; 333 NLRB No. 44) San Diego, CA Feb. 20, 2001. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to timely notify and bargain with American Federation of Television and Radio Artists Local 225 about the effects upon union-represented employees of the Respondent's decision to sell Radio Station KSDO in San Diego, California. [HTML] [PDF]

The Board modified the judge's recommended Order to require that the Respondent pay the union-represented employees their normal wages when in the Respondent's employ on December 9, 1996 (the date that the FCC approved the sale of KDSO) from 5 days after the date of the Board's decision until the occurrence of the earliest of certain conditions. In no event shall the sum paid to any of the employees exceed the amount he or she would have earned as wages from December 9, 1996 to the date the Respondent shall have offered to bargain; provided, however, that in no event shall the sum be less than the employees would have earned for a 2-week period at the rate of their normal wages on December 9, 1996. Citing Melody Toyota, 325 NLRB 846 (1998), the Board modified the judge's recommended Order to require the Union to request desired bargaining within 5 days after receipt of its decision or to commence negotiations within 5 business days after receipt of the Respondent's notice of its desire to bargain with the Union.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by American Federation of Television and Radio Artists Local 225; complaint alleged violation of Section 8(a)(1) and (5). Adm. Law Judge Joan Wieder issued her decision Nov. 19, 1998.

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Howard's Sheet Metal, Inc. (9-CA-37162; 333 NLRB No. 49) Baltimore, OH Feb. 22, 2001. The Board affirmed the administrative law judge's findings that the Respondent discharged Larry Pope and David Manter on November 1, 1999 in violation of Section 8(a)(3) and (1) of the Act. [HTML] [PDF]

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by Sheet Metal Workers Local 24; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Columbus on March 15, 2000. Adm. Law Judge Arthur J. Amchan issued his decision June 20, 2000.

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Laboratory Corporation of America Holdings (4-CA-26254; 333 NLRB No. 38) Pleasantville, NJ Feb. 13, 2001. The Board, reversing the administrative law judge, found the Respondent violated Section 8(a)(1) of the Act when Executive Vice President Richard Novak solicited grievances and promised benefits at a meeting with employee Anne DeFeo during a union organizing campaign.

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Service Employees Local 339; complaint alleged violation of Section 8(a)(1). Hearing at Philadelphia, PA, Feb. 9-10, 1998. Adm. Law Judge James L. Rose issued his decision April 14, 1998.

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Berkshire Farm Center for Youth (3-CA-19647; 333 NLRB No. 51) Canaan, NY Feb. 22, 2001. The administrative law judge in this case found that the Respondent violated Section 8(a)(3) of the Act by laying off employee Beverly Grochan because of her union activity and for refusing to consider her for recall. However, the judge concluded she had forfeited her right to backpay and reinstatement by improperly obtaining confidential information and concealing the truth when she testified at the hearing. [HTML] [PDF]

The Board held that the judge erred by not applying the standard in Marshall Durbin Poultry Co., 310 NLRB 68, 70 (1993), and John Cuneo, Inc., 298 NLRB 856-857 (1990), namely: "Under well-established Board precedent, if an employer establishes that an employee engaged in misconduct for which the employer would have discharged any employee, reinstatement is not ordered and backpay is terminated on the date that the employer first acquired knowledge of the misconduct." In these circumstances, the Board decided to leave resolution of this issue to compliance, where the Respondent, if it wishes to establish that Grochan is not entitled to reinstatement and her backpay must be limited, will have the burden of establishing that she engaged in misconduct for which it would have discharged any employee.

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by Beverly E. Grochan, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Albany, Sept. 16-19, 1996. Adm. Law Judge C. Richard Miserendino issued his decision Jan. 31, 1997.

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Regional Construction Corp. (22-CA-21968; 333 NLRB No. 42) Purchase, NY Feb.14, 2001. The Board adopted the administrative law judge's dismissal of a complaint alleging that the Respondent, by pursuing a lawsuit in state court in a particular way, violated Section 8(a)(1) of the Act. The Respondent had filed a lawsuit against the Union in Superior Court of New Jersey charging illegal picketing by blocking ingress and egress to a construction site. The Board determined the original June 25, 1997 charge was sufficiently specific, by referring to the April 2, 1997 date on which the Respondent filed its motion for an amended order in State Court, to apprise the Region and Respondent of the conduct being alleged as unlawful. While an amended charge was filed on October 15, 1997, more than six months after the original charge, setting forth the facts which the Union alleged were violative, the Board held that the complaint is not barred by Section 10(b). [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Laborers Local 472; complaint alleged violation of Section 8(a)(1). Hearing at Newark, NJ Jan. 26, 1998. Adm. Law Judge Raymond P. Green issued his decision April 23, 1998.

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Sacramento Theatrical Lighting (20-CA-28347-2; 333 NLRB No. 47) Sacramento, CA Feb. 14, 2001. The Board adopted the administrative law judge's recommendation and dismissed the complaint, finding that the Respondent did not violate Section 8(a)(1) of the Act when it did not ask striker Michael Pulskamp to return to work after the Union ended its strike. The Board held that it is the striker's duty to advise the employer of his intent to return and since Pulskamp never asked to return to work, the Respondent has never denied him the right to do so. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Theatrical Stage Employees Local 50; complaint alleged violation of Section 8(a)(1). Hearing at Sacramento, Aug. 18, 1998. Adm. Law Judge James M. Kennedy issued his decision June 10, 1999.

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Reynolds, Inc. (25-CA-26869; 333 NLRB No. 46) Orleans, IN Feb. 14, 2001. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) and (3) of the Act by threatening employees with discharge for asking employees whom they observed operating heavy equipment to show proof of their union membership or for engaging in protected concerted or union activities; and by discharging Harold E. Gasaway for checking the union membership cards of certain individuals. The Respondent, although arguing that checking cards or "carding" an employee hindered work and interfered with the progress of work on the project, contended that Gasaway was not discharged for violating any rule against card checking, but for cursing (cussing) his supervisor and calling him a liar. [HTML] [PDF]

Citing Denver Dry Wall Mountain Division, 216 NLRB 51 (1975), the judge noted that checking cards of employees is a customary practice in the construction industry of assuring adherence to the collective-bargaining agreement. In this matter, he determined that the Respondent has failed to show that Gasaway would have been discharged even in the absence of any union considerations.

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by Harold E. Gasaway, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Indianapolis, IN June 8, 2000. Adm. Law Judge Karl H. Buschmann issued his decision Dec. 6, 2000.

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Intercon I (Zercom) (18-CA-14533; 333 NLRB No. 30) Aitkin, MN Jan. 31, 2001. A Board majority of Chairman Truesdale and Member Liebman, while agreeing with the administrative law judge's finding that the Respondent had unlawfully threatened employees with retaliation and plant closure during a union organizing campaign, disagreed with the judge that employee Suzanne Witha's resignation did not constitute a constructive discharge under either the traditional constructive discharge theory or the "Hobson's Choice" doctrine. The fact that Witha was not immediately terminated does not mitigate the Respondent's "clear message" that she faced termination if she did not abandon her prounion attitude within four days, the Board stated. The majority also took exception to the judge's view that the Hobson's Choice doctrine is only applicable where an employer curtails the Section 7 rights of already represented employees, and is not applicable in cases where the employees currently are unrepresented. [HTML] [PDF]

Member Hurtgen dissented on the constructive discharge issue, asserting that "it was not 'clear and unequivocal' that Witha was faced with the choice of (1) foregoing Section 7 activity and (2) discharge. Accordingly, her resignation was not constructive discharge." He cited Com General Corp., 251 NLRB 653, 657-658 (1980).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Electrical Workers (IBEW); complaint alleged violation of Section 8(a)(1) and (3). Hearing at Aitkin, Feb. 4, 1998. Adm. Law Judge William J. Pannier III issued his decision Oct. 6, 1998.

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Budget Heating & Air Conditioning (12-CA-20312; 333 NLRB No. 23) Tampa, FL Jan. 31, 2001. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (3) of the Act by threatening employees with unspecified reprisals, informing employees it would be futile to select the Union, threatening employees with discharge, and discharging four employees because of their union activities. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Sheet Metal Workers Local 15; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tampa, Aug. 31, 2000. Adm. Law Judge Pargen Robertson issued his decision Aug. 31, 2000.

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The Tidewater Group, Inc. (5-CA-28098; 333 NLRB No. 34) Clinton, MD Feb. 9, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union and unilaterally ceasing payments for group health insurance for bargaining unit employees. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Laborers Local 571; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Washington, DC on March 2-4, 1999. Adm. Law Judge James L. Rose issued his decision April 21, 1999.

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Auto Workers and its Local 1853 (Saturn Corporation) (26-CB-3508; 333 NLRB No. 43) Nashville, TN Feb. 13, 2001. The Board, finding no violation of Section 8(b)(1)(A) of the Act, denied the General Counsel's motion for summary judgment, granted the Respondents' cross-motion for summary judgment, and dismissed the complaint. [HTML] [PDF]

At issue is whether the Respondents violated Section 8(b)(1)(A) of the Act by promulgating a policy requiring employees who had "withdrawn dishonorably" from the Union, i.e., resigned from the Union while remaining in bargaining unit positions in which they continued to be represented by the Union, to pay a fee equivalent to the dues for the period of nonmembership if they should seek to rejoin the Union, while allowing employees who had "honorably withdrawn," i.e., resigned from the Union because they had taken a position outside the bargaining unit, to rejoin without having to pay such a fee.

The Board found that the Union's policy is not coercive or discriminatory and constitutes a legitimate exercise of the Union's right under the proviso to Section 8(b)(1)(A) "to prescribe its own rules with respect to the acquisition or retention of membership therein(.)"

It rejected the General Counsel's contention that those cases-which pertain to union fees imposed in connection with the enforcement, or potential enforcement, of a union-security provision as a condition of continued employment-extend to the facts of this case. The Board found instead that the absence of a compulsory union security clause is determinative in analyzing the legality of the Union's policy, because employees face no employment sanctions for any decision related to union membership. "In the circumstances here, we find that, in the absence of an employment-related sanction, the union policy at issue here reflects a legitimate distinction between bargaining unit employees and nonbargaining unit employees, and is not discriminatory as applied to former members who have remained in the unit and who voluntarily elect to rejoin the Union," the Board held.

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Earl Lee, an Individual; complaint alleged violation of Section 8(b)(1)(A). General Counsel filed motion for summary judgment and Respondents filed joint cross-motion for summary judgment on June 4, 1997.

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Grand Valley Health Center (7-CA-42686; 333 NLRB No. 35) Grand Rapids, MI Feb. 9, 2001. The Board affirmed the administrative law judge's findings that the Respondent, by its director of building services, Ronald Klump, violated Section 8(a)(1) of the Act by coercively interrogating Charles Barber about his union activities, seeking information from him about the union activities of other employees, and threatening him with discharge because of his union activities. [HTML] [PDF]

The Board also agreed with the judge that the Respondent's acceptance of Barber's resignation on December 20, 1999 was not in retaliation against Barber's union activities and that the Respondent did not violate Section 8(a)(3) when it accelerated its acceptance of Barber's resignation and barred him from its premises. It found no merit in the General Counsel's cross-exceptions, contending that the Respondent relied on an existing and allegedly invalid written no-solicitation rule. There was no evidence that the Respondent relied on the rule, the Board noted. It said the General Counsel's cross-exceptions "are based on a limited theory that incorrectly relies on the Respondent's enforcement of an existing and alleged invalid written rule. Apart from this rule, the General Counsel does not challenge the Respondent's justification for restricting Barber's solicitation of nurses working in immediate patient care areas."

In agreeing with his colleagues and the judge that the 8(a)(1) allegations in the complaint are closely related to the timely filed 8(a)(3) allegations, Member Hurtgen notes that a defense to the 8(a)(3) allegations (viz lack of animus) would include the defense that the 8(a)(1) allegations lack merit.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Operating Engineers Local 547A, B, C. E. H; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Grand Rapids, June 6, 2000. Adm. Law Judge Arthur J. Amchan issued his decision Aug. 14, 2000.

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RCN Corp. (4-CA-28091, 28157; 333 NLRB No. 45) Northampton, PA Feb. 13, 2001. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act in response to the affiliation of RCN Employee Union (RCNEU), which had a collective-bargaining agreement with the Respondent, with the Communications Workers of America. The merged union is Communications Workers Local 13000 (CWA Local 13000). Specifically, the Respondent refused to recognize and bargain with CWA Local 13000; denied off-duty employees access to the exterior and other nonworking areas of its Northampton facility; requested employees to inform management if they were harassed or intimidated by their fellow employees who solicited them to sign union authorization cards and encouraged employees to identify union supporters; maintained and enforced a rule prohibiting employees from soliciting or distributing protected material on company time or premises; promulgated, maintained, and enforced rules requiring them to wear company issued uniforms and hats; prohibited employees from placing items on the dash-boards of company vehicles and wearing union insignia at work; and unilaterally eliminated the union bulletin board at its Northampton facility. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charges filed by Communication Workers Local 13000; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia, Sept. 1-3, 1999. Adm. Law Judge Benjamin Schlesinger issued his decision Dec. 30, 1999.

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IBM Corp. (3-CA-22062; 333 NLRB No. 26) Poughkeepsie and East Fishkill, NY Jan. 31, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by maintaining a rule barring large signs in parking lots and telling employees it prohibited them from displaying prounion signs on their vehicles in company parking lots. Citing Comcast Cablevision, 313 NLRB 220 fn. 3 (1993), the judge said he would find a violation even if there had been no explicit or implicit threat of disciplinary action--as there was in the instant case. The Board found no merit in the Charging Party's argument in cross- exceptions that the circumstances of this case warrant companywide posting of the remedial notice. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Communications Workers Local 1120; complaint alleged violation of Section 8(a)(1). Hearing at Poughkeepsie, March 7-9, 2000. Adm. Law Judge Raymond P. Green issued his decision May 12, 2000.

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Judge & Dolph, Ltd. (33-CA-11482; 333 NLRB No. 19) Rockford, IL Jan. 31, 2001. The Board affirmed the administrative law judge's finding that the Respondent unlawfully accreted, in violation of Section 8(a)(1) and (2) of the Act, newly hired warehouse employees at Rockford, IL to a bargaining unit of warehouse employees employed at other northern Illinois facilities "by compelling employees, as a condition of employment, to withdraw membership from their union and to join another union that represented an existing unit of the Respondent's employees, and by thereafter applying to these employees the terms of an existing collective-bargaining contract between the Respondent and incumbent union." [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Teamsters Local 325; complaint alleged violation of Section 8(a)(1) and (2). Hearing at Rockford, Nov. 14, 1996. Adm. Law Judge William J. Pannier III issued his decision May 6, 1997.

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HVAC Mechanical Services, Inc. (16-CA-18730; 333 NLRB No. 24) Houston, TX Jan. 31, 2001. Upon review of this salting case in light of FES, 331 NLRB No. 20 (2000), the Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to consider two applicants for employment on March 5, 1997, after they said they intended to picket and organize the Respondent, if hired. The Board remanded the case to the judge on the issue of whether the applicants would have been hired absent the discriminatory refusal to consider. The judge's recommended remedy had reserved this issue for the compliance stage of this proceeding. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Sheet Metal Workers Local 53; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Houston, March 23, 1998. Adm. Law Judge George Carson II issued his bench decision April 14, 1998.

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Hoffman Manor (29-CA-23168; 333 NLRB No. 25) Long Beach, NY Jan. 31, 2001. Affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employee Linda Orellana because of her efforts to join Long Island Service Employees Local 1115. Although Member Hurtgen agreed with the judge's conclusion that the discharge of Orellana was unlawful, he did not agree with the judge's rationale. The judge relied "particularly" on a finding that the Respondent's stated reasons for the discharge were incredible: she had 18 absences during the brief time she was employed, she was often late for work, and she was out from work without calling in. Member Hurtgen relied more heavily on the fact that Respondent decided to discharge Orellana when it learned she was visiting the Union's office. [HTML] [PDF]

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by Long Island Service Employees Local 1115. Hearing at Brooklyn, NY on May 24, 2000. Adm. Law Judge Raymond P. Green issued his decision Aug. 11, 2000.

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South Coast Hospice, Inc. (36-RC-6015; 333 NLRB No. 21) Coos Bay, OR Jan. 31, 2001. The Board, in reversing the hearing officer's recommendation that the Petitioner's challenge to the ballot of Dr. Dallas Carter be sustained, reiterated an earlier finding in Laidlaw Transit, Inc., 322 NLRB 895 (1997), where the Board explained: [HTML] [PDF]

It is well-settled Board policy that a Stipulated Election Agreement is a binding contract to which the parties will be held, and that if the unit description of that agreement is expressed in clear and unambiguous terms, the Board will not examine extrinsic evidence to determine the parties' intent regarding bargaining unit composition.

Carter has the title "medical director" and the Employer argued that Carter must be included in the bargaining unit because the Stipulated Election Agreement includes the classification of "medical director" in Unit A of the bargaining unit description. Holding that the unit stipulation is clear and unambiguous on its face because it explicity includes the classification of medical director, the Board overruled the challenge to Carter's ballot and directed that his ballot along with 4 other challenged ballots be opened and counted.

(Chairman Truesdale and Members Liebman and Walsh participated.)

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Titan Wheel Corporation of Illinois (14-CA-25610(1-2); 333 NLRB No. 20) Quincy, IL Jan. 31, 2001. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a) (1) of the Act by videotaping and photographing union organizers and employees who were engaged in handbilling at the Respondent's gates. There were no exceptions taken to the judge's finding that the Respondent did not violate the Act when it instructed an employee he could not talk about the Union during work time or to the photographing of employees who were engaged in lawful handbilling at the Respondent's facility on June 2, 1999. [HTML] [PDF]

The Respondent's 700 production and maintenance employees at the Quincy location are not represented by a labor organization. The plant covers 6 large contiguous blocks and there are surveillance video cameras located on buildings or tall poles at various points throughout the complex, including points near nine gates to the property. Union organizer John Puskar testified that the Union conducted the organizational handbilling at four or five of the gates from December 1998 until April 2000. The video cameras are normally pointed in the direction of the parked automobiles but during the handbilling, Puskar and another witness testified, the cameras would turn to the handbilling activity.

The judge noted that the Board has long held, absent proper justification, the photographing of employees engaged in union or protected concerted activities violates the Act because it has a tendency to intimidate them. Waco, Inc., 273 NLRB 746 (1984). And, in Frontier Hotel & Casino, 323 NLRB 815 (1997), the Board found an employer's turning of parking lot video cameras to watch handbilling, without justification, constituted unlawful surveillance.

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1). Hearing at St. Louis, MO on Apr. 6, 2000. Adm. Law Judge David L. Evans issued his decision July 31, 2000.

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Mueller Energy Services, Inc. (3-CA-20542-1, -2; 333 NLRB No. 32) West Seneca, NY Feb. 6, 2001. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a) (1) of the Act by the issuance of two letters that threatened employees that they would lose their jobs and waive their rights under the existing collective-bargaining agreement between the Respondent and Oil Workers Local 8-215 if they joined Operating Engineers Local 17, conditioned continued employment upon reporting persons engaged in concerted activities to supervisors, created an impression among employees that their union activities were under surveillance, and solicited employees to resign their membership in Local 17. [HTML] [PDF]

In its exceptions to the judge's finding that it violated Section 8(a)(1) by soliciting employees (in its second letter dated February 27, 1997) to resign from Local 17, the Respondent argued that an employer may lawfully inform employees of their right to revoke their authorization cards (including supplying information and forms) even if they have not solicited such information, if the employer does not attempt to learn whether employees exercised the right, or offers any assistance or otherwise creates a situation in which employees would tend to feel peril in refraining from revocation. The Board noted that the Respondent's first letter to employees, also dated February 27, 1997, contained an unlawful threat of job loss for those employees who signed with Local 17. It held: "Thus, the Respondent created a situation in which the employees would tend to feel peril in refraining from revoking their cards. In these circumstances, the Respondent could not lawfully inform its employees of the right to revoke their authorization cards."

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charges filed by Operating Engineers Local 17; complaint alleged violation of Section 8(a)(1). Hearing at Buffalo on Oct. 14, 1997. Adm. Law Judge Eleanor MacDonald issued her decision May 4, 1998.

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Kamtech, Inc. (25-CA-25047-1, -2; 333 NLRB No. 33) Woodstock, NY Jan. 31, 2001. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by, among other things, refusing to consider Michael Cornell for employment as a welder at its Hawesville facility and discharging Mark Roundtree because of their union support, interrogating applicants for employment about their union background, placing employees' union activities under surveillance, and informing or indicating to them or job applicants that applications for employment will not be considered because of applicants' union support. [HTML] [PDF]

The Board agreed with the judge that the Respondent failed to give former Kamtech welder Cornell an opportunity to take a welding test to determine his qualifications for a welding job. It did not affirm his finding that the Respondent unlawfully refused to hire Cornell because it is unclear whether he would have passed the welding test. Citing FES, 331 NLRB No. 20 (2000), the Board modified the judge's recommended order by requiring the Respondent, upon Cornell's request, to administer the welding test to determine if he was qualified to perform welding work at the Hawesville facility from July through August 1996. The Respondent will be required to offer Cornell employment and make-whole relief based on the outcome of the test, as determined in the compliance stage pursuant to Dean General Contractors, 285 NLRB 573 (1987). The Board remanded the allegations that the Respondent violated Section 8(a)(3) and (1) by refusing to hire Mitch Dotson and Robert Young to the judge for further consideration under the FES framework.

For the reasons set forth in his dissents in Ferguson Electric Co., 330 NLRB No. 75 (2000) and Tualitin Electric, 331 NLRB No. 6 (2000), Member Hurtgen disagrees with Dean, at least as applied to "salt" situations and believes it is appropriate instead to place on the union the burden of producing evidence that the "salt" would have gone on to subsequent jobs if he had not been discharged.

(Members Liebman, Hurtgen, and Walsh participated.)

Charges filed by the Boilermakers International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Owensboro, May 5-7, 1998 and June 23-25, 1998. Adm. Law Judge Karl H. Buschmann issued his decision July 23, 1999.

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L & BF, Inc. (9-CA-35052; 333 NLRB No. 36) Hanging Rock, OH Feb. 8, 2001. Affirming the administrative law judge's finding that the Respondent lawfully discharged seven employees who refused its request to undergo mandatory respirator fitness testing, the Board dismissed the complaint alleging that the Respondent violated Section 8(a)(1) of the Act by discharging the employees because they engaged in protected concerted activity, i.e., concertedly refusing to work around dangerous chemicals unless they received proper training and physical examinations. [HTML] [PDF]

The Respondent provides maintenance and construction services to Dow Chemical. Its contract with Dow requires that all employees participate in the respirator fitness testing, a prerequisite for future work assignments. The judge found that the record did not establish any actual failure to perform work around dangerous chemicals, thus, there is no Section 502 issue. He found Union Boiler Co., 213 NLRB 818 (1974), and Sargent Electric Co., 237 NLRB 1545 (1978), cited by the General Counsel, to be inapposite because in those cases the employees refused to perform work due to what they perceived, at the time of refusal, to be unsafe working conditions. In this case, the employees had not been assigned any work to which they objected and were not contending that they should not receive respirator fitness testing nor that such testing was unnecessary, the judge noted. Rather, they refused the testing in an effort to compel Respondent to agree to their demand for more extensive testing and training. The Respondent refused their demand. The judge held:

"In arguing that this violated the Act, the General Counsel is effectively arguing that Respondent was obligated either to accede to the demand of the employees for more extensive testing and training or cease demanding that the employees comply with its requirement that they take the respirator test. I find no case authority for this proposition."

(Members Liebman, Hurtgen, and Walsh participated.)

Charge filed by Charles Murnahan, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Ironton, April 29-30 and May 1, 1998. Adm. Law Judge George Carson II issued his decision July 2, 1998.

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Wayne County Neighborhood Legal Services, Inc. (7-CA-37894, 7-RC-20650; 333 NLRB No. 15) Detroit, MI Jan. 31, 2001. Reversing the administrative law judge, the Board majority of Chairman Truesdale and Member Hurtgen found the Respondent violated Section 8(a)(2) and (1) of the Act by continuing to recognize the incumbent union Organized Workers of Legal Services Local 2 (OWLS II), after it lost a September 13, 1995 election and failed to garner enough votes to be on the ballot in a runoff election. Of 106 eligible votes, 38 employees voted for the Office and Professional Employees International Union Local 42, 19 voted for OWLS II, and 20 voted for no union. In the runoff election, 17 votes were cast for and 38 against OPEIU, with 6 challenges. In the judge's view, OWLS II had not been decertified before the December 1995 runoff election because not until then would the employees make their ultimate choice between OPEIU Local 42 and no union. He thought the intent of the Act would best be served by maintaining the existing collective- bargaining relationship during the period before the runoff. [HTML] [PDF]

The majority, however, agreed with the General Counsel's exceptions that when OWLS II was eliminated from contention as a result of the first election, the Respondent violated the Act by continuing to recognize the incumbent union and deduct dues. The majority said "an employer may not lawfully continue to recognize a union as the exclusive bargaining representative of its employees when the employer has objective evidence that the union no longer represents a majority of the employees. An employer that continues to recognize a union that has lost its majority status violates Section 8(a)(2)."

In dissent, Member Liebman contended "the wiser course is for the incumbent union to remain the representative of the employees, even if it loses an initial election, until the representation question is resolved and a certification issued. During that interim period, any contract between the employer and the incumbent union would remain in effect." She pointed out that the first vote results were inconclusive and left the question concerning representation unresolved. "The flaw in the majority's reasoning is that a majority of unit employees did not vote against union representation," she said.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges by OPEIU Local 42; complaint alleged violation of Section 8(a)(1) and (2). Hearing at Detroit, April 8, 1996. Adm. Law Judge Robert T. Wallace issued his decision May 1, 1996.

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Ebenezer Rail Car Services, Inc. (3-CA-21809; 333 NLRB No. 18) West Seneca, NY Jan. 31, 2001. The Board majority of Chairman Truesdale and Member Liebman upheld the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) by laying off 10 employees without adequate notice to the Union and without affording the Union an opportunity to bargain over the layoff decision and the effects of that decision. Although the judge analyzed the Section 8(a)(5) violation under Lapeer Foundry & Machine, 289 NLRB 952 (1988), the Board said, "his recommended remedy is couched in terms of a traditional make-whole remedy for the laid-off employees." Accordingly, the Board modified that remedy, to make it consistent with that ordered in Lapeer. The majority explained in a footnote that under Lapeer, "the traditional and appropriate Board remedy for an unlawful unilateral layoff based on legitimate economic concerns includes ordering the employer to bargain over the layoff decision and the effects of that decision, reinstating the laid-off employees, and requiring the payment to the laid-off employees of full backpay, plus interest, for the duration of the layoff." [HTML] [PDF]

Dissenting in part, Member Hurtgen disagreed with the view of the General Counsel and majority that a statement by manager Grainer to employee Piazza after the Union won the election was threatening and coercive in violation of Section 8(a)(1) of the Act. Piazza had shaken hands with Grainer and said, "It could be worse." Grainer replied: "You are going to regret this all year." Member Hurtgen said Grainer's statement was "ambiguous and far too vague to constitute a threat."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by UAW; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Buffalo, July 19-21, 1999. Adm. Law Judge Bruce D. Rosenstein issued his decision Nov. 22, 1999.

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Belle of Sioux City (18-CA-14633; 333 NLRB No. 13) Sioux City, IA Jan. 31, 2001. The Board affirmed the administrative law judge's findings that the Respondent, which operates a casino on a boat, engaged in a number of unlawful retaliatory personnel actions against employees for exercising their rights to engage in protected, concerted activity under Section 7 of the Act. The unlawful conduct, included suspending an employee, discharging another employee, interrogating and threatening employees for engaging in communications with other employees about employment terms and conditions. No union was involved in the events underlying the unlawful acts. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Walsh participated.)

Charge filed by Workers Have Rights Too (Fair Deal Unit); complaint alleged violation of Section 8(a)(1) and (4). Hearing at Sioux City, July 14-17 and Aug. 11 and 12, 1998. Adm. Law Judge William J. Pannier III issued his decision April 12, 1999.

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Pepsi-Cola Company (22-CA-21941; 333 NLRB No. 9) Piscataway, NJ Jan. 26, 2001. Affirming the administrative law judge's supplemental decision, the Board dismissed the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging shop steward Sean Reilly because of his activities for Teamsters Local 125, and violated Section 8(a)(1) by engaging in unlawful surveillance. In an earlier decision (330 NLRB No. 69 (2000)), the Board remanded the proceeding to the judge for a further analysis under the test enunciated in NLRB v. Burnup & Sims, 379 U.S. 21 (1964). Applying that standard, the judge concluded on remand that the Respondent presented sufficient credible evidence that it had an honest belief that Reilly engaged in the misconduct attributed to him (calling for a work stoppage in violation of the collective-bargaining agreement); and that the General Counsel failed to carry his burden of showing that Reilly did not engage in the misconduct. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Adm. Law Judge Raymond P. Green issued his supplemental decision Feb. 1, 2000.

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Demi's Leather Corp. (3-CA-17149, et al.; 333 NLRB No. 12) Johnstown, NY Jan. 26, 2001. The Board granted the General Counsel's motion for partial summary judgment as to paragraphs 4, 7, 8(a), 10(a), and 10(b) of the compliance specification and motion to strike the Respondent's affirmative defenses to those paragraphs and its contentions that: (a) it should be credited for unemployment funds discriminatee Anthony Valovic III received and for "income [Gregory Handy received] from other sources which made him financially independent," and (b) discriminatee Alan McArthur's backpay should be limited to the difference between interim earnings and gross backpay for the entire backpay period, rather than computed on a quarterly basis. The Board remanded the proceeding to the Regional Director to schedule a hearing on the issues properly raised by the Respondent's answer to the compliance specification. The Board's decision and order in the underlying unfair labor practice proceeding is reported at 321 NLRB 966 (1996). [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Walsh participated.)

General Counsel filed motion for partial summary judgment and to strike certain affirmative defenses on June 24, 1999.

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Alex R. Thomas & Co. (20-CA-28296; 333 NLRB No. 17) Ukiah, CA Jan. 31, 2001. Affirming the administrative law judge's decision, the Board dismissed complaint allegations that the Respondent violated Section 8(a)(1) of the Act by laying off Rosa Mireles and her sister Hilda Mireles and refusing to rehire them because of their protected concerted activities in complaining about R. Mireles' box count, overtime rate, and failure to receive a bonus. The Respondent is engaged in the packing of pears. It claimed that the Mireles sisters voluntarily quit at the end of the 1997 harvest season and were not invited to work the 1998 season in accord with company policy not to extend invitations to individuals who voluntarily quit. The judge found that the General Counsel failed to present a prima facie showing sufficient to support the inference that the sisters engaged in concerted protected activities and, assuming arguendo they did, they were not laid off or otherwise terminated because of such conduct. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Rosa Mireles, an individual; complaint alleged violation of Section 8(a)(1). Hearing at San Francisco, July 1-2 and 9, 1998. Adm. Law Judge Joan Wieder issued her decision Sept. 24, 1998.

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Glass & Pottery Workers (Olympian Precast, Inc.) (19-CD-481; 333 NLRB No. 16) Seattle, WA Jan. 30, 2001. The Board determined that Olympian's employees represented by Glass & Pottery Workers rather than those represented by Cement Masons Local 528 are entitled to perform the warranty and repair work (includes sandblasting, concrete cutting, patching, etching, and related tasks) on architectural precast concrete building components supplied by Olympian Precast at the Washington State convention center being built in Seattle, Washington. In making its award, the Board relied on the Glass & Pottery Workers and Olympian's collective-bargaining agreement, Employer's preference and current assignment, past practice, economy and efficiency of operations, and skills and training. [HTML] [PDF]

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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BKN, Inc. (31-RC-7716; 333 NLRB No. 14) Los Angeles, CA Jan. 31, 2001. Affirming the Regional Director, the Board held that the Employer's freelance writers, artists, and designers are employees within the meaning of Section 2(3) of the Act. Along with various designers and artists who are permanent employees, the Union is seeking to represent writers, artists, and designers who, the Employer contended, are "freelance" and independent contractors. [HTML] [PDF]

In determining whether an individual is an employee or an independent contractor under Section 2(3), the Board applies the common-law agency test and considers all the incidents of the individual's relationship to the employing entity. Roadway Package System, 326 NLRB 842 (1998). The Board asserted that the multifactor analysis set forth in Restatement (Second) of Agency, Section 220 includes factors to be examined and that no single factor is controlling in making this determination. In the instant case regarding the writers, the Board wrote:

Here, the Regional Director found that there is no doubt that the work tasks performed by the writers are governed by the Employer, and that the BKN production team is responsible for the supervision of the script writing. The Regional Director noted it was the norm in this industry for the writers to work out of their homes and to be paid on a project-by-project basis. He concluded that given the frequency of the "freelance" working arrangement in the animation entertainment industry, and "the Board's public policy interest in not disenfranchising workers simply because of the peculiarities of their trade," the "Restatement scales" tipped in favor of finding the writers to be statutory employees.

(Chairman Truesdale and Members Liebman and Walsh participated.)

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Foreign and Domestic Car Service, Inc. (14-RC-12171; 333 NLRB No. 11) Venice, IL Jan. 31, 2001. In deciding the matter of jurisdiction, the Board held that Foreign and Domestic Car Service (FDSC) is engaged in interstate common carriage to bring it within the jurisdiction of the National Mediation Board (NMB) under Section 201 Title II of the Railway Labor Act (RLA). The Board dismissed the petition filed by Teamsters Local 604, relying on the NMB's opinion that the work in question is traditionally done by carriers and that Norfolk Southern Corporation (NSC), a carrier, exercises "substantial control" over FDCS and its employees, and in its view, FDCS is subject to the RLA. [HTML] [PDF]

The Teamsters sought to represent all rail loaders, unloaders, and scanners employed by FDCS at NSC's Venice facility. FDCS asserted it provides rail loading services to NSC, a common carrier subject to the jurisdiction of the RLA, that the services it provides are those traditionally done by railroad employees, and that the Board lacks jurisdiction under Section 2(2) of the National Labor Relations Act.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

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Rochester Telephone Corp. (3-CA-20004-2; 333 NLRB No. 3) Rochester, NY Jan. 20, 2001. Affirming the administrative law judge's conclusion that the parties reached a bargaining impasse, the Board dismissed the complaint alleging the Respondent violated Section 8(a)(5) and (1) of the Act by prematurely declaring in April 1996 that its negotiations for a successor collective-bargaining agreement with Communications Workers Local 1170 had reached an impasse, and unilaterally implementing its last bargaining proposal. [HTML] [PDF]

The Board agreed with the judge that the Union's counterproposal of April 8, 1996, under all the circumstances, did not create a "reason to believe that further bargaining might produce additional movement" by either party, citing Hayward Dodge, Inc., 292 NLRB 434 (1989). It repudiated his suggestion that the "central inquiry" in determining the existence of an impasse is "whether the Union made sufficient progress in meeting the Company's perceived needs and goals" by its counterproposals and by other actions. The Board agreed with the judge that Serramonte Oldsmobile, 318 NLRB 80 (1995), enf. denied in part 86 F.3d 227 (D.C. Cir. 1996), is distinguishable from this case, and it did not rely on his analysis and application of that decision to the facts here. Contrary to the judge, it did not rely on the fact that the Union was engaged in a campaign to generate public support for its bargaining positions as evidence of an impasse.

Member Hurtgen believes that whether an impasse exists requires a multifactor test, which is highly fact and circumstances driven. He does not agree that the selective criteria set forth in this decision's footnote are necessarily determinative of the issue. See his dissent in Grinnell Fire Protection Systems Co., 328 NLRB No. 76, slip op. at 4-7 (1999).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Communications Workers Local 1170; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Rochester, May 19-23 and June 16-18, 1997. Adm. Law Judge Robert T. Snyder issued his decision Oct. 30, 1998.

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Techno Construction Corp. and Janco Contracting Corp. (29-CA-20330, et al.; 333 NLRB No. 5) Staten Island, NY Jan. 23, 2001. The Board agreed with the administrative law judge that the Respondents are a single employer and that, based on its Section 8(f) relationship with Teamsters Local 282, the Respondent did not violate Section 8(a)(5) of the Act by withdrawing recognition from the Union at the time of the 1996 collective-bargaining agreement; and that the Respondent did not violate Section 8(a)(1) by informing employees of the intended withdrawal. [HTML] [PDF]

Chairman Truesdale and Member Walsh affirmed, under a different rationale, the judge's finding that the Respondents violated Section 8(a)(3) by temporarily laying off drivers Fred Shaaf, Earl Eddy, Thomas Kish, and Richard Marotta. The judge found the layoff constituted an unlawful "defensive" lockout because the Respondent locked out its drivers in anticipation of a strike or concerted work stoppage. Chairman Truesdale and Member Walsh agreed however with the General Counsel that the Respondents temporarily laid off the drivers in retaliation for their expression of desire for continued representation.

Member Hurtgen disagreed, finding nothing in the Respondent's June 28, 1996 discussion with its drivers, the catalyst that prompted the temporary layoff, established the requisite unlawful motive. He concluded the "Respondent's lawful condition of employment was that there would be no Union; the employees were unwilling to work under that condition. Faced with this, the Respondent lawfully laid them off."

Chairman Truesdale and Member Walsh noted that the employees did not quit and did not insist on the Respondent's recognition of the Union as a condition for continuing to work. "There is no evidence that the Respondent viewed the employees' statements in the manner suggested by the dissent," they wrote, adding: "Instead, as accurately summarized by the judge, [Techno's co-owner] Mutino testified 'that he understood their responses as being ambiguous and indicating that there might be a general strike.' We have found that the Respondent's reliance on the professed apprehension of a strike-the only reason offered by the Respondent for its layoff action-was pretextual."

(Chairman Truesdale and Members Hurtgen and Walsh participated.)

Charges filed by Teamsters Local 282; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Brooklyn, March 4-6, 1997. Adm. Law Judge Raymond P. Green issued his decision June 20, 1997.

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Asbestos Services, Inc., d/b/a A.S.I., Inc. (31-CA-23691; 333 NLRB No. 6) Bakersfield, CA Jan. 22, 2001. The Board affirmed the administrative law judge's recommended dismissal of the complaint alleging that the Respondent interrogated Wayde Nelson about his union activities, threatened employees with layoff and plant closure because Nelson had filed complaints with government agencies, and discharged and refused to reinstate Nelson to his former position. [HTML] [PDF]

The judge found that the Respondent would have discharged Nelson even in the absence of his protected concerted activity for several reasons, including working at an unprofitable level, stealing from the property of customers, failing to inform management as required of any safety hazards, disturbing relationships with customers that could significantly affect Respondent's business, and complaining to the legal department at Vandenburg Air Force Base about the Respondent's alleged noncompliance with the Davis-Bacon Act. The Board noted that the judge discredited Nelson's claim that he spoke to other employees and although Nelson's activity at Vandenburg AFB may have been protected, it was not concerted. Meyers Industries, 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 987), cert. denied sub nom. Meyers Industries v. NLRB, 487 U.S. 1207 (1988).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Wayde Torrey Nelson; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Bakersfield, CA, Feb. 28-29, 2000. Adm. Law Judge Frederick C. Herzog issued his decision Sept. 11, 2000.

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Donald Sullivan & Sons, LLC (34-CA-8799-1, -2; 333 NLRB No. 7) Plantsville, CT Jan. 18, 2001. In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees John Ceraldi and Brian Ostroski because on February 5, 1999, they had applied for membership with Plumbers Local 777. The Respondent contended that the employees were not discharged but voluntarily quit their jobs on February 12. [HTML] [PDF]

Ceraldi and Ostroski were never disciplined during the approximately 3 years they were employed by the Respondent. Applying Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), the judge determined that the General Counsel made a prima facie showing sufficient to support the inference that union animus was the reason for the discharges. Additionally, the judge asserted that the proximity of the discharges in relation to the employees' union activities, and owner Martin Sullivan's words to Ceraldi and Ostroski on February 12 fully summarizes Respondent's motivation: "You joined the union, you're done."

(Members Liebman, Hurtgen, and Walsh participated.)

Charges filed by John Ceraldi and Brian Ostroski; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Hartford, Sept. 18, 19, and 21, 2000. Adm. Law Judge Margaret M. Kern issued her decision Oct. 6, 2000.

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Tecumseh Corrugated Box Company and Teamsters Local No. 436 (8-CA-29868, 8-CB-8624; 333 NLRB No. 1) Hebron, OH Jan. 12, 2001. Affirming the administrative law judge's recommendations, the Board dismissed the complaint allegations that Tecumseh violated Section 8(a)(1) and (2) of the Act by rendering unlawful aid, assistance, and support to the Teamsters and that the Teamsters violated Section 8(b)(1)(A) by accepting Tecumseh's assistance and support, and by obtaining and accepting its recognition. [HTML] [PDF]

Tecumseh is engaged in the manufacture and sale of corrugated paper and boxes at various locations in Ohio, including a plant in Hebron, Ohio, the facility at issue here. Since the 1970s, Tecumseh has maintained a collective-bargaining relationship with the Charging Party Paperworkers International (PACE) under which it represented Tecumseh's employees at its Tecumseh, Michigan, and Twinsburg, Perrysburg, and Vanwere, Ohio plants. Prior to its acquisition by Tecumseh, the Hebron plant was separately owned and operated as Custom Cartons.

The General Counsel cited four factors to support a finding that Tecumseh was not a neutral party but instead unlawfully aided and assisted the Teamsters. The General Counsel's arguments, rejected by the judge, are that Tecumseh (1) could have reasonably expected that the former Custom Carton employees would likely be interested in joining the bargaining unit represented by PACE at its other plants; (2) solicited the Teamsters to organize the employees; (3) implicitly conveyed its preference for the Teamsters; and (4) immediately granted recognition to the Teamsters after performing its own card check.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by the Paperworkers International (PACE). Hearing at Cleveland, June 9, 1999. Judge George Aleman issued his decision October 22, 1999.

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J.I.T. Steel, Inc. (32-CA-17346; 332 NLRB No. 167) Tulare, CA Jan. 8, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing a warning to employee Danny Romero on April 8, 1999. Although Romero had a history of absenteeism and tardiness, the judge found that the timing of this warning leads to a strong inference that Romero's union activities and the union's filing of an unfair labor practice charge and a representation petition were the motivating factors for the disciplinary warning. He found that the Respondent failed to establish that it would have issued the warning in the absence of Romero's protected activities, noting that Romero did not engage in any intervening misconduct between a lawful warning on March 15, 1999 and the warning of April 8. "The only intervening fact was the filing of the charge and petition," the judge wrote. [HTML] [PDF]

The judge determined that the General Counsel made a prima facie showing that the Respondent, in issuing a warning to Rudy Ramirez, was motivated by unlawful considerations. He also found that the Respondent established that Ramirez was disciplined for making an error in receiving commercial steel as structural steel and would have been disciplined absent his union activities.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by the Steelworkers; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Clovis, CA Oct. 19-22, 1999. Adm. Law Judge Jay R. Pollack issued his decision Sept. 11, 2000.

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Ryder Student Transportation (18-CA-15176; 333 NLRB No. 2) St. Paul, MN Jan. 12, 2001. The Board upheld the administrative law judge's decision that the Respondent violated Section 8(a)(1) of the Act by maintaining and enforcing an unwritten no-access policy that prohibits its employees from having access to and distributing union literature at its terminals unless they worked at them and/or prohibiting employees from entering the property of their own terminal at times when they are not scheduled to work; and telling employees it would not bargain in good faith if School Service Employees Local 284, SEIU was elected and that bargaining would be futile. [HTML] [PDF]

The judge, applying Tri-County Medical Center, 222 NLRB 1089 (1976), found the Respondent's policy was not valid because it does not limit access solely to the interior of the plant and other working areas and it has not been clearly disseminated to all employees. He found also that the policy has been applied primarily to employees engaging in union activity and, other than generalized testimony about the reason the policy was promulgated 10 years ago, there was no evidence of any incidents of workplace violence or security/safety problems that would justify such a broad sweeping rule. . (Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by School Service Employees Local 284, SEIU; complaint alleged violation of Section 8(a)(1). Hearing at Minneapolis on April 4, 2000. Adm. Law Judge C. Richard Miserendino issued his decision August 14, 2000.

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American Opera Musical Theatre Co. (2-CA-32154; 332 NLRB No. 173) New York, NY Jan. 8, 2001. Agreeing with the administrative law judge, the Board held that the Respondent withdrew its previously granted recognition of Associated Musicians of Greater New York Local 802 and refused to bargain further with the Union in violation of Section 8(a)(5) and (1) of the Act. The Respondent had alleged there was no proper request for recognition because the Union never specifically requested recognition as the representative of the Respondent's employees and never demonstrated its majority status. The judge rejected both defenses. [HTML] [PDF]

The Respondent excepted to the judge's failure to find that the Union never identified any geographical boundaries for its proposed bargaining unit. Rejecting this argument, the Board noted the judge found appropriate a unit of the Respondent's musicians and the Respondent did not question the Union's demand for recognition in a unit of its musicians at the time the demand was made.

Member Hurtgen set forth some other views regarding the unit's composition such as the General Counsel's allegation the unit included musicians, contractors, and librarians. There was no evidence that the Respondent employs librarians, Member Hurtgen noted. And, at the time of recognition, there was a contractor, who was in charge of seeking out musicians for hire; there is no contention that she was a supervisor. Although the Respondent now contends that "student musicians"-who are retained when the Respondent's opera company travels to other cities- must be a part of an appropriate unit, it alleges no evidence to support this view, he explained.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Associated Musicians of Greater New York Local 802; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on Dec. 1, 1999. Adm. Law Judge Joel P. Biblowitz issued his decision March 1, 2000.

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RGC (USA) Mineral Sands, Inc. (12-CA-19258, et al.; 332 NLRB No. 172) Green Cove Springs, FL Jan. 10, 2001. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by assigning certain of its maintenance mechanics to a rotating 24-hour shift in October and December 1997 after employees rejected the Respondent's shift-assignment proposal that eliminated seniority; that an employee strike in August 1998 was an unfair labor practice strike because the unlawful shift assignments were integrally linked with the breakdown in negotiations and a contributing factor in the employees' decision to strike; and that the Respondent's refusal to reinstate the strikers on their unconditional offer to return to work violated Section 8(a)(3) and (1), as alleged. The Respondent argued that the shift assignments in October and December 1997 were too remote in time to be considered a cause of the strike in August. [HTML] [PDF]

No exceptions were filed to the judge's findings that the Respondent violated Section 8(a)(1) by threatening an employee with legal action because of his concerted activity, telling employees it was improper to make safety complaints, interrogating an employee about his filing an unfair labor practice charge, creating an impression of surveillance of employees' union activities, preventing a union steward from coming onto the Respondent's property to investigate potential grievances and working conditions, conducting an interview with an employee and refusing the employee's request to consult with a union representative, and refusing to accept employee. There were also no exceptions to the judge's findings that the Respondent unlawfully issued disciplinary warnings to employees Howard Knowles, Jr. and Jeffrey Tillis, and that the Respondent unlawfully suspended and terminated Knowles.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Machinists District 112; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Jacksonville, May 24-27, 1999. Adm. Law Judge Howard I. Grossman issued his decision Nov. 5, 1999.

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FES (a Division of Thermo Power) (5-CA-26276; 333 NLRB No. 8) York, PA Jan. 19, 2001. The Board, concluding that the Respondent's exceptions lack merit because they raise no issue not previously considered, affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire nine union applicants for employment. [HTML] [PDF]

In a prior decision, the Board set forth the framework for analysis of refusal-to-consider and refusal-to-hire allegations, affirmed the judge's finding that the Respondent unlawfully refused to consider the nine applicants for employment, and remanded the case for further consideration of the refusal-to-hire allegations applying the new framework. It rejected, as did the judge, the Respondent's "wage compatibility" criterion as a defense. The Board limited consideration of the criterion to those facts already found by the judge and did not allow reopening of the record on the issue. 331 NLRB No. 20 (2000).

In his supplemental decision, the judge found, based on all-party stipulations, that there was an available job opening for each applicant. The Respondent stipulated that it rejected the applicants based on the lack of "wage compatibility" and that it would raise no new defenses. The judge, citing the Board's decision, would not reopen the record to receive further evidence on the issue. In its exceptions, the Respondent argued that the judge erred in limiting the evidence it could present in support of its wage compatibility defense.

The Board limited its review of the judge's supplemental decision to the issues raised by the Respondent's exceptions, stating: "We do not necessarily agree with the judge's discussion of what other defenses (apart from the 'wage compatibility' defense) he would have entertained. In the absence of exceptions, we do not pass on this aspect of the judge's rationale."

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Adm. Law Judge Arthur J. Amchan issued his supplemental decision Nov. 8, 2000.

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Avante at Boca Raton, and Avante Terrace at Boca Raton, Inc., Joint Employers (12-CA-18720, 18996; 332 NLRB No. 174) Miami, FL Jan. 10, 2001. The administrative law judge concluded, and the Board agreed, that the Respondent violated Section 8(a)(4), (3), and (1) of the Act by warning, suspending, and discharging Certified Nursing Assistant (CNA) Evanette Cyriague because she engaged in union and other protected concerted activities and appeared at a Board representation hearing. Under the framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), the judge found that the Respondent's actions against Cyriague were pretextual and motivated by union animus and that the Respondent failed to establish that it would have taken the same actions in the absence of Cyriague's protected activities. [HTML] [PDF]

The judge concluded, contrary to the Respondent's contention that Cyriague was discharged for dishonesty, that she was "pretextually terminated" for a purported lie she never uttered after the Respondent saw her with a union representative. He concluded Administrator Manzo singled out Cyriague and suspended her for 3 days because of her leadership in the CNA's concerted work stoppage and her involvement in "selling" Avante to the Union, and not for insubordination, as the Respondent contended. Manzo also directed that Cyriague be issued a warning "any way" after he observed her in the parking lot-even though he knew she was on break and did not need permission to be outside the facility-in retaliation for her appearance on the Union's behalf at the representation hearing.

The judge determined, with Board approval, that the General Counsel did not prove that the evidence supported a finding that the Respondent engaged in surveillance of employee union activities, and dismissed that portion of the complaint.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Service Employees Local 1115-Florida East; complaint alleged violation of section 8(a)(1), (3), and (4). Hearing at Miami, Feb. 8-9, 1999. Adm. Law Judge George Carson II issued his decision March 31, 1999.

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Reese M. Garab d/b/a South Alabama Plumbing (15-CA-14342; 333 NLRB No. 4) Atmore, AL Jan. 18, 2001. The Board, after considering the Respondent's affirmative defenses on their merits, agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by repudiating an 8(f) contract in April 1997 and withdrawing recognition from Plumbers Local 119. The judge had dismissed the Respondent's two affirmative defenses, commenting that the Respondent should have filed unfair labor practice charges but had not. Citing Chicago Tribune Co., 304 NLRB 259 (1991), the Board noted that it must consider a party's affirmative defenses despite the fact that the General Counsel has considered the same evidence and refused to issue complaint. [HTML] [PDF]

In its affirmative defenses, the Respondent asserted that the contract contains an illegal union-security provision, establishes a virtual closed shop, and is, therefore, unenforceable. It alleged also that the contract does not comply with Section 8(f) because it is not limited to construction work, claiming that certain words in the "Trade or Work Justification" clause of the contract encompasses nonconstruction work such as, among other things, "manufacture," "drawings," "adjusting," and "fabrication" of plumbing work.

The Board disavowed the judge's "unnecessary" remarks about the possibility of indexing the Board's discretionary jurisdictional standards to the rate of inflation. And, it amended his remedy to provide that the Respondent is liable for honoring the July 15, 1996-July 14, 1998 collective-bargaining agreement for its term, as well as any automatic renewal or extension of the contract. The Charging Party contended in its cross-exceptions that the Respondent is bound to the successor contract expiring on July 14, 2000. The Board left the issue for resolution at the compliance stage of this proceeding. There the Respondent will be permitted to show that the contract contains an illegal union-security clause that should be excised. Although the Board made no final determination, it questioned whether the clause is in fact a union-security provision, noting that the Respondent is located in a right-to-work State.

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charge filed by Plumbers Local 119; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Mobile, May 6-7, 1998. Adm. Law Judge Richard J. Linton issued his decision Oct. 16, 1998.

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Allied Mechanical Services (7-CA-38022, et al.; 332 NLRB No. 171) Kalamazoo, MI Jan. 5, 2001. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(5), (3) and (1) of the Act in various respects, including: failing to bargain in good faith by engaging in overall conduct during negotiations and away from the bargaining table, including statements that it had no intention of ever executing a contract with Plumbers Local 337; failing to provide the Union with requested information regarding COBRA insurance coverage for two employees, which was necessary and relevant in the performance of its duties; bypassing the Union and dealing directly with employees with regard to a new health insurance plan; unilaterally making changes in terms and conditions of employment after voluntarily recognizing Plumbers Local 337 as the exclusive representative of certain employees without notice to or bargaining with the Union; and terminating Todd Hayes, Jeff Kiss, Mark Lemmer, Ron Parlin, Jeff Warren, and Kirk Wood because they engaged in an unfair labor practice strike. [HTML] [PDF]

The Board modified the judge's recommended Order to delete the requirement that the Respondent furnish copies of evaluations for Hayes, Kiss, Lemmer, Parlin, Warren, and Wood, noting the judge's finding that the record failed to show any independent violation of the Act based on the Respondent's failure to prepare their evaluations. It found merit in a Respondent exception arguing that there is no factual basis for the judge's conclusion - that it failed to respond to the Union's request for a copy of its emergency action plans - and corresponding remedy - that the Respondent be ordered to furnish the Union with a copy of its emergency action plan. The requirement was deleted from the judge's recommended Order. Member Hurtgen would include the "mediation" remedy he advocated in Altorfer Machinery Co., 332 NLRB No. 12 (2000), and Burrows Paper Corp., 332 NLRB No. 15 (2000). He would also add to paragraph 2(f) of the Order, which permits the Union to choose between retaining a given unilateral change or rejecting it, the option of having the change apply to some employees (e.g., extant employees), but not apply to others (new employees).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

Charges filed by Plumbers Local 337; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Grand Rapids, Feb. 11-14 and Sept. 15-16, 1997. Adm. Law Judge Richard H. Beddow, Jr. issued his decision Feb. 9, 1998.

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Aroostock County Regional Ophthalmology Center (1-CA-29433, 29434; 332 NLRB No. 164) Presque Isle, ME Jan. 8, 2001. The Board granted the General Counsel's motion to strike certain portions of the Respondent's amended answer to the compliance specification, including the denial that the Respondent discriminated against Jacquelyn Shepard and Sheila Belle-Isle, the assertions that backpay to Shepard and Belle-Isle is barred by Section 10(c), and the assertions that the formula in F.W. Woolworth Co., 90 NLRB 289 (1950), used to calculate backpay is inappropriate. It granted the General Counsel's motion for partial summary judgment with respect to, among other things, the definitions of gross earnings with the exception of the cash value of the Hawaii trip (pars. 1 and 2), the allegation that Shepard and Belle-Isle were entitled to an annual Christmas bonus in the amounts and years as alleged in paragraph 5, and the allegation that the Respondent maintained medical and profit-sharing plans. Member Hurtgen, finding that the matter raised factual issues, would not grant summary judgment as to the issue of whether there is a financial need to amortize the payment of the cash value of the Hawaii trips. [HTML] [PDF]

The Board incorporated, into the answer, the Respondent's arguments and tables setting forth its asserted gross backpay and interim earnings for Shepard and Belle-Isle. It denied the Respondent's request that the Board order Region 1 to amend the specification, noting that the Respondent may litigate the matters at the compliance hearing. The proceeding was remanded to the Regional Director to arrange a hearing before an administrative law judge limited to those paragraphs of the compliance specification as to which summary judgment was not granted.

In the prior proceeding, the Board ordered the Respondent to make whole Shepard and Belle-Isle for any loss of earnings that they may have suffered as a result of the Respondent's unfair labor practices against them in violation of Section 8(a)(1) of the Act. 317 NLRB 218 (1995). On April 12, 1996, the U.S. Court of Appeals for the District of Columbia enforced the Board's order in relevant part. 81 F.3d 209 (D.C. Cir. 1996).

(Chairman Truesdale and Members Liebman and Hurtgen participated.)

General Counsel's motion to strike portions of Respondent's answer to compliance specification and for partial summary judgment filed Feb. 28, 2000.