NLRB Decisions - 2001 July-December

Benesight, Inc., f/k/a The TPA, Inc., and/or The Third Party Administrators, Inc. (27-CA-16932-1; 337 NLRB No. 40) Pueblo, CO Dec. 20, 2001. The Board agreed with the administrative law judge's finding that the Respondent unlawfully discharged employees Hayes, Mercado, and Chavez, and disciplined eight other employees for engaging in a protected work stoppage on April 10, 2000. The Board rejected the Respondent's defense that the decision in Bob Evans Farms, Inc. v. NLRB, 163 F.3d 1012 (1998), "imposes a 'proportionality obligation on employees engaging in the kind of unannounced work stoppage pursued in this case.'" It held: "Respondent argues that employees lose the protection of the Act if they use a disproportionate means to protest a working condition. On this view, because the Respondent contends that the work stoppage here was an over-reaction to the employees' grievance, it argues that it was free to discharge them." [HTML] [PDF]

The majority of Members Liebman and Walsh reversed the judge's finding that the Respondent independently violated Section 8(a) (1) by telling employee Mercado that she had been terminated for engaging in protected, concerted activity. The judge found that Manager Potestio told Mercado on the day after the walkout that based on her participation in it she had been insubordinate and was terminated. Although the judge determined that Potestio's statement was proof that the discharge was unlawful, he concluded that this statement was subsumed by the discharge violation.

Dissenting in part, Chairman Hurtgen, while agreeing with his colleagues that the Respondent violated Section 8(a)(1) by terminating Mercado, for engaging in a protected work stoppage, would find - as did the judge - that Potestio's statement did not independently violate Section 8(a)(1), or call for an additional remedy. He concluded that "Potestio's statement was part of the res gestae of the unlawful termination, and is subsumed by that violation. Further, the remedy for that violation adequately insures employees of their statutory rights."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Anna Marie Chavez, Laura, Hayes, and Beatriz Mercado (Individuals); complaint alleged violation of Section 8(a)(1). Hearing at Pueblo, Nov. 28, 2000. Adm. Law Judge James L. Rose issued his decision Feb. 9, 2001.

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Kolin Plumbing Corp.; Kolin Environmental, Inc.; H. Kolin Plumbing Corp.; H. Kolin Environmental, Inc.; Dial-A-Water- Heater, Inc.; and MSJ Enterprises, Ltd. (29-CA-17195, 17340; 337 NLRB No. 34) Deer Park, NY Dec. 20, 2001. The Board granted the General Counsel's motion for summary judgment against Respondents Kolin Plumbing, Kolin Environmental, and its single employer, alter ego, and successor H. Kolin Environmental (collectively called Respondent Companies), and remanded for hearing the issues of interim earnings and medical expenses timely raised by Respondents H. Kolin Plumbing, Dial-A-Water-Heater, and MSJ Enterprises (collectively called additional Respondents). It held in abeyance the final backpay liability determination at this time. [HTML] [PDF]

In a 1998 unpublished Order, the Board directed the Respondents to offer full and immediate reinstatement to John J. Demsheck Jr., James Ott, and Donald C. Muller; to make them whole for loss of earnings and other benefits resulting from the discrimination against them; to make whole the Respondents' employees and the benefit funds of Plumbers' Local 200; and to make their employees whole by reimbursing them for any losses ensuing from the Respondents' failure to make the contributions.

In the motion for summary judgment, the General Counsel contended that all six Respondents failed to file an answer to the amended compliance specification. The Board noted however that the additional Respondents filed a timely answer to the original compliance specification and their failure to file an answer to the amended compliance specification does not negate their timely filed answer. Accordingly, the Board limited the hearing to the determination of derivative liability, interim earnings, and medical expenses with regard to the additional Respondents but stated that its ruling does not permit the Respondent Companies to participate in that hearing. See Transportation by La Mar, 281 NLRB 508, 510 fn. 6 (1986).

(Chairman Hurtgen and Members Liebman and Walsh participated.)

General Counsel filed a motion for summary judgment December 14, 1999.

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The Bakersfield Californian (31-CA-23978, 23979; 337 NLRB No. 42) Bakersfield, CA Dec. 20, 2001. The Board majority of Chairman Hurtgen and Member Walsh, affirming the administrative law judge, found no violation in the Respondent's posting of its last, best, and final offers which included a wholly discretionary merit wage and bonus program. The complaint alleged that the Respondent implemented its last, best and final offers in two separate bargaining units, on or about January 12 and 13, 1999, respectively. The complaint further alleged that those offers included a wholly discretionary merit wage and bonus provision. The complaint did not allege that the Respondent violated the Act by actually granting merit wage increases. [HTML] [PDF]

. . . [W]e agree with the judge that, under Woodland [Clinic, 331 NLRB No. 91 (2000)], the Respondent's postimpasse posting of its terms and conditions of employment on January 12 and 13 is not a basis for finding a violation under McClatchy. Unlike in Woodland, of course, the Respondent here has stipulated that it unilaterally granted wage increases pursuant to its final pre- impasse contractual wage proposal. The General Counsel, however, by failing to object when the judge stated that he was not going to consider events after January 12 and 13, has clearly acquiesced in the judge's limiting of the scope of the complaint to encompass only the Respondent's January 12 and 13 posting of the proposal.

Dissenting Member Liebman would find that the Respondent violated Section 8(a)(5) and (1) of the Act by implementing its wholly discretionary merit pay plan on January 12 and 13, 1999. She asserted:

My disagreement with my colleagues and the judge stems from my belief that Woodland, did not establish a per se rule that a McClatchy violation may never accrue prior to an employer's actual granting of discretionary merit increases. In my view, the Board may find in appropriate circumstances that an employer has 'implemented' a McClatchy-type merit pay proposal, even if the employer has yet to actually grant any increases. I would find that this is such a case.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Bakersfield Typographical Union No. 439; complaint alleged violation of Section 8(a)(5). Hearing at Bakersfield, Jan. 31, 2000. Adm. Law Judge Frederick C. Herzog issued his decision Oct. 17, 2000.

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Grinnell Fire Protection Systems Co. (5-CA-24521, et al.; 337 NLRB No. 22) Exeter, NH Dec. 20, 2001. In denying the Charging Parties' motion for clarification of its Decision and Order reported at 328 NLRB 585 (1999), enfd. 236 F.3d 187 (4th Cir. 2000), cert. denied 122 S. Ct. 49 (2001), the Board noted that the motion, though styled as one for clarification, may more accurately be described as one seeking additional substantive relief by asking the Board to change the Order that has already been enforced by the Fourth Circuit. It further noted that [HTML] [PDF]

The Board, however, is without authority to change such an order, as Section 10(e) of the Act provides that upon the filing of the record in a United States court of appeals, 'jurisdiction of the court shall be exclusive and its judgment and decree shall be final,' subject, of course, to review by the Supreme Court. . . . we no longer possess jurisdiction to modify that Order. Haddon House Food Products, 260 NLRB 1060 (1982); Royal Typewriter Co., 239 NLRB 1, (1978). See also NLRB v. Mastro Plastics Corp., 261 F.2d 147, 148 (2d Cir. 1958); cf. Flav-O- Rich, Inc. v. NLRB, 531 F.2d 358, 361 (6th Cir. 1976).

In addition to the procedural reasons relied on by his colleagues, Chairman Hurtgen would deny the Charging Parties motion on the merits.

The Charging Parties requested that the Board hold that the term "unit employees" in its Order to include not only "crossover" employees who continued to work during the nationwide unfair labor practice strike that was called on the night of April 12, 1994, but also strike replacements hired by the Respondent after the strike began. In its opposition, the Respondent contended that the strike replacements should not be included among the "unit employees" for purposes of the Board's Order.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Bricklayers Local #5-New Jersey and Bricklayers Local #2-New Jersey (4-CD-1021, et al.; 337 NLRB No. 28) Vineland, NJ Dec. 20, 2001. Chairman Hurtgen and Member Liebman concluded that employees of Jersey Panel Corp. represented by Plasterers Local 8, not Bricklayers Local #5 or Local #2, are entitled to perform the exterior plastering and insulation, and the installation of an exterior finishing system at the Sands Hotel and Casino and the Atlantic City Hilton Resort garage in Atlantic City, NJ. They limited the determination to the particular controversies that gave rise to this proceeding. The Employer and the Plasterers had contended that, based on the actions of the Bricklayers, a broad order with respect to plastering work in various New Jersey Counties is necessary to avoid similar jurisdictional disputes. Member Walsh did not participate in the decision on the merits. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Washoe Medical Center, Inc. (32-CA-17934-1, 18179-1; 337 NLRB No. 32) Reno, NV Dec. 20, 2001. Members Liebman and Walsh affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by continuing to unilaterally set starting wage rates for newly hired employees after the union election, without providing Operating Engineers Local 3 with advance notice and an opportunity to bargain about the wages. The majority agreed with the judge's application of Oneita Knitting Mills, 205 NLRB 500 (1973), finding the issue is whether the Respondent failed to provide the Union with advance notice and an opportunity to bargain about the implementation of discretionary wages rates, as required by Oneita. Like the judge, it found News Journal Co., 331 NLRB No. 177 (2000), where the Respondent unilaterally discontinued its practice of establishing discretionary starting wage rates for newly hired employees based on numerous criteria, is distinguishable. [HTML] [PDF]

Chairman Hurtgen, in dissent, would not affirm the judge's finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally setting the starting wage rates for newly hired employees. He noted that the Respondent's policy was to place a new employee into a particular quartile, based on objective criteria: professional qualifications, prior experience, and specialty certifications. The Respondent also determined the precise wage rate within the quartile, again based on objective criteria, i.e., comparing her to other employees of the Respondent in terms of skills, qualification and experience. "In my view, the Respondent was privileged, indeed required, to continue the status quo, pending bargaining with the Union. That is what the Respondent did."

The majority said, in agreeing with the judge that the Respondent's policy to place new employees in a quartile within the wage range for the relevant position is in no sense automatic: "Rather, it entails the application of a large measure of discretion. It is this substantial degree of discretion, as well as the unavoidable exercise of such discretion each time the Respondent establishes a wage rate for a new employee, that requires the Respondent to bargain with the Union, pursuant to the Board's holding in Oneita."

The Board affirmed the judge's recommended dismissal of the allegation that the Respondent unlawfully failed to bargain before-the-fact, i.e., before the planned imposition of specific discipline on particular employees. There were no exceptions to her recommended dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing its policy governing shift schedule changes in its labor and delivery department.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Operating Engineers Local 3; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Reno, Oct. 3-4, 2000. Adm. Law Judge Lana H. Parke issued her decision Dec. 14, 2000.

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TransMontaigne, Inc. (4-CA-27610; 337 NLRB No. 38) Philadelphia, PA Dec. 20, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to recognize and bargain with Teamsters Local 929, but it relied on a different rationale. [HTML] [PDF]

Louis Dreyfus Energy Corp. (LDEC) and the Union were parties to a collective-bargaining agreement from Dec. 1, 1995 to Nov. 30, 1998. On Oct. 30, 1998, the Respondent, through its wholly-owned subsidiary TransMontaigne Product Services, Inc. (TPSI), acquired all of LDEC's issued and outstanding capital stock. LDEC was renamed TransMontaigne Product Services East, Inc. (TPSE). Subsequently, TPSE was merged into TPSI and TPSE ceased to exist. The Respondent argued that it had no obligation to recognize and bargain with the Union, relying on article 2 of the agreement between LDEC and the Union, which states:

In the event of a bona fide sale of the assets or change in ownership, or in the event COMPANY ceases operation of the facility any successor COMPANY which purchases, acquires or becomes the EMPLOYER of EMPLOYEES presently covered by the Recognition clause [of the agreement] shall not be bound by this Recognition clause.

The judge, noting the stock transfer, found LDEC (TPSE) remained the same legal and employing entity, that successorship principles do not apply and thus the Respondent was not a "successor Company" within the meaning of article 2. Members Liebman and Walsh found, however, that the distinction between a stock purchaser and a successor is irrelevant because the issue is whether the Respondent was required to recognize and bargain with the Union, not whether the Respondent was obligated to abide by the terms of the collective-bargaining agreement (the General Counsel does not make this contention). They explained: "[T]he Union's right to recognition, as well as the Respondent's corresponding duties, are statutory, not contractual, in nature, regardless of whether the Respondent is regarded as a successor or the continuation of the same legal entity." Article 2 does not constitute a clear and unmistakable waiver of the Union's statutory right to recognition, Members Liebman and Walsh concluded.

Chairman Hurtgen, concurring in the result, applied the normal rules of contract interpretation rather than principles of waiver, finding it is appropriate, where, as here, the contract covers an issue. He wrote: "As I read the clause in question here, a 'successor COMPANY' is not bound to recognize the Union. Clearly, 'successor COMPANY' is not the same company as the original one, i.e., the one that entered into the collective- bargaining agreement with the Union. And it is equally clear, in the instant case, that the Respondent is the same company. The shareholders have changed, but the company has not. Thus, the clause does not defeat the bargaining obligation."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 929; complaint alleged violation of Section 8(a)(1) and (5). Adm. Law Judge Richard A. Scully issued his decision June 23, 2000.

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Waremart Foods d/b/a Winco Foods (20-CA-29332; 337 NLRB No. 41) Chico and Redding, CA Dec. 20, 2001. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by prohibiting nonemployee union representatives from engaging in consumer handbilling at the Respondent's Chico, CA store. The judge concluded that under California property law, the Respondent did not have a right to exclude union representatives from its property. Sears, Roebuck & Co. v. San Diego District Council of Carpenters, 25 Cal. 3d 317 (1979). The Board rejected the Respondent's arguments that California law itself is invalid because it (1) is preempted by the Act, (2) constitutes a denial of equal protection of the laws, in violation of the Fourteenth Amendment, and (3) constitutes a taking of property without just compensation, in violation of the Fifth Amendment. [HTML] [PDF]

There were no exceptions to the judge's recommended dismissal of the complaint's allegations involving union activity at the Respondent's Redding, CA store.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Food and Commercial Workers Local 588; complaint alleged violation of Section 8(a)(1). Adm. Law Judge William L. Schmidt issued his decision Sept. 25, 2000.

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Service Employees Local 32B-32J (Pratt Towers, Inc.) (29-CC-1285; 337 NLRB No. 44) Bronx, NY Dec. 20, 2001. The Board held that the Respondent Union's contract proposal contained a picket line clause prohibited by Section 8(e) of the Act, that the Union engaged in a strike in order to force or require Pratt Towers, Inc. to enter into an agreement containing the picket line clause, and that therefore the strike violated Section 8(b)(4) (ii)(A). [HTML] [PDF]

This case arose in the context of the parties' unsuccessful negotiations for an initial contract and an ensuing strike. The administrative law judge found that the picket line clause was prohibited by Section 8(e), but that the General Counsel failed to prove a violation of Section 8(b)(4)(ii)(A), citing Longshoremen ILA Local 1418 (New Orleans Steamship Assn.), 235 NLRB 161, 169 (1978), and ABC Outdoor Advertising, Inc., 169 NLRB 113, 116 (1968). The Board agreed with the Charging Party's argument raised in exceptions that the cases the judge cited are not apposite and that Board precedent actually supports its position that the Union violated Section 8(b)(4)(ii)(A). See, e.g., Teamsters Local 559 (Anopolsky & Son), 145 NLRB 722 (1963); Teamsters Local 294 (Rexford Sand & Gravel Co.), 195 NLRB 378, 382 (1972); and Teamsters Local 445 (Edward L. Nezelek, Inc.), 194 NLRB 579, 585 (1971), enfd. 473 F.2d 249 (2d Cir. 1973).

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Pratt Towers, Inc.; complaint alleged violation of Section 8(b)(4)(ii)(A). Hearing at Brooklyn on Aug. 16, 1999. Adm. Law Judge Jesse Kleiman issued his decision May 16, 2000.

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1849 Sedgwick Realty LLC and R & S Management a/k/a Arandess Management Co. (2-CA-30569, 31011; 337 NLRB No. 37) Bronx, NY Dec. 20, 2001. The Board ordered the Respondents to pay 12 individuals backpay totaling $220,400 and to make contributions to Service Employees Local 32E's Pension Fund and Health and Welfare Fund totaling $286,428.40 on behalf of five discriminatees. [HTML] [PDF]

By unpublished dated September 23, 1999, the Board adopted, absent exceptions, the initial administrative law judge's decision that the Respondents violated Section 8(a)(1), (2), (3), and (5) of the Act by among others, ordering an employee to sign an authorization card for Factory and Building Employees Local 187; providing unlawful assistance to Local 187, thereby tainting the Respondents' recognition of, and execution of a collective- bargaining agreement, with Local 187; refusing to hire their predecessor's employees because of their Local 32E membership; and unilaterally implementing salaries below the Local 32E scale. On Dec. 17, 1999, the Second Circuit issued its judgment (unpublished) enforcing the Board's Order.

The violations found occurred when Respondent 1849 Sedgwick Realty (Sedgwick Realty) purchased an apartment building in the Bronx from Morris Heights Apartments. Morris Heights and Local 32E were parties to a collective-bargaining agreement (CBA) that included a sale-and-transfer clause, but Morris Heights did not require Sedgwick Realty to assume and adopt the CBA. Local 32's subsequent grievance against Morris Heights for breach of the sale-and-transfer clause went to arbitration, resulting in awards for discriminatees Carmelo Delgado, Daniel Diaz, Juan Maria, and Jose Reyes. Sedgwick Realty engaged R & S Management, also known as Arandess Management Co., to manage the apartment building. Sedgwick Realty refused Local 32E's demands for recognition and bargaining. Instead, the Respondents recognized and quickly agreed to terms with Local 187. Under those terms, newly hired service employees (the replacements) were paid below the wage scale in the Local 32E CBA and the Respondents made no contributions to any union fringe-benefit funds.

In this supplemental decision, the Board affirmed the administrative law judge's findings concerning backpay amounts due Delgado, Maria, Minaya, and Reyes; that the backpay owing to the discriminatees includes unpaid bonus payments; that the Respondents' backpay obligation is not to be reduced by Sedgwick Realty's payments to satisfy Morris Heights' liability for breaching the CBA's sale-and-transfer clause; and that the Respondents must make contributions to the pension and health fund on behalf of the discriminatees. It disagreed with the judge's finding that the Respondents must contribute to the funds on behalf of the seven replacements, concluding that the replacements' interest in the pension fund is speculative at best. Chairman Hurtgen, dissenting in part, found that the severance payments made by the Respondents to Delgado, Maria, Minaya, and Reyes should offset the backpay owed to them. Member Walsh, dissenting in part, would order the Respondents to contribute to Local 32E's pension fund on behalf of the replacement employees.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Hearing at New York, July 10 and 12, 2000. Adm. Law Judge Steven David issued his supplemental decision Dec. 29, 2000.

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Verkler, Inc. (7-RC-21936; 337 NLRB No. 18) South Bend, IN Dec. 20, 2001. Agreeing with the Acting Regional Director, the Board majority of Members Liebman and Walsh dismissed the petition by the Petitioner (Plasterers) after determining the Employer and the Intervenor (Bricklayers Local 9) entered into a 9(a) bargaining relationship barring the petition. In a concurring opinion, Chairman Hurtgen agreed the collective-bargaining agreement to which the Intervenor was party contained language establishing a 9(a) relationship, but that the agreement and language were binding only on the parties. He stated: [HTML] [PDF]

The Petitioner is not a party thereto. Accordingly, if the petition had been filed within 6 months of the recognition, the Petitioner would have been free to assert that such recognition was not majority-based. However, inasmuch as the petition was filed more than 6 months after the recognition, such an assertion is untimely.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Tim Foley Plumbing Service (25-CA-26181; 337 NLRB No. 45) Muncie, IN Dec. 20, 2001. In a Supplemental Decision and Order, the Board reversed the administrative law judge's finding that the Respondent is entitled to an award of $16,164.93 in fees and other expenses under the Equal Access to Justice Act. In the underlying case, the judge concluded the Respondent did not commit any of the 8(a)(1) and (3) violations based on four findings: [HTML] [PDF]

(1) the 8(a)(1) allegation that Respondent solicited an employee to induce other employees to oppose the Union did not state a violation of the Act; (2) the General Counsel failed to establish that Leadman Larry Bisel was a supervisor within the meaning of Section 2(11) of the Act, which was necessary to prove the 8(a) (1) allegation that Bisel threatened Ronald Duke with more onerous working conditions; (3) the General Counsel failed to present any evidence of employer knowledge or animus to prove the 8(a)(3) allegations that Respondent unlawfully reassigned and constructively discharged Ronald Duke and refused to hire his son, Thomas Duke; and (4) the General Counsel had further failed to prove that Respondent had reassigned Duke against his will.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Adm. Law Judge David L. Evans issued his supplemental decision Sept. 22, 2000.

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Jonbruni, Inc., d/b/a Temptations (20-CA-28393, 28525; 337 NLRB No. 35) San Francisco, CA Dec. 20, 2001. Chairman Hurtgen and Member Liebman affirmed the administrative law judge's dismissal of the complaint allegations that the Respondent violated Section 8(a)(1) of the Act by terminating dancer Hima Narumanchi and refusing to reinstate dancer Tracy Buel because of their activities on behalf of the Exotic Dancers Alliance and other protected, concerted activity. Member Walsh dissented. [HTML] [PDF]

The majority found it unnecessary to consider the judge's finding that the Respondent's dancers are employees within the meaning of Section 2(3) rather than independent contractors. Assuming for purposes of disposition of this case that the dancers are statutory employees, it held, in agreement with the judge, that the Respondent's annual gross volume of business did not meet the Board's retail standard for discretionary jurisdiction.

The jurisdictional issue decided by the judge was whether compensation paid by the Respondent's customers directly to employees-in this case the dancers' tips and fees-should be included in calculating the Respondent's gross volume of business. Relying on Love's Wood Pit Barbecue Restaurant, 209 NLRB 220 (1974), the judge found it inappropriate to include these funds. The majority, finding that the Board in Love's explicitly considered the central issue presented in this case, said "[t]he relevant holding in Love's is that employer deductions from employees' pay for tips . . . do not count in the calculation of the employer's gross business volume because the tips themselves-a part of employees' compensation paid by customers-do not count in these calculations."

Dissenting, Member Walsh, contrary to the judge and his colleagues, found that the Respondent's gross annual income satisfies the Board's discretionary jurisdictional standard and that the Board should assert jurisdiction. Citing Supreme, Victory, & Deluxe Cab Co., 160 NLRB 140 (1996) and Major Cab Co., 255 NLRB 1383 (1986), he stated that the dancers' tips and fees should be included in the Respondent's gross annual income. Member Walsh would reverse the judge's dismissal of the consolidated complaint and remand the case to the judge for resolution of the unfair practice violations alleged.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Hima Narumanchi and Tracy Buel, Individuals; complaint alleged violation of Section 8(a)(1). Hearing at San Francisco, June 22-25 and July 12-13, 1999. Adm. Law Judge Mary Miller Cracraft issued her decision Nov. 2, 1999.

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Waxie Sanitary Supply (21-CA-32812, et al.; 337 NLRB No. 43) San Diego, CA Dec. 20, 2001. The Board, in agreement with the administrative law judge, found that the Respondent did not violate Section 8(a)(5) and (1) of the Act by delaying execution of the agreed-upon collective-bargaining agreement for one day from August 13, 1998 until August 14, 1998, for review by the Respondent's attorney and signature by the Respondent's president. It also agreed with the judge's finding that by delaying execution of the agreement an additional 33 days from August 14 until September 16, the Respondent violated Section 8(a)(5) and (1). [HTML] [PDF]

Turning to another issue, the General Counsel excepted to the judge's finding that the Respondent's holiday bonus was not a term of employment. The Board agreed, stating that the Respondent violated its statutory bargaining obligation by discontinuing the holiday bonus without first providing the Union notice and an opportunity to engage in meaningful bargaining regarding the decision.

In the absence of exceptions, the Board adopted the judge's findings that the Respondent violated Section 8(a)(5) and (1) by unilaterally discontinuing its driver safety bonus program, and that the Respondent did not violate Section 8(a)(5) and (1) by discontinuing a practice of allowing employees to use the Respondent's vehicles to train for a commercial driver's license, and refusing to execute a collective-bargaining agreement from July 21 through August 13, 1998 was adopted by the Board.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 36; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Diego, Aug. 23-24, 1999. Adm. Law Judge Burton Litvack issued his decision Feb. 9, 2000.

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Supreme Hauling Enterprises, Inc., d/b/a Supreme Trucking Co., et al. (29-CA-18950; 337 NLRB No. 21) Staten Island, NY Dec. 20, 2001. In a Second Supplemental Decision and Order, the Board ordered the Respondent, Supreme Hauling Enterprises, Inc., d/b/a Supreme Trucking Co., and its alter egos and successors, D.T.J. Trucking, Inc. and D.L.M. Trucking Corp., and their alter egos and successors D.L.M. Truck Rentals, Inc. and Infinity Trucking, and Lynn Maschietto, (an individual) to pay $150,921.55 in backpay, $47,915.35 as a pension fund contribution, and $67,765.52 as an annuity fund contribution-for a total of $266,602.42, exclusive of interest. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

General Counsel filed a motion for summary judgment September 27, 2001.

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The Boeing Co. (11-RC-6424; 337 NLRB No. 24) Charleston, SC Dec. 20, 2001. The Board majority of Chairman Hurtgen and Member Liebman reversed the Regional Director's finding that the petitioned-for unit (recovery and modification group or RAM) is appropriate, and held that the smallest appropriate unit must include all production and maintenance employees at the Charleston, SC Air Force Base. The majority concluded the distinctions in the RAM employees from other employees (such as separate supervision, meetings and work areas) are offset by the highly integrated workforce, the similarity in training and job functions between RAM and other employees, among other factors. Member Walsh dissented. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Pontiac Ceiling & Partition Co. (7-RC-21933; 337 NLRB No. 16) Pontiac, MI Dec. 20, 2001. The Board affirmed the Acting Regional Director's decision dismissing the Bricklayers Union's petition to represent 46 plasterers employed by the Employer, having found a Section 9(a) relationship. Chairman Hurtgen concurred with Members Liebman and Walsh that the collective- bargaining agreement here contains language that establishes a 9(a) relationship, but noted that "quite apart from the language showing majority status, there is extrinsic evidence of majority status." He said the extrinsic evidence consisted of majority authorization cards that the Plasterers' Union presented to the Employer at the time of recognition. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Temple Security, Inc. (13-CA-33078, 33382; 337 NLRB No. 26) Chicago, IL Dec. 20, 2001. In a Supplemental Decision and Order, the Board found that the Respondent was not privileged to withdraw recognition from the Charging Party (SEIU Local 73) upon the December 31, 1994 expiration of the parties' labor agreement simply because the Charging Party was a mixed guard union. Accordingly, the Board held: [HTML] [PDF]

[T]he Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from and refusing to bargain with the Charging Party on and after that date. Further, because the Respondent's withdrawal of recognition was unlawful, we find that the Respondent violated Section 8(a)(3), (2), and (1) by recognizing the Party in Interest [Independent Courier Guard Union], executing a collective-bargaining agreement with the Party in Interest, and giving effect to a union-security clause and a dues-checkoff clause contained in that agreement.

In the underlying case (328 NLRB 663 (1999)), the Board found that the Respondent, an employer of guards, did not violate Section 8(a)(5) and (1) of the Act by withdrawing recognition from and refusing to bargain with the Charging Party, a mixed guard union, upon the December 31, 1994 expiration of the parties' collective-bargaining agreement. The Board further found that the Respondent did not violate Section 8(a)(3), (2), and (1) by thereafter recognizing the Party in Interest, executing a collective-bargaining agreement with the Party in Interest, and giving effect to a union-security clause and a dues-checkoff clause contained in that agreement. On appeal, the U.S. Court of Appeals for the Second Circuit reversed, holding that the Board erred in construing Section 9(b)(3)'s prohibition against certifying mixed guard unions as depriving such unions of the protection of Section 8.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Auto Workers International and various of its Local Unions (Electric Boat Division, General Dynamics Corp.) (31-CB-7841, et al.; 337 NLRB No. 36) Los Angeles, CA Dec. 20, 2001. On remand from the U.S. Court of Appeals for the District of Columbia Circuit, the Board held provisionally that George Gally is entitled to a make whole order to remedy the violation found by the court, i.e., that the Autoworkers International and its Local 376 (Respondents) violated Section 8(b)(1)(A) and (2) of the Act by causing Employer Colt Industries to discharge nonmember employee Gally for nonpayment of dues without first informing him of the amount by which his union fees would be reduced if he became a Beck objector. Communications Workers v. Beck, 487 U.S. 735 (1988). The Board's decision and order dismissing the complaint in its entirety is reported at 328 NLRB 1215 (1999). [HTML] [PDF]

The Board, in its supplemental decision, accepted the court's findings as the law of the case. Having found that the Respondents engaged in unfair labor practices, it required them to notify the Employer in writing, with a copy to Gally, that they have no objection to his employment and that they affirmatively request his reinstatement. The Board also required the Respondents to notify Gally of his rights under NLRB v. General Motors Corp., 373 U.S. 734 (1963), and Beck and to inform him that he is not subject to discharge for nonpayment of union dues in the absence of such notification. The notice must include the amount by which Gally's fees would be reduced were he to become a Beck objector. The Respondents, jointly and severally, shall make Gally whole for any loss of wages and benefits he may have suffered as a result of its unlawful conduct, from the date of his discharge until the date of his reinstatement by the Employer.

The Board afforded the Respondents the opportunity to litigate, at the compliance stage of this proceeding, that Gally was a "free rider," who willfully and deliberately sought to evade his union-security obligations. If the Respondents make this showing, Gally will not be entitled to backpay. In the prior decision, the Board did not address the issue of whether Gally was a free rider in light of its finding, on other grounds, that the Respondents' actions in causing Gally's discharge were not unlawful. Since the Respondents did not explicitly raise the free rider issue as a defense, they are now foreclosed from doing so. But, because the free rider issue is also relevant to the portion of the remedy which requires the payment of backpay, if the Respondents can show in compliance that Gally would have paid dues and fees even if he had been given a full Beck notice, that showing will relieve the Respondents from backpay liability.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

* * *

Dutchess Overhead Doors, Inc. (3-CA-21892; 337 NLRB No. 27) Poughkeepsie, NY Dec. 20, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) of the Act by failing to apply the terms of the Master Agreement regarding the wages and fringe benefits of its employees. It ordered the Respondent to comply with the terms of the agreement and to make whole its employees for any loss of earnings or other benefits that resulted from the Respondent's failure to comply with the agreement since October 19, 1998. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Upstate New York Regional Council of Carpenters; complaint alleged violation of Section 8(a)(5). Hearing at Albany, Dec. 14-15, 1999. Adm. Law Judge Joel P. Biblowitz issued his decision June 6, 2000.

* * *

Douglas Electrical Contracting, Inc. and its alter ego and/or successor Nationwide Electrical Contracting, Inc. and Franklin Douglas Black Jr. and Mary Frances Black (11-CA-17176, 17471; 337 NLRB No. 47) Statesville, NC Dec. 20, 2001. The Board granted the General Counsel's motion for partial summary judgment with respect to the allegations in the compliance specification's paragraphs 17 through 62, insofar as they relate to the backpay period and the gross backpay calculations for all the discriminatees and remanded the case to the Regional Director to schedule a hearing on the remaining paragraphs where summary judgment was not granted. [HTML] [PDF]

In an unpublished order issued February 4, 1998, the Board directed Respondent Douglas to make whole the discriminatees for loss of earnings and other benefits resulting from the Respondent's discrimination against them. On August 3, 1998, the U.S. Court of Appeals for the Fourth Circuit in an unpublished opinion enforced the Board's order.

The compliance specification alleged that Respondents Nationwide, Franklin Douglas Black Jr., and Mary Frances Black are liable, jointly and severally, for backpay, interest and other relief as required under the Board's order as enforced by the court. The General Counsel contended that the Respondents' answer and amended answer to the compliance specification did not comply with the requirements of Section 102.56 of the Board's Rules and Regulations. The Board said, "[a] general denial is not sufficient to refute allegations pertaining to the backpay period and the gross backpay calculations." United States Service Industries, 325 NLRB 485 (1998). It found that the gross backpay amounts are as alleged in the compliance specification, but that the net backpay calculations regarding the discriminatees' interim earnings and expenses are subject to a hearing.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

General Counsel filed motion for partial summary judgment August 13, 2001.

* * *

Webco Industries, Inc. (17-CA-20143, 337 NLRB No. 48) Sand Springs, OK Dec. 20, 2001. The Board held that the Respondent violated Section 8(a)(1) and (4) of the Act by filing and pursuing preempted State court lawsuits against two former employees, Eric Martin and Charley Casey, in retaliation for their participation in protected concerted activities. The administrative law judge found that the suits were preempted at the time they were filed, and consequently that Martin and Casey were entitled to recover any reasonable legal expenses they had incurred in defending against the suits. The judge ordered the Respondent to move to dismiss both lawsuits. While the Board agreed with the judge that the suits were preempted and unlawful at their inception, it found that the suit against Casey was no longer preempted because "[a]fter the judge issued her decision in this case, the Board in Webco II found that Casey's layoff was not unlawful." [HTML] [PDF]

The case arose out of events that were the subject of an earlier case, Webco Industries, 334 NLRB No. 77 (2001) (Webco II). There, the Board found that the Respondent violated the Act by, among other things, selecting a number of employees for layoff in October 1998, because of their support for the Union.

Martin and Casey were two of the alleged discriminatees in Webco II. The Respondent argued that they were barred from seeking relief under the Act because, when they were laid off, they were given severance pay in return for signing agreements purportedly releasing the Respondent from all existing claims or liabilities, including those arising under the Act. The judge in Webco II rejected that argument and found that the layoffs of Martin and Casey were unlawful. He recommended that the issue of the effect of their severance pay on their backpay awards be left to compliance proceedings.

On July 19, 2001, the Board issued its decision in Webco II. The Board agreed with the judge that the severance agreements did not bar recovery and that Martin was unlawfully laid off. However, the Board reversed the judge and found that Casey's layoff was not unlawful because the Respondent was unaware of his union activities.

Meanwhile, shortly after the complaint in Webco II issued, the Respondent filed suits in State court against Martin and Casey. Both suits alleged breach of contract, specifically, that the employees had breached the terms of the severance agreements by participating as alleged discriminatees in Webco II. The Respondent asked the court to award damages including the amounts of severance pay received, $1500 paid on each employee's behalf to MBC Associates, Inc. (apparently for that firm's assisting the employees in making the transition to new employment), plus interest, costs, and attorney's fees. In the alternative, the Respondent asked the court to order Martin and Casey to request the General Counsel to withdraw their names from the charges and complaints.

On May 5, 1999, the Union filed the original charge in this case. The complaint issued on August 25, 1999, alleging that the Respondent's suits were preempted and unlawful. On September 30, 1999, the Respondent amended the suits by adding two causes of action, for unjust enrichment and for money had and received. On October 21, 1999, the Respondent moved the court to hold its contract claims in abeyance.

On December 14, 1999, the U.S. District Court for the Northern District of Oklahoma issued an order granting the General Counsel's request for a temporary injunction under Section 10(j) and directing the Respondent to stay its suits against Martin and Casey pending the Board's decision in this case.

In the instant cast (Webco II), the Board agreed with the judge that the suits were unlawful and retaliatory against Martin and Casey for exercising their Section 7 right to bring their unfair labor practice claims to the Board. "As the judge pointed out, the suits explicitly alleged that the employees breached the settlement agreements by allowing the Union to file charges and allowing the General Counsel to name them in the complaint," the Board stated.

As for the Respondent's suit against Casey, the Board said the Respondent now was free to reinstate the suit insofar as it alleges equitable claims.

Chairman Hurtgen, concurring and dissenting in part with Members Liebman and Walsh, said with respect to Casey, he would permit the Respondent to pursue a legal claim of breach of contract in seeking to recoup the money that it paid to him. The position of the majority on this point was that Respondent can only pursue an equitable claim of "unjust enrichment/money had and received, he noted."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by United Steelworkers; complaint alleged violation of Section 8(a)(1) and (4). Hearing at Tulsa, on Oct. 22, 1999. Adm. Law Judge Jane Vandeventer issued her decision March 20, 2000.

* * *

Precision Concrete (28-CA-14982, et al.; 337 NLRB No. 33) North Las Vegas, NV Dec. 20, 2001. The Board agreed with the administrative law judge that the Respondent failed to prove its affirmative defense that the 6-month limitations period in Section 10(b) bars litigation of an unfair labor practice allegation that Foreman Juan Pulido unlawfully prohibited employee Valentin Mendez from wearing a new prounion T-shirt while working in Pulido's crew. The General Counsel first raised the Pulido/Mendez allegation in a prehearing complaint amendment made 8 months after the event at issue. [HTML] [PDF]

The Board said the merits of the Respondent's 10(b) defense turned on whether the otherwise untimely amended complaint allegation is closely related to a timely filed unfair labor practice charge.

In finding that the Pulido/Mendez allegation was closely related to an allegation contained in a timely filed charge, the Board used the three-factor test in Redd-I, Inc., 290 NLRB 1115, 1118 (1988): (1) the Board assesses whether the otherwise untimely allegation involves the same legal theory as the allegation in the timely charge; (2) the Board examines whether the allegations arise from the same factual situation or sequence of events; and (3) the Board may look to whether the Respondent would raise similar defenses to both allegations.

The judge's analysis of the second Redd-I factor relied on the rationale that the conduct at issue in the amendment was "part of a pattern of conduct by Respondent aimed at impeding the Union's organizing activities." The Board, however pointed out that in Ross Stores v. NLRB, 235 F.3d 669, 672-675 (D.C. Cir. 2001), the D.C. Circuit Court of Appeals held that proof of a pattern of conduct cannot be satisfied solely on the basis that separate alleged acts arise out of the same antiunion campaign.

In the instant case, the Board found that all three Redd-I factors, including the second factual factor as interpreted by the D.C. Circuit, established the requisite close relationship between timely and otherwise untimely allegations. It stated:

As to the first factor, we find that all allegations involve the same section of the Act and theories of threatening conduct that interfered with employees' Section 7 rights to select the Union as their bargaining representative. As to the second factor, we find that all allegations involve types of threatening conduct by the Respondent's unnamed officers and agents occurring within a common sequence of events in a half-year time span. Finally, as to the third factor, we find that the defenses to these allegations are essentially the same: that perpetrators of the threats were not Respondent's agents or supervisors, that the testimony of the General Counsel's witnesses was not credible, or that the alleged conduct did not reasonably tend to threaten, coerce, or interfere with employees in the exercise of their Section 7 rights.

The Board affirmed the judge's finding that a strike begun by the Respondent's employees on July 28, 1998, was an unfair labor practice strike.

Chairman Hurtgen concurred in part and dissented in part with Members Liebman and Walsh. He would not adopt the majority's reliance on Cooper Hand Tools, 328 NLRB 145 (1999) and Ross Stores (he agrees with the D.C. Circuit's analysis in that case).

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Building Trades Organizing Project; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Las Vegas, March 9-12 and 23-25, 1999. Adm. Law Judge Michael D. Stevenson issued his decision and supplemental decision Aug. 23 and Oct. 20, 1999, respectively.

* * *

Ishikawa Gasket America, Inc. subsidiary of Ishikawa Gasket of Japan (8-CA-31264, 31291; 337 NLRB No. 29) Bowling Green, OH Dec. 20, 2001. The Board announced new standard language for the beginning of its Notices to Employees and Notices to Members that states the Board has found the respondent violated the Act and recites employees' Section 7 rights, and new standard language for the end of notices that sets forth the Board's functions and revises the previously customary language on contacting the regional office to include the hours of operation and the Board's website address. The General Counsel had requested the changes in the standard notice to employees so that it is "written in laypersons' language and without legal jargon" and inserts the additional information in English and Spanish at the end of the notice along with a statement that a Spanish-speaking Board agent can be made available if necessary. [HTML] [PDF]

The Board granted in part and denied in part the General Counsel's request, saying, "we support the notion that notices to employees should be drafted in plain, straightforward, laypersons' language and that clearly informs employees of their rights and the violations found. In our view, the General Counsel's proposed language at the beginning of Board notices clearly and effectively informs employees of their rights and under the Act." Accordingly, for the purposes of this case, and all future Board cases where Notices are required, the Board replaced the first two paragraphs currently used in Board notices with the following text:

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

The Board also agreed with the General Counsel that the following text should be inserted at the end of the notice to employees in this case and in all subsequent Board cases where notices are required, but with the applicable Regional Office information:

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. We conduct secret-ballot elections to determine whether employees want union representation and we investigate and remedy unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to an agent with the Board's Regional Office set forth below. You may also obtain information from the Board's website: www.nlrb.gov.

1240 East 9th Street -- Telephone: (216)522-3715

AJC Federal Bldg., Rm. 1695, Cleveland, OH 44199-2086 -- Hours of Operation: 8:15 am to 4:45 pm

The Board said, "this descriptive, yet neutral information, serves the beneficial functions of apprising affected employees of their rights under the Act as well as providing useful information about the Board and its processes."

The Board denied, however, the General Counsel's request to the extent that it seeks the insertion of the final Spanish paragraph in the notice, noting there has been no claim or showing in this case that such a provision is needed to address the needs of the affected employees. It will consider whether to provide the information set forth in the last proposed paragraph in Spanish or other relevant foreign language upon the request of a party in a particular case.

As for the General Counsel's request that the style of the standard notice to employees be changed so that it is "written in laypersons' language," the Board said it supported plain language for the remedial portions of notices. But, it declined to revise those portions of the notice in this case because neither the General Counsel nor the Charging Party had proposed precise plain language as to the violations found. The Board invited the General Counsel and other parties in future cases to suggest precise language as to the particular violations involved.

Regarding the alleged violations in this matter, the Board held that the Respondent violated Section 8(a)(4), (3), and (1) of the Act by discriminatorily issuing warnings to, suspending, and discharging Julie A. Wilson because of her union or other protected concerted activities and because she filed charges with the Board; violated Section 8(a)(3) and (1) by discriminatorily decreasing the rate at which its annual bonus was calculated because of employees' union activity; and violated Section 8(a)(1) in various respects, including soliciting and promising to pay an employee to surveil employees' union activities and based on language in a separation agreement it required a former employee to sign.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Julie A. Wilson, an individual and Machinists District Lodge 57; complaint alleged violation of Section 8(a) (1). (3), and (4). Hearing at Bowling Green, Feb. 6-9, 2001. Adm. Law Judge Richard H. Beddow Jr. issued his decision May 18, 2001.

* * *

Action Temporary Employment, a/k/a Action Multi-Craft (4-CA-23898, et al.; 337 NLRB No. 39) Wilmington, Newark, and Dover, DE Dec. 20, 2001. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by refusing to consider and refer for employment members of two local unions of the Electrical IBEW Workers International, and that both the question on the Respondent's application form and the inquiry over the telephone to an applicant regarding his union activity constituted unlawful interrogation in violation of Section 8(a)(1). Members Liebman and Walsh, with Chairman Hurtgen dissenting, rejected the judge's recommended dismissal of the complaint allegation that the Respondent unlawfully refused to reinstate employees Robert Matsinger and James Conroy, upon their unconditional offer to return to work from their unfair labor practice strike, and held that the Respondent's actions violated Section 8(a)(3) and (1). [HTML] [PDF]

The Respondent is an employment agency that recruits and hires temporary workers on behalf of its clients. Union members Matsinger and Conroy, who had been hired by the Respondent and referred for employment at A-Bell Electric, went on strike for 3 days to protest the Respondent's unlawful refusal to refer union applicants for employment. The judge found, and the Board agreed, that the Respondent and A-Bell are joint employers.

Members Liebman and Walsh held the Respondent is jointly liable for A-Bell's failure to reinstate Conroy and Matsinger. In so concluding, they found the General Counsel met his burden by establishing that A-Bell had engaged in inherently destructive conduct and that the Respondent failed to show that it neither knew nor should have known of A-Bell's unlawful action. Capitol EMI Music, 311 NLRB 997 (1993), enfd. 23 F.3d 399 (4th Cir. 1994). Chairman Hurtgen did not find the facts sufficient to impose an obligation on the Respondent to inquire into the conduct of A-Bell toward Conroy and Matsinger, let alone bear liability for A-Bell's conduct.

(Chairman Hurtgen and Members Liebman and Walsh participated.) 20

Charges filed by Electrical Workers IBEW Locals 313 and 654; complaint alleged violation of Section (a)(3) and (1). Hearing at Philadelphia, Oct. 9-11 and Nov. 6, 1996. Adm. Law Judge Karl H. Buschmann issued his decision June 30, 1997.

* * *

Mar-Jam Supply Co. (4-CA-27831, 27867; 337 NLRB No. 46) Pleasantville, NJ Dec. 20, 2001. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(3), (2), and (1) of the Act by, among others, discharging employee Arthur English because he supported Teamsters Local 331 instead of Carpenters Local 623, granting employee Charles Doerr a wage increase because he signed an authorization card for Carpenters Local 623 and discriminatorily discouraging his support for the Teamsters, and granting recognition to the Carpenters as the exclusive collective- bargaining representative of the unit at a time when the Carpenters did not represent an uncoerced majority of the unit employees and notwithstanding that Teamsters Local 331 had filed a valid representation petition seeking an election. Chairman Hurtgen concurring and dissenting in part [HTML] [PDF].

In concluding that the Respondent violated Section 8(a)(1) when Howard Motter promised wage increases to employees in order to encourage them to support the Carpenters and informed them that they could not maintain or distribute Teamsters paraphernalia or literature at the Respondent's facility, Members Liebman and Walsh found it unnecessary to pass on the judge's finding that Motter is a supervisor within the meaning of Section 2(11). Applying Cooper Industries, 328 NLRB 145 (1999), they agreed with the judge's alternative finding that Motter acted as an agent of the Respondent within the meaning of Section 2(13) and that Motter's misconduct is attributable to the Respondent on that basis.

Chairman Hurtgen found, in agreement with the judge, that Motter is a statutory supervisor. In his concurring and dissenting opinion, Chairman Hurtgen addressed the composition of the unit and the number of employees in the unit. He explained that a determination as to whether the Carpenters was a minority union, and therefore whether the Respondent unlawfully recognized the Union requires a finding as to the number of employees in the bargaining unit at issue; the judge did not clearly address the composition of the unit. The Chairman concurred in the several 8(a)(1) violations found by the judge and his colleagues. He disagreed however with their further conclusion that, in some instances, the same conduct violated Section 8(a)(2) and set forth the differences.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 331 and Carpenters Local 623; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Philadelphia, Sept. 27-28 and Nov. 10, 1999. Adm. Law Judge Earl E. Shamwell Jr. issued his decision March 17, 2000.

* * *

Overnite Transportation Co. (16-RD-1468; 337 NLRB No. 19) Laredo, TX Dec. 20, 2001. Members Liebman and Walsh affirmed the Regional Director's administrative determination to hold the instant decertification petition in abeyance pending posting of a notice pursuant to the Board's order in Overnite Transportation Co., 329 NLRB 990 (1999). The 1999 order required that the Respondent post at all its service centers a notice to employees remedying certain unfair labor practices which the Board found had affected employees "on a nation-wide basis." The Employer did not post any notices because it was seeking court review of the Board's Order. [HTML] [PDF]

On December 18, 2001, employee Thomas Moulton filed the petition in this Laredo, Texas unit. By letter dated February 13, 2001, the Regional Director informed the parties that he was holding the petition in abeyance pending compliance with the Overnite decision. The letter stated:

While the Laredo, Texas service center is not specifically found to be a facility where such unfair labor practices occurred, a reasonable interpretation of the Board Order is that such posting is mandated at the Laredo facility as part of the nation-wide posting ordered by the Board. . . . Accordingly, as no posting has occurred in Laredo, which would remedy the unfair labor practices found by the Board in Overnite Transportation Company, supra, I will hold in abeyance any further processing of the petition in the instant case at this time. It has long been the policy of the Board that no representation election may be held until unfair labor practices, which may affect the outcome of the election have been fully remedied.

In dissent, Chairman Hurtgen would grant the Employer's request for special permission to appeal the Regional Director's decision. Although he agreed that the Board's Order in 329 NLRB 990 required a nationwide posting and thus covered the Laredo facility, he said:

The instant case is unique in that the Laredo unit did not even exist as of the time of the conduct found unlawful in 329 NLRB 990. Thus, these employees were not coerced by any unlawful conduct. Accordingly, it is not reasonable to hold that a fair election cannot be held among these employees. Indeed, a fair election was held in Laredo in September 1999, i.e., after the unfair labor practices, and the Union prevailed.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

***

St. Joseph's Hospital (12-CA-20380; 337 NLRB No. 12) Tampa, FL Dec. 20, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by discriminatorily prohibiting Nurse Patricia Elalem from displaying a union-related computer screensaver message on a computer at her workstation and Section 8(a)(3) and (1) by issuing a warning to Elalem for displaying such a message. [HTML] [PDF]

The Board noted that "[t]he judge's finding presents an issue of first impression for the Board; neither the parties' briefs nor our own research has identified any case directly on point." The Respondent argued that the principles applicable to company bulletin boards should govern this case; the General Counsel argued that the principles applicable to the wearing of union insignia should control. The Board said "[w]e need not decide in this case whether a computer located at an employee's workstation is analogous to a company bulletin board or whether a computer screen saver message is similar to a union button. For, even applying the rules governing employee use of bulletin boards, as the Respondent urges, we find, in agreement with the judge, that the Respondent's conduct was discriminatory . . . ."

In agreeing with the judge that the warning issued to Elalem violated Section 8(a)(3) and (1), the Board, unlike the judge, did not engage in a Wright Line analysis, finding it is not appropriate because the Respondent's stated reason for the warning was Elalem's protected activity.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Food & Commercial Workers Local 1625; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tampa on May 10, 2001. Adm. Law Judge Pargen Robertson issued his decision July 31, 2001.

***

256 Food Corporation d/b/a Met Food (2-CA-30788, et al.; 337 NLRB No. 14) Bronx, NY Dec. 20, 2001. The Board, in this backpay proceeding, adopted the administrative law judge's determination of the amounts due the discriminatees but modified the recommended Order to include discriminatee Aleida Torres and the amount due her. It also modified the recommended Order to reflect that the Respondent and its Golden State successor Bafter Food Corp. are jointly and severally liable for the backpay remedy. AC Electric, 333 NLRB No. 120 (2001). Accordingly, the Board ordered that the Respondent, with its successor, Bafter Food Corp., make whole the discriminatees by paying the amounts set forth opposite their names, plus interest. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Hearing held at Manhattan, Oct. 4-5, 1999. Adm. Law Judge Steven Davis issued his supplemental decision Feb. 16, 2000.

***

Saint-Gobain Abrasives, Inc. (1-RC-21388; 337 NLRB No. 8) Worcester, MA Dec. 20. 2001. Affirming the Regional Director's recommendations, Members Liebman and Walsh overruled the Employer's objections, finding, contrary to dissenting Chairman Hurtgen, that the statements of Congressman McGovern (who represents the Congressional District) to employees in support of the Petitioner did not upset the laboratory conditions for a fair election and do not warrant setting aside the election. "[T]he Employer failed to establish that employees 'could not discern the difference between statements about labor relations by an individual member of Congress and statements by the Board and its representatives,'" the majority held. Chipman Union, Inc., 316 NLRB 107, 108 (1995), and cases cited therein. It certified Auto Workers Region 9A as the exclusive representative of all production and maintenance employees who work in the Abrasives branch of the Employer's Glendale complex in Worcester, MA. [HTML] [PDF]

Dissenting Chairman Hurtgen would set aside the election, concluding that this statement by Congressman McGovern, who campaigned vigorously for the Union, in a letter to employees upset the requisite laboratory conditions for a fair election:

The Company has also refused to debate this important issue, claiming that federal labor laws do not allow a fair debate because the laws restrict what an employer can say. As a United States Congressman with a strong interest in labor law, I can assure you that the law does indeed allow for a fair debate. If the company chooses not to debate, that is their right, but they should not hide behind misstatements about federal regulations. In fact, the laws are structured in such a way as to make it extremely difficult for workers to organize-not the other way around.

Chairman Hurtgen does not question the right of Congresspersons to campaign for one side or the other in connection with an NLRB election, but he believes they must be especially careful in opining on controversial issues of Federal law given their official position in the U.S. Government. He said Congressman McGovern "ventured into the controversial area of whether Federal labor law, as interpreted by the Board, allows for a 'fair debate' of the campaign issues." While the Chairman offered no opinion on the issue, he noted that there is responsible view to the contrary and that a Congressman should stay away from such an issue in the context of pro-party comments in an ongoing organizing campaign, explaining: "The danger is that employees are likely to view that statement as definitive. Conversely, an employer response would not carry the same weight. As to matters of law, employees are likely to view the response of a Federal official as more reliable than that of a private party to the election." Chairman Hurtgen said he is not suggesting that the Congressman violated the Act or that his opinions were wrong. "I simply conclude that his pro-party comments, made in the course of an ongoing campaign and on a controversial issue of law, upset the laboratory conditions required for a fair election."

The majority found no basis for distinguishing between Congressman McGovern's statements which Chairman Hurtgen found objectionable, and the Congressman's union endorsement and other opinions, which the Chairman agreed are permissible.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

***

Bridgestone/Firestone, Inc. (Woodridge, IL Distribution Center)(13-CA-37351; 337 NLRB No. 20) Woodridge, IL Dec. 20, 2001. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Steelworkers for the prescribed period as set forth in the Settlement Agreement executed by the Respondent and approved by the Regional Director in Case 13-CA-36834; and by withdrawing recognition from the Steelworkers during the period in which the Union enjoyed an irrebutable presumption of majority status. The Board decided that an affirmative bargaining order with its temporary decertification bar is necessary to fully remedy the Respondent's unlawful refusal to bargain with the Union. [HTML] [PDF]

The General Counsel contended that the Respondent committed a separate violation of Section 8(a)(5) by withdrawing its last contract proposal on April 14, 1999, and that the Respondent should be required to reinstate the proposal. The Board agreed, noting that the Respondent's April 14 letter to the Union, in which it revoked the last proposal and stated it could not lawfully negotiate with the Union, is the action that breached the settlement agreement and violated Section 8(a)(5). In the letter, the Respondent expressed its erroneous view that it was no longer permitted to bargain. "As such, the Respondent's withdrawal of the offer was part and parcel of its unlawful action of April 14," the Board said.

On another alleged violation, Members Liebman and Walsh held the judge correctly found the Respondent unlawfully implemented a new anti-harassment policy in September 1998, and ordered the Respondent to cease and desist from unilaterally altering terms and conditions of employment. They modified the judge's recommended Order and notice to require the Respondent to restore the status quo by reinstating its former policy and to retract any discipline issue to employees pursuant to the new policy and to make employees whole for any losses they incurred as a result of the implementation of the new policy.

Chairman Hurtgen would find the violation, but he would not require the Respondent now withdraw its new rules, explaining: "That would leave Respondent with no rules at all pertaining to harassment on bases other than sex. Instead, I would require Respondent to bargain with the Union about possible changes to the new rules and disciplinary consequences."

Turning to another issue, the Board disagreed with the judge's view that the Respondent's refusal to bargain warrants extending the certification year for another full year. Under all the circumstances, including the fact that the Respondent bargained with the Union in apparent good faith for about 4 months, the Board concluded that a 6-month extension of the certification year is appropriate.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago, Oct. 12-13, 1999. Adm. Law Judge James L. Rose issued his decision Dec. 23, 1999.

***

Laborers Local 1184 (Golden State Boring & Pipejacking) (21-CD-638; 337 NLRB No. 25) Ontario, CA Dec. 20, 2001. Relying on the factors of collective-bargaining agreements, Employer preference, and current assignment, the Board decided that employees of Golden State Boring & Pipejacking, Inc., represented by Laborers Local 1184 rather than those represented by Operating Engineers Local 12, are entitled to perform the operation of the directional drilling machine, which includes the operator, locator, and labor work performed in connection with the Level 3 (Kiewit) project in San Diego County, CA. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

***

Kim/Lou, Inc. d/b/a Bell Convalescent Hospital (21-RC-20316; 337 NLRB No. 30) Bell, CA Dec. 20, 2001. Contrary to the hearing officer, the Board found that the stipulated election agreement clearly and unambiguously reflects the parties' intent to exclude central supply/patient supplies/nurse aide Liguya Figueroa from the bargaining unit, and sustained the challenge to the ballot she cast in an election held March 22, 2001. The election resulted in 33 for and 32 against the Union, with 2 determinative challenged ballots. In the absence of exceptions, the Board adopted pro forma the hearing officer's recommendation to sustain the challenge to the ballot of Young Koopark. As the tally of ballots shows that Service Employees Local 399 received a majority of the valid ballots cast, the Board issued the appropriate certification of representative. [HTML] [PDF]

The stipulated unit included "[a]ll full-time and regular part-time certified nursing assistants, restorative nursing assistants, nursing assistants, cooks, dietary aides, activities aides, housekeeping, maintenance, and laundry employees working at the Employer's facility located at 4900 East Florence Avenue, Bell, California; excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act."

The hearing officer, finding the stipulation ambiguous, applied community-of-interest principles and recommended that the challenge to Figueroa's ballot be overruled and that she be included in the bargaining unit as a dual function employee. The Board said in agreeing with the Union that the hearing officer erred in overruling the challenge: "The stipulation reflects a clear intent on behalf of the parties to include 'nursing assistants' and to exclude 'all other employees.' Figueroa's title 'central supply/patient supplies/nurse aide' clearly does not fit the express language of the stipulation. Furthermore, the use of the language 'all other employees' in the stipulation's exclusion serves as further evidence of the parties' clear intent to exclude Figueroa from the unit."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

***

Public Service Co. of New Mexico (28-CA-16420; 337 NLRB No. 31) Albuquerque, NM Dec. 20, 2001. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain with Electrical Workers IBEW Local 611 about the decisions or effects of the decisions it made (1) requiring employees to wear uniforms, and (2) the elimination of the meter service technician (MST) position. [HTML] [PDF]

The Board agreed with the judge's application of the "clear and unmistakable waiver" standard of Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), in determining that the management-rights clause of the parties' collective-bargaining agreement did not privilege the Respondent's unilateral conduct in this case. Members Liebman and Walsh would reach the same result even under the "contract coverage" test applied by the Chairman and discussed below.

Chairman Hurtgen noted that the judge, in rejecting the Respondent's argument that it acted lawfully pursuant to the management rights clause in its contract with the Union, employed the "clear and unmistakable waiver" analysis of Metropolitan Edison. In Chairman Hurtgen's view, the "contract coverage" analysis, set forth by the D.C. Circuit in NLRB v. Postal Service, 8 F.3d 832 (1993), is the appropriate test. See his partial concurrence in Mt. Sinai Hospital, 331 NLRB No. 111 (2000), enfd. 8 Fed. Appx. 111, 2001 WL 533552 (2nd Cir. May 17, 2001). Under a "contract coverage" analysis, Chairman Hurtgen agreed that the Respondent's conduct was not privileged. Unlike the situation in Mt. Sinai Hospital, he found that in the instant matter, the judge correctly determined that, whether analyzed as a change in unit scope or as a unilateral transfer of unit work, the Respondent's actions with respect to the MST classification were unlawful.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Electrical Workers IBEW Local 611; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Albuquerque, March 13-15, 2001. Adm. Law Judge Albert A. Metz issued his decision Aug. 3, 2001.

***

Stevens International, Inc. (9-CA-36335; 337 NLRB No. 23) Hamilton, OH Dec. 20, 2001. In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Union over the effects of its decision to close its Hamilton, Ohio facilities and refusing to provide information regarding the work performed after July 2, 1998, including receiving records and pulling parts in preparation for shipment and duties of management personnel still at the plant. Members Liebman and Walsh, with Chairman Hurtgen dissenting, also found that the Respondent violated the Act by failing to bargain concerning the decision to transfer unit work to nonunit supervisors. [HTML] [PDF]

The Respondent and Chairman Hurtgen relied on article 3 of the parties' contract entitled "Management Rights," which provides in relevant part that the Respondent has "the right to assign work and maintain performance records for all employees." While noting that the collective-bargaining agreement gives the Respondent the right to assign work, Members Liebman and Walsh held that the contractual language also clearly provides that such assignment will be made only to "employees," stating:

Article 1 of the contract . . . defines the term 'employee' as including all production and maintenance employees and categorically excludes, inter alia, supervisors. There is no provision that gives the Respondent the right to assign unit work to supervisors. Therefore, by the terms of the contract the Respondent's right to assign work was limited to assignment of work to employees. Certainly, under these provisions, there is no basis for finding that the Union waived its right to bargain under the Board's 'clear and unmistakable' waiver standard. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).

Chairman Hurtgen contended that article 3 sets forth a broad array of management rights and that these rights were not subject to the contractual grievance procedure. He found merit in the Respondent's exception concerning the right to assign work to supervisors and agreed with the Respondent that the "contract coverage" analysis, as set forth in NLRB v. Postal Service, 8 F.3d 832, 836 (D.C. Cir. 1993) is the appropriate test, rather than the "clear and unmistakable waiver" analysis, for determining whether the Respondent was obligated to bargain over this subject. Mt. Sinai Hospital, 331 NLRB No. 111, slip op. at 2 (2000) (dissenting opinion). In his view, article 3 makes it plain that the Respondent was lawfully entitled to assign work as it chose.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Auto Workers Local 1688; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cincinnati, June 4 and 22, 1999. Adm. Law Judge Richard H. Beddow, Jr. issued his decision Sept. 7, 1999.

***

Reichenback Ceiling & Partition Co. (7-RC-21935; 337 NLRB No. 17) State of MI Dec. 20, 2001. The Board, finding that the Employer and the Intervenor (Bricklayers Local 9) entered into a 9(a) bargaining relationship, affirmed the Acting Regional Director's decision that the instant petition filed by Cement Masons Local 9 on December 28, 2000 (over 2 years after the Intevenor gained 9(a) status and 6 months after its current contract covering the unit employees became effective) is barred and must be dismissed. VFL Technology Corp., 329 NLRB No. 49 (1999) (reiterating the Board's policy that "a 9(a) contract will bar any petition filed outside the window period of that contract"). Chairman Hurtgen wrote a separate concurring opinion.[HTML] [PDF]

The Intervenor was party to a 1997-2000 collective-bargaining agreement with a multiemployer association, the Michigan Council of Employers of Bricklayers & Allied Craftworkers (MCE), and on September 29, 1998, the Employer agreed to be bound as a non-association member. The Employer did not serve notice to terminate or to withdraw from the 1997-2000 contract prior to its expiration and, accordingly, under the roll-over provision became bound to a successor agreement between the Intervenor and MCE, effective from June 22, 1000 to August 1, 2003.

The Acting Regional Director found the Employer's agreement on September 29 to be bound as a non-association member to the MCE contract constituted an unequivocal acceptance of the Intervenor's unequivocal demand for recognition as the petitioned-for unit employees' 9(a) representative, and that any challenge to the Intervenor's 9(a) status must have been made within the 6-month period following September 28, 1998. Because the Petitioner did not challenge the Intervenor's majority status until the filing of the instant petition on December 28, 2000, the petition is barred and must be dismissed. Even if the Petitioner's challenge to the Intervenor's majority status was timely, the Acting Regional Director reasoned, the Petitioner submitted no evidence to rebut the Intervenor's majority status. The mere filing of the petition does not itself challenge the Intervenor's majority status.

In a separate concurrence, Chairman Hurtgen wrote:

I agree that the agreement here contains language, which establishes a 9(a) relationship. However, in my view, that agreement and language are binding only on the parties thereto. The Petitioner is not a party thereto. Accordingly, if the petition had been filed within 6 months of the recognition, the Petitioner would have been free to assert that such recognition was not majority-based. However, inasmuch as the petition was filed more than 6 months after the recognition, such an assertion is untimely. A contrary view would mean that stable relationships, assertedly based on Section 9(a) would be vulnerable to attack based on stale evidence. That is not permitted with respect to unions in nonconstruction industries. And, under John Deklewa & Sons, 282 NLRB 1375 fn. 53 (1987), unions in the construction industry are not to be treated less favorably than unions in nonconstruction industries. Thus, such an attack should not be permitted with respect to unions in the construction industry.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

***

West Virginia Steel Corporation, a wholly-owned subsidiary of Raleigh Mine & Industrial Supply, Inc. (9-CA-36690; 337 NLRB No. 3) Charleston and Poca, WV Dec. 20, 2001. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by engaging in surveillance of Bobby Bonnett, Jr.; by informing employees that they would not receive a pay raise because of their concerted and protected activities; by implying that employees should resign if they continued to engage in union activities; and by interrogating employee Frank A. Honaker. The Board also agreed with the judge that the Respondent violated Section 8(a)(3) and (1) by permanently laying off Bonnett because he supported the Union. [HTML] [PDF]

The judge dismissed similar allegations that the Respondent acted unlawfully by permanently laying off employees Honaker and Dallas L. Spurlock. The Board upheld the judge's finding with respect to Honaker, that he would have been laid off even in the absence of his protected conduct. However, it remanded to the judge the issue of Spurlock's layoff and to determine the extent of the Respondent's knowledge of Spurlock's union activities. The Board issued a final Order regarding the 8(a)(1) independent violations, the 8(a)(3) and (1) Bonnett layoff violation, and the dismissed Honaker allegations.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Charleston, July 22-23 and 29, 1999. Adm. Law Judge Benjamin Schlesinger issued his decision Nov. 3, 1999.

* * *

Masiongale Electrical-Mechanical, Inc. (25-CA-25119, et al.; 337 NLRB No. 4) Muncie, IN Dec. 20, 2001. In a Supplemental Decision and Order, the Board majority of Members Liebman and Walsh agreed with the administrative law judge that the Respondent unlawfully failed to hire and consider for hire 20 union "salt" applicants. The majority found "that the Respondent's professed reliance on certain hiring rules was a discredited, post hoc pretext for its real discriminatory motivation." [HTML] [PDF]

Dissenting Chairman Hurtgen would dismiss the Section 8(a)(3) allegations, maintaining "the General Counsel failed to overcome the Respondent's rebuttal showing that it did not consider or hire the 20 applicants because their applications were 'stale' or because of their high wage-rate history."

The majority emphasized that "[t]he Respondent's evidence still does not show even a single instance when it failed to hire an apparent nonunion applicant for any reason. Conversely, this evidence shows only that it failed to hire known union applicants." Chairman Hurtgen countered that the "Respondent cannot be faulted for failing to prove a negative. Respondent affirmatively showed that those whom it did hire did meet the criteria, and that the 20 alleged discriminates did not."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Adm. Law Judge Bruce D. Rosenstein issued his supplemental decision Oct. 2, 2000.

* * *

Route 22 Auto Sales d/b/a Route 22 Toyota and Route 22 Automobiles d/b/a Route 22 Honda (22-CA-23835; 337 NLRB No. 10) Hillside, NJ Dec. 20, 2001. Reversing the administrative law judge, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from Amalgamated Local 747 during the term of the collective-bargaining agreement. The Respondent withdrew recognition from Local 747 in late August 1999, following an affiliation, merger, and disaffiliation involving the collective-bargaining representative of its unit employees. The Board stated: [HTML] [PDF]

In this case, the Respondent recognized and signed a contract with Local 747 in May 1999. That event was not attacked within 6 months by any charge. Accordingly, the recognition and contract cannot be assailed as unlawful. Moreover, once the Respondent and Local 747 entered into a collective-bargaining agreement on May 12, Local 747 enjoyed a conclusive presumption of majority status for the first 3 years of that contract. Auciello Iron Works v. NLRB, 517 U.S. 781, 786 (1996). The Respondent was not privileged to withdraw recognition from Local 747. R.P.C. Inc., supra. [311 NLRB 232 (1993).] Thus, we agree with the General Counsel that the judge erred in finding that Local 148 presented a valid competing claim for representation that should be resolved by an election.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Amalgamated Local 747; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark on August 29, 2000. Adm. Law Judge Raymond P. Green issued his decision Nov. 24, 2000.

* * *

Grant Prideco, L.P. d/b/a Tubular Corporation of America (17-CA-20883; 337 NLRB No. 13) Muskogee, OK Dec. 20, 2001. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging employee Billy Knott because of his union and protected, concerted activities. It rejected the Respondent's contention that no evidence was established that it harbored union animus and that the judge erred in inferring an illegal motive. The Board stated: [HTML] [PDF]

Here, the judge found no direct evidence of union animus, but inferred an unlawful motive based on a variety of circumstances. These circumstances included the suspicious timing and disparate nature of Knott's discipline, the unprecedented scope of the Respondent's investigation of Knott, the absence of a cogent reason for conducting such an investigation, the failure to afford Knott any opportunity to answer the allegations raised by the investigation and, last, the fact that the Respondent's behavior was inconsistent with its progressive discipline system and its past practice.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Billy Knott, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Muskogee, April 24-25, 2001. Adm. Law Judge Jane Vandeventer issued her decision June 15, 2001.

* * *

Dakota Fire Protection, Inc. (18-RC-16847; 337 NLRB No. 11) Grand Forks, ND Dec. 20, 2001. In the absence of exceptions, the Board adopted, pro forma, the hearing officer's recommendation to sustain the challenge to the ballot of Dennis Laturnus and to overrule the challenge to the ballot of Robert Thompson. The tally of ballots for the election held September 13, 2001 showed 8 for and 6 against the Petitioner (Road Sprinkler Fitters Union #669), with 3 challenged ballots. [HTML] [PDF]

The Petitioner challenged the ballot of Chris Mitzel, a recent high school graduate who worked for the Employer during the summer of 2001 before starting college on August 28, 2001. The Employer argued that Mitzel did not quit and has worked part time since the election. The Board agreed with the hearing officer that Mitzel terminated his employment on August 16, 2001, four weeks before the election and, therefore, was ineligible to vote. After the election, the Employer called Mitzel and asked him to come back to work. Mitzel testified that September 26 was the first day he had worked since August 16. An employee's actual status as of the eligibility date and the date of the election governs that employee's eligibility to vote, irrespective of what occurs after the election, the Board noted, in sustaining the challenge to Mitzel's ballot and issuing a certification of representative.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

* * *

Niblock Excavating, Inc. (25-CA-26323, et al.; 337 NLRB No. 5) Bristol and Columbia City, IN Dec. 20, 2001. The Board adopted the administrative law judge's finding that the Respondent committed numerous violations of Section 8(a)(1), (2) and (3) of the Act by, among others, interrogating employees about their union support or activities; informing employees that they had been laid off, demoted, and denied a raise because of their union support or union activities; photographing or videotaping employees engaged in lawful picketing without proper justification; rendering assistance and support to the Christian Labor Association; promulgating, maintaining, or enforcing hiring policies for the purpose of discouraging union activities; and requiring employees to submit to drug testing because of their union support or union activities. It found merit in the General Counsel's exceptions to the judge's failure to find that the Respondent violated Section 8(a)(1) when it promised to increase its contribution to the employees' 401(k) plan in order to induce employees to abandon their support for the Union. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Operating Engineers Local 150; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing at South Bend, Jan. 22-26, 2001. Adm. Law Judge Arthur J. Amchan issued his decision May 15, 2001.

* * *

JPH Management, Inc. d/b/a Mid-Wilshire Health Care Center (31-CA-24055; 337 NLRB No. 7) Los Angeles, CA Dec. 20, 2001. The Board reversed the administrative law judge's dismissal of the complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union about the Respondent's decision to rescind unit employees' July 1999 wage increase. It upheld the judge's finding that the Respondent did not violate Section 8(a)(5) and (1) by refusing to sign the tentative successor collective-bargaining agreement reached by the parties on June 22, 1999. [HTML] [PDF]

The judge held that in light of the fact that no final agreement had been reached, the Respondent had mistakenly implemented the wage increase and was entitled to correct this mistaken implementation. Finding that by failing to notify and bargain with the Union regarding the rescission of the wage increases, the judge noted the Respondent had, in fact, violated Section 8(a)(5). However, he determined that after the Union filed a grievance regarding the rescission, the Respondent entered into a course of fruitful discussions with the Union, demonstrating that the "Respondent clearly accepts the concept and obligation of collective bargaining." In light of the Respondent's postrescission behavior, the judge held that the unilateral change did not justify a remedial order. The Board disagreed, stating that the unilateral rescission of the wage increase justifies the issuance of a cease and desist order because during contract negotiations, an employer may not make unilateral changes to represented employees' terms and conditions of employment without bargaining to an impasse.

Member Liebman concurred with the Board's decision. In her separate opinion she said "I write separately only to highlight certain aspects of the Respondent's conduct that, had they been squarely challenged, might have presented a different case. . . . A closer case would have been presented, however, were the issue whether the Respondent had breached its duty to bargain in good faith by appointing negotiators without the authority to carry on meaningful bargaining, including the authority to reach a final agreement."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Service Employees Local 399; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles, Feb. 12-14, 2001. Adm. Law Judge Lana H. Parke issued her decision April 9, 2001.

* * *

Horizon House Developmental Services, Inc. (4-CA-29830; 337 NLRB No. 9) Philadelphia, PA Dec. 19, 2001. The Board, reversing the administrative law judge's dismissal of the complaint allegations, held that the Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from the Union on October 2, 2000, failing to furnish necessary and relevant information requested by the Union on August 14 and 30, 2000, and refusing to process grievances filed by the Union on behalf of unit employees on August 30, 2000. It decided that an affirmative bargaining order with its temporary decertification bar is necessary to fully remedy the allegations in this case. [HTML] [PDF]

In dismissing the complaint, the judge relied on his findings that (1) Home Coordinator Barbara Rossi testified that employees Morrison, DiYenno, and Moore had apprised her that the Union was not necessary and that it was unfair to be required to pay dues and not receive representation; (2) Home Coordinator Erica Mount testified that employees Thompson and Garglahn had complained to her about paying dues and not being represented by the Union; and (3) employee Thompson, the former union delegate, had told several members of management "that the employees no longer wanted the Union to represent them" and that they were circulating a petition to that effect.

Having thus concluded that the Respondent was privileged to withdraw recognition from the Union, the judge determined that the Respondent did not violate the Act by refusing to provide information requested by the Union and by refusing to process the class-action grievances filed by the Union. The judge reasoned that the Union's admitted failure to respond to the Respondent's letter requesting additional information regarding the details of the alleged contract violations-together with the Union's failure to exercise its option to elevate the grievances to the next step of the grievance procedure-precluded a finding that the Respondent refused to process the grievances.

Applying the "good faith uncertainty" standard articulated in Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998) and explicated in subsequent Board decisions, the Board concluded, contrary to the judge, that the Respondent did not demonstrate that it possessed a good-faith uncertainty regarding the Union's majority status. It agreed with the contentions of the General Counsel and the Union that the judge inaccurately characterized some of the testimony on which he relied in finding a good-faith uncertainty. Finding that only two of the approximately 22 unit employees statements could contribute toward a good-faith uncertainty of the Union's status, the Board held this limited evidence was insufficient to establish a good-faith uncertainty of the Union's majority status under Allentown Mack.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Hospital and Health Care Employees District 1199C; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia on May 9, 2001. Adm. Law Judge Bruce D. Rosenstein issued his decision June 27, 2001.

* * *

Allied Production Workers Union Local 12 and Local 10 (Northern Engraving Corp.) (18-CB-3913, et al.; 337 NLRB No. 6) Lansing and Waukon, IA Dec. 19, 2001. The Board majority of Chairman Hurtgen and Member Walsh found Respondent Union Local 10 violated Section 8(b)(1)(A) of the Act "[b]y receiving, accepting, and retaining the service charges deducted from the wages of Ellen Jones, Ruth H. Vine, and Cynthia Hertrampf after they resigned their union membership, and by doing so solely on the authority of a checkoff authorization that did not clearly and unmistakably provide for postresignation service fee obligations." In a separate concurring opinion, Chairman Hurtgen said while he agreed that there is a Section 10(b) bar to the finding of a violation as to employees Prichard and Snodgress, he disagreed with his colleagues' effort to distinguish Kroger Co., 334 NLRB No. 113 (2001). [HTML] [PDF]

Member Walsh stated in a footnote that the result would have been different if there had never been a valid checkoff authorization. "In that instance, each deduction and remittance of dues within the 10(b) period would be another unlawful act in a continuing violation," he said.

Member Liebman, concurring and dissenting in a separate opinion, agreed with her colleagues in dismissing the complaint allegations pertaining to Respondent's Local 12's receipt of money that had been checked off from the wages of employees Prichard and Snodgrass, but would also dismiss the complaint allegations against Respondent Local 10 as to the moneys that had been checked off from the wages of employees Vine, Jones and Hertrampf. She stated: "I conclude that the dismissal of all the complaint allegations is warranted because the checkoff authorizations originally signed by these employees contained explicit language clearly setting forth an obligation for them to pay the amounts checked off, even in the absence of their union membership."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Sherry Prichard, Carolyn Snodgrass, Ruth Vine, Ellen Jones, and Cynthia Hertrampf, individuals; complaint alleged violation of Section 8(b)(1)(A) and (2). Parties waived their right to a hearing before an administrative law judge.

* * *

Anheuser-Busch Inc. (3-CA-21796, et. al.; 337 NLRB No. 2) Baldwinsville, NY Dec. 19, 2001. The Board affirmed the administrative law judge's finding that the Respondent has engaged in various violations of Section 8(a)(1) of the Act following its implementation of a final offer during unsuccessful contract negotiations at its Baldwinsville, NY facility. The unfair labor practices included: refusing to allow a requested union steward to represent an employee in violation of the employee's rights under Section 7; threatening to discharge an employee if he engaged in concerted protected activity, including speaking at corporate communication meetings; and threatening an employee with reprisal for filing charges with the NLRB. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 1149; complaint alleged violation of Section 8(a)(1). Hearing at Syracuse, March 8-10, 2001. Adm. Law Judge Wallace H. Nations issued his decision July 7, 2000.

* * *

Avondale Industries, Inc. (15-CA-12171, et al.; 337 NLRB No. 15) New Orleans, LA Dec. 19, 2001. The Board issued an order approving a settlement agreement between the Respondent and the New Orleans Metal Trades Council, ending years of litigation over attempts by the labor organization to unionize the Respondent's employees. At the request of the parties, the U.S. Court of Appeals for the Fifth Circuit on Nov. 29, 2001, remanded to the Board its decisions in Avondale I, 329 NLRB 1064 (1999); and Avondale III, 333 NLRB No. 74 (2001). (Avondale II involved a July 6, 2001 decision issued by Administrative Law Judge Philip P. McLeod in cases 15-CA-12639, et al. The parties in that matter entered into a formal settlement stipulation approved by the Board separately on Dec. 19, 2001.) [HTML] [PDF]

The settlement agreement resolving issues in Avondale I and III provides for "the reinstatement for all discharged and transferred discriminates, the hire of one applicant, removal from personnel files of any and all references to the unlawful discharges, transfers and suspensions, and rescission of all warning notices." The agreement provides for one Notice to Employees combining the notice provisions of Avondale I, II, and III with minor modifications. The agreement also requires the Respondent to pay a lump sum backpay of $2,150,274 for the three Avondale proceedings. Finally, the Board's order in Avondale I, 320 NLRB 1064 at 1071 (1999), is modified by eliminating the special remedies in paragraphs 2(p) through 2(w).

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

* * *

C. Factotum, Inc. (7-CA-42352(1)(E), 42352(2)(E); 337 NLRB No. 1) Detroit, MI Dec. 19, 2001. In a supplemental decision, the Board adopted the administrative law judge's recommended order denying the Respondent's application for attorneys' fees and expenses pursuant to the Equal Access to Justice Act (EAJA). The Board rejected the Respondent's contention that it is entitled to fees because in the underlying case, 334 NLRB No. 23 (2001), the judge recommended dismissing the allegations of paragraph 8 in the complaint for lack of evidence. The Board agreed with the judge that the General Counsel's overall position in the case was substantially justified, regardless of any deficiencies involving paragraph 8. [HTML] [PDF]

It stated:

Paragraph 8 alleged unlawful threats of job loss made in late June 1999. Evidence of threats at that point in time may have been lacking. But even so, the allegations of paragraph 8 are essentially the same as those of paragraph 9(a), which alleged threats of job loss in mid-July 1999. There was evidence supporting the General Counsel's view that threats were made then, although the judge ultimately found that, considered in context, the statements were not unlawful.
The Applicant's reliance on Hess Mechanical Corp. v. NLRB, 112 F.3d 146 (4th Cir. 1997), awarding EAJA fees, is misplaced. There, the court concluded that the General Counsel was not substantially justified in proceeding to issue a complaint without further investigation. The only precomplaint evidence supporting the General Counsel's position was the charging party's affidavit, and there was substantial uncontroverted evidence supporting the respondent's defense. Here, the Applicant does not contend that precomplaint evidence raised a serious question about the complaint's viability.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Adm. Law Judge C. Richard Miserendino issued his supplemental decision Sept. 7, 2001.

* * *

The Concrete Company (15-CA-16039, 16096; 336 NLRB No. 135) Mobile, AL Dec. 19, 2001. A Board majority of Members Liebman and Walsh affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) by informing employees of its predecessor "[t]here's no union; the Union's gone" and Section 8(a)(3) and (1) by refusing to hire Titus James Edwards and Calvin Mack Taite on December 20, 2000, because of their respective positions as job steward and alternate job steward. They also adopted the judge's remedy requiring the Respondent to restore the terms and conditions of employment under the predecessor's contract with the Union until it negotiates a new contract with the Union or negotiates to impasse. [HTML] [PDF]

Dissenting in part, Chairman Hurtgen agreed that the Respondent's statement (that there would be no union at its facilities) violated Section 8(a)(1). However, he disagreed that the statement should cause a forfeiture of a successor employer's right to unilaterally set initial terms and conditions of employment, noting his dissenting opinion in Pacific Custom Materials, 327 NLRB 75 (1998).

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 991; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing at Mobile on July 17 and 18, 2001. Adm. Law Judge George Carson II issued his decision Sept. 11, 2001.

* * *

J.P. Phillips, Inc. (13-RC-20544; 336 NLRB No. 130) Schiller Park, IL Dec. 17, 2001. The Board, reversing the hearing officer, ordered that a second election be held based on the Intervenor having received via fax an incomplete Excelsior list from the Region and the later receiving by mail from the Region an untimely list. The decision by Members Liebman and Walsh; Chairman Hurtgen concurred in the result. [HTML] [PDF]

A mail ballot election was held April 9 through 23, 2001. The results of the election showed 31 ballots for the Petitioner, 10 for the Intervenor, 2 for neither, and 2 challenged ballots, an insufficient number to affect the results.

On March 21 the Employer provided the Regional Director with a list containing the names of employees eligible to vote in the election but omitted the employees' addresses. The incomplete list was faxed to the parties that same day by the Region. On March 22 the Employer submitted a revised list which the Region faxed to the parties on March 23. Thereafter, on March 29, the Region mailed to the parties copies of the March 22 list. Intervenor Bricklayers Local 74 and Local 56 received their copies on March 30 and April 2, respectively.

The Intervenor's objections Nos. 1-3 alleged that there were irregularities regarding the submission of the required Excelsior list. In overruling the objections, the hearing officer asserted that even though the Bricklayers locals did not receive a complete Excelsior list on March 23, the fact that that list was "obviously incomplete" should have led the Intervenor to "take affirmative steps to obtain additional copies of the March 22" list. She also determined that the Intervenor did not need the Excelsior list for its campaign because evidence showed that the Intervenor was able to contact eligible voters without the list and because Local 74 received a complete copy of the list on March 30, it had the list 10 days before the election. Thus, the hearing officer concluded, there was no reason to set aside the election.

Regarding the delayed receipt of an Excelsior list, Members Liebman and Walsh said "the relevant inquiry is whether the delay-however caused-interfered with the purpose behind the Excelsior requirements of providing employees with a full opportunity to be informed of the arguments concerning representation, so that they can fully and freely exercise their Section 7 rights." Alcohol & Drug Dependency Services, 326 NLRB 519, 520 (1998). The Board majority held that the Petitioner possessed the list significantly longer than the Intervenor and this disparity placed the Intervenor at an obvious disadvantage. Special Citizens Futures Unlimited, 331 NLRB No. 19 (2000), slip op. at 2. They set aside the election and directed a second election.

In a separate concurring opinion, Chairman Hurtgen stated that this case differs from Alcohol & Drug Dependency Services, a case in which he dissented. In Alcohol & Drug Dependency, he noted there was no showing of material prejudice. Both cases involve errors by the Region, not the Employer. However, he finds prejudice to one of the two competing unions in the instant matter. In sum, he said

[T]he Petitioner received the complete list 7-10 days before the Intervenor received it. It is clear that the Excelsior list is very important for purposes of communicating with employees. In light of this, it seems apparent to me that a union that has the list 7-10 days before its rival is blessed with a significant advantage. The rival is at a concomitant disadvantage, and is substantially prejudiced vis-?-vis the other union. . . . [I]n view of the Board's compelling interest in assuring fairness and the appearance of fairness in elections, I join my colleagues in setting aside the election.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Mastronardi Mason Materials Co. (29-CA-20589, 21060; 336 NLRB No. 136) Jamaica, NY Dec. 18, 2001. The Board agreed with the administrative law judge that Respondent Queens Ready Mix (QRM) was an alter ego of Respondent Mastronardi Mason Materials Co. and violated Section 8(a)(3) and by (1) of the Act by conditioning the re-employment of employees McCabe and Iadanza on their withdrawal from union membership and acceptance of the nonunion terms and conditions of employment unilaterally imposed by QRM, and by refusing to rehire them because they refused to renounce their union affiliation. The Board also affirmed the judge's finding that QRM violated Section 8(a)(2) and (1) by recognizing Service Employees International Union Local 355. In doing so, he rejected the Respondent's contention that it had an objective basis for believing that the employees had rejected the Charging Party incumbent Union and had selected Local 355. The judge applied the pre-Levitz, good-faith-doubt (uncertainty) standard for an employer's withdrawal of recognition from an incumbent union (here, Charging Party Teamsters Local 282). [HTML] [PDF]

In Levitz, 333 NLRB No. 105 (2001), which issued after the judge's decision in this case, the Board held that "an employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees." However, the Board held that its analysis and conclusions in that case would only be applied prospectively.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 282; complaint alleged violation of Section 8(a)(1),(2),(3) and(5). Hearing at Brooklyn, Dec. 16, 21, and 23, 1998, and Jan. 20 and Mar.19, 1999. Adm. Law Judge Steven Davis issued his decision Sept. 17, 1999.

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Mercy Hospital of Buffalo (3-CA-21600; 336 NLRB No. 134) Buffalo, NY Dec. 18, 2001. The Board disagreed with the administrative law judge's finding that the Respondent and Southtowns Catholic MRI are a single employer and that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to apply its collective bargaining agreement with the Union to the employees of Orchard Park performing MRI services at a new facility, Southtowns MRI Associates. However, the Board adopted the judge's finding that the Respondent violated Section 8(a)(1) and (5) by refusing to comply with the Union's information requests of August 3, 1998 and January 25, 1999. It also upheld the judge's dismissal of the complaint allegations that the Respondent violated the Act by unilaterally transferring its MRI work to another facility and closing its MRI facility at the Medical Park facility and the Respondent's failure to bargain over the effects of the relocation decision. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.

Charge filed by Communications Workers Local 1133; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Buffalo on Oct. 25-27, 1999. Adm. Law Judge Karl H. Buschmann issued his decision June 27, 2000.

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Miramar Sheraton Hotel (31-CA-22971, 23902; 336 NLRB No. 123) Santa Monica, CA Dec. 13, 2001. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) of the Act when it granted retroactive pay increases to employees Art Tolentini, Deborah Mackron, and Alicia Ojeda in December 1995, and when it granted an additional pay increase to Ojeda on August 21, 1997, in order to reward and encourage antiunion activity. The Board found it unnecessary to pass on the General Counsel's and Charging Party's exceptions to the judge's dismissal of additional allegations of unlawful wage increases, inasmuch as an additional finding would be cumulative and would not affect the remedy. For the same reason, Chairman Hurtgen found it unnecessary to decide whether the wage increase granted to Ojeda in August 1997 was unlawful. The Board affirmed the judge's rejection of the Respondent's 10(b) statute of limitations defense as to the increases, but it did not rely on his analysis. [HTML] [PDF]

The judge denied the General Counsel's and the Charging Party's request for a novel make-whole remedy and instead recommended an affirmative recordkeeping remedy. The General Counsel and the Charging Party did not except to his failure to recommend the requested remedy and the Respondent did not except to the recordkeeping remedy. Citing WestPac Electric, 321 NLRB 1322 (1996), the Board exercised its remedial discretion in the absence of exceptions and found no need for either remedy because the Respondent is no longer the owner and operator of the hotel involved here, the successor employer and the Charging Party have agreed on the terms of a new collective-bargaining agreement, and the three antiunion employees favored with unlawful wage increases no longer work at the hotel.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Hotel Employees and Restaurant Employees Local 814; complaint alleged violation of Section 8(a)(1). Hearing at Los Angeles for 11 days between Nov. 30, 1998 and June 24, 1999. Adm. Law Judge Timothy D. Nelson issued his decision April 6, 2001.

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Dejana Industries, Inc. (22-RC-12005; 336 NLRB No. 127) Newark, NJ Dec. 10, 2001. The Board reversed the Acting Regional Director and held that, under precedent, the Petitioner's showing of interest is tainted due to Supervisor Troy Carter's direct solicitation of the authorization cards and dismissed the representation petition filed by Teamsters Local 408. The Board has long held that if a supervisor directly solicits authorization cards, those cards are tainted and may not be counted for the showing of interest. See National Gypsum Co., 215 NLRB 74 (1974); Southeastern Newspapers, Inc., 129 NLRB 311 (1960); and The Toledo Stamping & Mfacturing. Co., 55 NLRB 865, 867 (1944). In this decision, the Board wrote: [HTML] [PDF]

[W]e recognize that applying this bright-line rule of excluding all cards directly solicited by a supervisor may seem unduly harsh in situations in which employees and petitioning unions may not be fully aware that the card solicitor possesses any of the indicia of statutory supervisory status. However, we find this possible disadvantage is outweighed by the benefits of providing the Board's Regional Directors and all parties in representation cases with clear procedural guidance. A bright-line rule also avoids possible election delays due to administrative investigations, by encouraging petitioners to gather new, untainted cards where there is any allegation that the petitioner's card solicitor possesses supervisory authority.

On March 30, 2001, the Acting Regional Director directed an election among the Employer's sweeper operators, regular seasonal payload operators, and mechanics. The Regional Director subsequently denied the Employer's request for dismissal of the petition after an administrative investigation, concluding there was insufficient evidence to establish that supervisory participation in the organizing drive tainted the showing of interest and that the showing of interest was numerically sufficient even excluding a card signed by Supervisor Troy. By order dated April 25, 2001, the Board granted the Employer's request for review of the Regional Director's determination.

In this decision on review, the Board found the Regional Director erred by applying the test set forth in Sutter Roseville Medical Center, 324 NLRB 218 (1997), which is used in objections cases to evaluate whether prounion supervisory conduct throughout the entire election campaign warrants setting aside an election, not in cases where, as here, the issue is solely whether the petition should be dismissed because the showing of interest has been tainted.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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U.S. Postal Service and Letter Carriers Branch 109 (34-CA-9194, 34-CB-2378; 336 NLRB No. 125) Shelton, CT Dec. 10, 2001. Affirming the administrative law judge's decision, the Board held that the Respondent Employer violated Section 8(a)(3) and (1) of the Act by reducing the seniority of letter carrier George French at the unlawful request of the Respondent Union; and that the Respondent Union violated Section 8(b)(1)(A) by threatening French with loss of job seniority and Section 8(b)(2) by causing or attempting to cause the Respondent Employer to discriminate against French by demanding a reduction in his seniority because of a personal disagreement between French and Union President Ronald Persico. [HTML] [PDF]

The Board modified the judge's recommended Order to provide that the Respondent Union send French a copy of its notification to the Respondent Employer that it has no objection to the restoration of French to his previous position on the seniority list; to provide that the Respondent Employer and Respondent Union are to jointly and severally make French whole; to include the statement that the Respondent Union's liability for backpay shall terminate 5 days after it notifies the Respondent Employer that it has no objection to the restoration of French's seniority; to require the Respondent Employer and Respondent Union to remove from their files any reference to the reduction of French's seniority and to notify French in writing that they have done so and that the reduction of his seniority will not be used against him in any way; and to require the reciprocal posting of notices.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by George French, an individual; complaint alleged violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2). Hearing at Hartford, Nov. 16-17, 2000. Adm. Law Judge Margaret M. Kern issued her decision April 3, 2001.

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C.S. Telecom, Inc. (4-CA-28871; 336 NLRB No. 126) Philadelphia, PA Dec. 10, 2001. Contrary to the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating Bryan Galie about his union activities. It determined that the judge erred in dismissing the allegations that Company President John Yoast III and his brother, Vice President Michael Yoast unlawfully interrogated Galie in December 1999. [HTML] [PDF]

The judge dismissed the complaint allegations of unlawful interrogations on the ground that Galie's conduct, although protected, was not concerted. However, the Board found that the judge erred in two respects. It said

First, he failed to recognize that Section 7 'defines both joining and assisting labor organizations?actions in which a single employee can engage?as concerted activities.' NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984). Accordingly, by definition, Galie's conduct was concerted without regard to the fact that he may have acted alone. Second, without any evidentiary support, the judge speculated that Galie's actions were 'meant to force the Respondent to recognize the Union so that the Union would stop threatening its customers.' Because there is nothing in the record indicating that Galie was a knowing participant in any threatening conduct in which the Union may have engaged, the judge's speculation must be rejected.

The Board agreed with, or found it unnecessary to pass on, the judge's dismissal of other unfair labor practice allegations. It also adopted the judge's finding that the Respondent has demonstrated it would have laid Galie off even in the absence of his protected activity.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Electrical Workers Local 98; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia on Nov. 28 and 29, 2000. Adm. Law Judge Joel P. Biblowitz issued his decision Feb. 27, 2001.

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Ingram Barge Company (26-CA-18649; 336 NLRB No. 131) Nashville, TN Dec. 14, 2001. The Board affirmed the administrative law judge's dismissal of the complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act by terminating barge pilots Lavon Church, David Sullivan, Tony Gurley and Rodger Sholar. It adopted the judge's finding that the Respondent's barge pilots were not statutory employees, but were supervisors within the meaning of Section 2(11) of the Act. [HTML] [PDF]

The judge determined that "the pilots' supervisory duties remain essentially as they were in 1962 when the Board decided [in] an earlier Ingram Barge case" that the Respondent's pilots were supervisors. Local 28, Masters, Mates and Pilots (Ingram Barge Co.), 136 NLRB 1175, 1203 (1962) (Ingram Barge I), enfd. 321 F.2d 376 (D.C. Cir. 1963). Members Liebman and Walsh agreed with Chairman Hurtgen that the judge correctly applied that precedent in recommending that the complaint be dismissed.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Masters, Mates and Pilots ILA; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Memphis on June 21 and 22, 1999. Adm. Law Judge Pargen Robertson issued his decision Oct. 14, 1999.

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MJM Studios of New York, Inc. (34-RC-1881; 336 NLRB No. 129) Rock Tavern, NY Dec. 14, 2001. The Board affirmed the Regional Director's decision to conduct an immediate election among the Employer's carpenters and welders but reversed his decision to exclude 13 carpenters and welders because they are "temporary" employees. [HTML] [PDF]

The Board, citing Personal Products Corp., 114 NLRB 959, 960 (1955), said "[T]emporary employees, who are employed on the eligibility date, and whose tenure of employment remains uncertain, are eligible to vote." It held the "date certain" test, however, does not necessarily require that the employee's tenure is "certain to expire on an exact date"; it is only necessary that the "prospect of termination [is] sufficiently finite on the eligibility date to dispel reasonable contemplation of continued employment beyond the term for which the employee was hired." St. Thomas-St. John Cable TV, 309 NLRB 712, 713 (1992).

The Board found the evidence is insufficient to support a "date certain" for the termination of the temporary employees or to dispel reasonable contemplation of continued employment beyond the term for which the employees were hired. Ameritech Communications, 297 NLRB 654 (1990). It held that the 13 employees share a sufficient community of interest to be included in the unit with the Employer's "regular" employees because there is no dispute that they work side-by-side with the regular employees, performing the same work, under the same supervision. The fact that they receive different wages and benefits than the "regular" employees does not require their exclusion from the unit.

In Chairman Hurtgen's view, if the wages and benefits of the temporary employees are different from those of the regular employees, and if the wages and benefits of the temporary employees are set by an employer who is not to be at the bargaining table, it may be well that there is no community of interests between the temporary and regular employees. See Chairman Hurtgen's dissent in Interstate Warehousing, 333 NLRB No. 83. Here, the Union is the entity that refers the temporary employees to the Employer, and the wages and benefits are set in discussions between the Employer and the Union. The Union, if selected, would obviously be at the bargaining table. In these circumstances, Chairman Hurtgen would include the temporary employees in the unit.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Vallery Electric, Inc. and J. Vallery Electric, Inc., as single employer/alter ego (15-CA-14575, 15304; 336 NLRB No. 133) Monroe and West Monroe, LA Dec. 14, 2001. The administrative law judge found, and the Board agreed, that the Respondents violated Section 8(a)(5) and (1) of the Act by failing to apply the terms of the 1997-1999 labor agreements between the Quachita Vallery Chapter National Electrical Contractors Association and Electrical Workers IBEW Local 446 with respect to employees performing electrical work and withdrawing recognition from the Union. The Board affirmed the judge's finding that the Respondents, as an alter ego or single employer, entered into a 9(a) relationship with the Union. The Respondents' exceptions do not dispute the judge's 9(a) finding. Contrary to the Respondents' exceptions, the Board agreed with the judge that the appropriate bargaining unit is "all employees performing electrical work." [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Electrical Workers IBEW Local 446; complaint alleged violation of Section 8(a)(1) and (5). Hearing held Oct. 6-7, 1999. Adm. Law Judge Lawrence W. Cullen issued his decision Feb. 7, 2000.

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Alter Barge Lines, Inc. (26-CA-18645; 336 NLRB No. 132) Benttendorf, IA Dec. 14, 2001. Affirming the administrative law judge's finding that the Respondent's barge pilots are not statutory employees, but are supervisors within the meaning of Section 2(11) of the Act, the Board dismissed the complaint allegations that the Respondent unlawfully discharged pilots for honoring the Union's strike and unlawfully questioned and threatened pilots James York and Mike McReynolds. The Board noted the facts of this case cannot be meaningfully distinguished from those in Ingram Barge Co., 336 NLRB No. 131, where it affirmed the judge's decision finding that Ingram's barge pilots were statutory supervisors. The parties were invited in June 2001 to file supplemental briefs on the impact of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 121 S.Ct. 1861 (2001), on this case. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by the Pilots Agree Association, Masters, Mates and Pilots ILA; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Memphis on April 3, 2000. Adm. Law Judge Pargen Robertson issued his decision July 12, 2000.

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Alamo Rent-a-Car (20-CA-29022, et al.; 336 NLRB No. 121) Burlingame, CA Dec. 10, 2001. The Board affirmed the administrative law judge's decision that the Respondent violated Section 8(a)(4), (3), and (1) of the Act by various acts, including suspending and discharging employees because they gave an affidavit and testified in a Board proceeding; reassigning, issuing disciplinary warnings, suspending and discharging employees because of their protected concerted activities; and interrogating, threatening, and granting wage increases to employees in order to discourage them from supporting the Union. [HTML] [PDF]

Chairman Hurtgen, dissenting in part, would reverse the judge's findings that the Respondent violated the Act by soliciting employee grievances and impliedly promising to remedy them during a March 1999 employee meeting; when Respondent's City Manager Steve Raffio, impliedly threatened to discharge employee Ubaldo Reyes during a meeting between Reyes, Raffio, Assistant City Manager Nedic, and Maintenance Manager H. Singh in late March or early April; and by discharging employee Danny Elvena because he gave an affidavit in this proceeding.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 665; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at San Francisco, Sept. 28-29, 1999 and Feb. 1, 2000. Adm. Law Judge Joan Wieder issued her decision June 1, 2000.

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Carrier Corporation (28-CA-16727; 336 NLRB No. 120) Las Vegas, NV Dec. 6, 2001. The Board adopted the administrative law judge's findings, in the absence of exceptions, that the Respondent violated Section 8(a)(1) of the Act by equating protected activity with disloyalty, making implied threats of reprisals, and prohibiting employees from talking with others about protected activities, including Board proceeding; and his dismissal of the allegation that Supervisor Anthony Derfoldi threatened Kenneth W. Crosby in violation of Section 8(a)(1). [HTML] [PDF]

In adopting the judge's finding that the Respondent did not violate the Act when it laid off Crosby, Members Liebman and Walsh found it unnecessary to pass on the judge's finding that the General Counsel failed to satisfy his initial burden under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), to establish that Crosby protected concerted activities were a motivating factor in the Respondent's decision to lay him off. Even assuming arguendo that the General Counsel met his burden under Wright Line, they concluded the Respondent has demonstrated that it would have laid off Crosby even in the absence of such activities, relying on the judge's finding that credited testimony establishes a "concrete and lawful reason for selecting Crosby for layoff," namely his insubordinate refusal at the July 5, 2000 meeting to acknowledge the Respondent's authority to assign work to employees.

Chairman Hurtgen would adopt the judge's decision in its entirety, including her finding that the General Counsel failed to establish that Crosby's protected concerted activities were a motivating factor in the Respondent's decision to lay him off.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Kenneth W. Crosby, an individual; complaint alleged violation of Section 8(a)(1). Hearing in Las Vegas on June 1 and 13, 2001. Adm. Law Judge Lana H. Parke issued her decision Aug. 10, 2001.

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The Earthgrains Company (11-CA-18295, 18339, 11-RC-6327; 336 NLRB No. 117) Orangeburg, SC Dec. 3, 2001. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by withholding a previously scheduled wage increase from maintenance employees because of their union activities; and Section 8(a)(1) by various acts, including when Respondent's senior vice president, Talmadge Miles, threatened maintenance employees with denial of a planned increase if Electrical Workers IBEW Local 776 won the representation election. It set aside the election held in Case 11-RC-6327 on April 21, 1999 based on those violations found that occurred during the critical preelection period and that correspond to the Union's objections, and remanded the case to the Regional Director to conduct a new election. Chairman Hurtgen dissented in part. [HTML] [PDF]

Members Liebman and Walsh agreed with the judge that Senior Vice President Miles' statement that "there were no promises period," and that if the Union were voted in, "everything is negotiable from that point," threatened the loss of benefits as it confirmed Plant Manager David Maxwell's earlier unlawful statements that, if the employees selected the Union as their collective-bargaining representative, they would not receive the previously scheduled wage increase and the wage increase would have to be negotiated.

Contrary to his colleagues, Chairman Hurtgen would find that Miles' statement to the maintenance employees did not violate Section 8(a)(1). He does not agree with the judge that the statement was a confirmation of the one made by Plant Manager Maxwell, concluding: "Unlike Maxwell, Miles expressly disavowed a promise and made no threat."

The Board adopted, in the absence of exceptions, the judge's recommended dismissal of the 8(a)(1) allegations that Supervisor Eric Antley threatened an employee with job loss and solicited grievances and promised to remedy them; that Miles threatened employees with loss of benefits and promised that things would get better if the employees did not select the Union; that Supervisor Gene Rodoski threatened employees with loss of benefits and working conditions; and that the Respondent announced a new pension plan and 401(k) plan to discourage support for the Union. There being no exceptions to the judge's recommendation not to grant a bargaining order remedy under the circumstances of this case, the Board found it unnecessary to pass on the judge's discussion of whether and when the Union achieved a card majority.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Electrical Workers IBEW Local 776; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Orangeburg on Sept. 13-14 and 20-22, 1999. Adm. Law Judge George Carson II issued his decision Dec. 1, 1999.

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United Parcel Service (32-CA-17468; 336 NLRB No. 119) Oakland, CA Dec. 5, 2001. Reversing the administrative law judge, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Union over the effects of the relocation of the employee parking lot. [HTML] [PDF]

The Respondent leases its facility from the Port of Oakland (the Port) and its employees parked in a lot that was owned and operated by the Port for use by its tenants. The parking lot was no more than a 5-minute walk from the Respondent's facility. In March 1999 the Port notified its tenants that it was closing the parking lot on April 1 and was opening another lot located about 1-1/2 miles from the Respondent's facility. It is undisputed that it takes the employees an additional 20 minutes to reach their jobsites from the new parking lot, increasing their commuting time by at least 40 minutes per day.

The Board noted that the judge correctly held that employee parking is a mandatory subject of bargaining. It said the judge erred by concluding that the Respondent was relieved from bargaining over the effects of the relocation of the employee parking lot because the Respondent had no role in that decision.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 70; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oakland on Aug. 14, 2000. Adm. Law Judge Frederick C. Herzog issued his decision April 25, 2001.

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McFarling Foods, Inc. (25-RC-10035; 336 NLRB No. 122) Indianapolis, IN Dec. 5, 2001. The Board reversed the hearing officer's recommendation that the challenges to the ballots of Calvin "Jack" Finney and Charles Stokes be sustained based on his findings that neither employee shared a community of interest with bargaining unit employees, explaining: "A determination of voter eligibility based on community-of-interest principles is appropriate only if the parties' intent is unclear and the stipulated unit is ambiguous. . . . Here, however, we have no difficulty in determining the parties' intent." [HTML] [PDF]

The tally of ballots for the election held on June 20, 2001 showed 29 for and 28 against the Petitioner (Teamsters Local 135), with 7 determinative challenged ballots. In the absence of exceptions, the Board adopted, pro forma, the hearing officer's recommendations to sustain the challenge to one ballot and to overrule the challenges to three others.

The Petitioner challenged the ballots cast by Finney and Stokes, who work as regular part-time employees in the Employer's warehouse. The Employer contended in exceptions that the hearing officer erred by using a community-of-interest analysis rather than giving effect to the clear intent of the parties' unit stipulation. The Board agreed and held that the stipulated unit included all regular part-time warehouse employees, with the exception only of individuals in specifically excluded job classifications (drivers, office clericals, professionals, guards, and supervisors), and makes no further distinction based on the kind of work performed by an employee in the warehouse. It found that the parties intended to include Finney and Stokes in the stipulated unit. Contrary to the hearing officer, the Board included their ballots among those remanded to the Regional Director with direction to open and count them and to issue a revised tally of ballots, with the appropriate certification.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Advanced Stretchforming International (21-CA-29104; 336 NLRB No. 124) Gardena, CA Dec. 7, 2001. The Board remanded the proceeding to the administrative law judge to reopen the record for the limited purpose of taking evidence on the extent of the Respondent's backpay liability. In 1997, the Board found that the Respondent, as successor employer, violated Section 8(a)(5) and (1) of the Act by unilaterally changing terms and conditions of employment set forth in the collective-bargaining agreement between Auto Workers Local 509 and a predecessor employer. It ordered the Respondent to restore the status quo by rescinding any unilateral changes and to make the unit employees whole by remitting all wages and benefits that would have been paid absent its unlawful conduct, until it negotiated in good faith with the Union to agreement or to impasse. 323 NLRB 529. [HTML] [PDF]

Thereafter, the Board petitioned for enforcement of its Order with the U.S. Court of Appeals for the Ninth Circuit and, on November 22, 2000, the court issued its decision enforcing the Board's Order, except for the backpay award. NLRB v. Advanced Stretchforming International, Inc., 233 F.3d 1176, cert denied __S. Ct __ (October 9, 2001). The court held the "Board applied the presumption that an award of backpay and benefits under the repudiated bargaining agreement restores the status quo ante, but did not consider whether [the Respondent] had rebutted that presumption with evidence that it would have bargained to an impasse and imposed less favorable terms." 233 F.3d at 1182. Because the record was not fully developed under this "correct legal standard," the court remanded the case to permit the Respondent and the Union to "present evidence on whether [the Respondent] and the Union would have bargained to impasse and imposed terms, even had the [Respondent] honored its obligation to bargain with the Union." Id. at 1183.

The Board accepted the court's decision as the law of the case and remanded to the judge for reopening of the record and further hearing limited to the extent of the Respondent's backpay liability. In a footnote, Chairman Hurtgen noted his views that a successor employer is ordinarily free to set its own terms and conditions of employment and that this Respondent's Section 8(a)(1) statement that there would be no union at its facility, did not forfeit that right. While he would not have required the Respondent to continue the predecessor's terms and conditions of employment, he acquiesced in the law of the case herein, and agreed with the Board's remand order.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Solomon Health Services, LLC d/b/a Chelsea Place, Trinity Hill, and Wintonbury Health Center (34-CA-8982; 336 NLRB No. 111) Hartford, CT Nov. 26, 2001. The Board affirmed the administrative law judge's findings that the Respondent was a "perfectly clear" successor within the meaning of NLRB v. Burns International Security Services, 406 U.S. 272 (1972), having an obligation to bargain with Health Care Employees District 1199 before changing preexisting terms and conditions of employment; and that the Respondent violated Section 8(a)(5) and (1) of the Act when it unilaterally failed to credit the unit employees with all of their unused vacation, sick, and personal leave time that accrued prior to the Respondent's April 1, 1999 commencement of operations. The Board rejected the Respondent's contention in its exceptions that the parties bargained to an agreement on the accrued benefits issue. [HTML] [PDF]

The Respondent provides skilled and semiskilled health care services. It purchased the three Hartford, CT nursing homes involved in this proceeding known as Chelsea Place, Trinity Hill, and Wintonbury Health Center from a State-appointed Receiver. On February 23, 1999, the Respondent, in order to avert a threatened strike during its negotiations with the Receiver to purchase the business, pledged, in writing, to the Union that if the court approved the purchase, the Respondent would "hire the current bargaining unit employees" and would "pay existing wages and benefits in effect immediately prior to our purchase while good faith negotiations continue." On April 1, when the Respondent assumed ownership of the three facilities, it hired virtually all of the predecessor's employees and continued, except for the accrued vacation, sick, and personal leave time that was "on the books" as of the change of ownership. It unilaterally eliminated all accrued paid leave balances of the unit employees.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Health Care Employees District 1199; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Hartford on July 27, 2000. Adm. Law Judge David L. Evans issued his decision Nov. 21, 2000.

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Penn Tank Lines (12-CA-19505, et al.; 336 NLRB No. 112) Ft. Lauderdale, FL Nov. 29, 2001. Agreeing with the administrative law judge, the Board found the Respondent violated Section 8(a)(5) of the Act by withdrawing recognition from Teamsters Local 390 and making unilateral changes in the waiting-time and lost-time pay for its drivers, and Section 8(a)(3) and (1) by discharging Robert Miller in May 1998, suspending Joseph Steckler in November 1998, conditioning Steckler's reinstatement on his refraining from engaging in union activities, and ultimately discharging him. The Board found, as did the judge, that the employees' October 29, 1998 decertification petition was tainted by unremedied unfair labor practices and the Respondent unlawfully withdrew recognition from the Union based on the petition. It entered an affirmative bargaining order, with its temporary decertifcation, saying it is necessary to fully remedy the Respondent's violations. [HTML] [PDF]

In concluding that the Respondent violated Section 8(a)(1) by warning Steckler for engaging in union activities before he was suspended, the Board said the judge erred in failing to make this finding. It dismissed the complaint allegation that the Respondent violated Section 8(a)(1) by encouraging employees to form a drivers' committee in lieu of bargaining through the Union. The General Counsel had excepted to the judge's failure to address the allegation, relying on the credited testimony of driver Robert Miller concerning his conversation with human resources consultant, Charles Nicholas. Contrary to the General Counsel's assertion, the Board found Nicholas did not unlawfully encourage employees to take future action to abandon the Union and merely conveyed the economic reality that if the employees had decided instead to form their own committee, they would not now be subject to the dues that unions typically collect from the employees they represent. See Office Depot, 330 NLRB No. 99, slip op. at 3 (2000).

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 390; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Miami, Dec. 13-14, 1999. Adm. Law Judge Raymond P. Green issued his decision March 28, 2000.

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Van Lear Equipment, Inc. (4-CA-26781; 336 NLRB No. 114) Reading, PA Nov. 26, 2001. On a stipulated record, the Board held that Respondent is a successor employer to Panther Valley School District (PVSD) with regard to its Panther Valley, PA facility, and that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to recognize and bargain collectively with Teamsters Local 773 as the exclusive bargaining representative of its Panther Valley bus drivers. [HTML] [PDF]

The Respondent provides bus transportation to school districts throughout Pennsylvania with its headquarters in Reading, Pennsylvania and six district facilities, including Panther Valley. In January 1997, the Union represented a unit at PVSD of 38 employees, 21 were full-time and part-time bus drivers. From July 1, 1994 through June 30, 1997, the Union and PVSD were parties to a collective-bargaining agreement covering the PVSD unit. On January 24, PVSD awarded the Respondent the contract for pupil transportation services for a 5-year period.

The Board held that as of August 1997, the Respondent employed 26 bus drivers at Panther Valley (19 were former PVSD bus drivers). In October, when the Union first requested the Respondent to recognize and bargain with it as the representative of the Panther Valley drivers, the Respondent employed a substantial and representative unit complement, as its Panther Valley location was already fully staffed. The Board found a unit composed of the Respondent's Panther Valley bus drivers is appropriate, noting that single-location units are presumptively appropriate and the Respondent failed to overcome the presumption. There is substantial continuity between PVSD and the Respondent at its Panther Valley facility and the Respondent, with regard to its Panther Valley facility, is a successor to PVSD, it held.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 773; complaint alleged violation of Section 8(a)(1) and (5). Parties waived a hearing before an administrative law judge.

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Cargill, Inc. (17-RC-11982; 336 NLRB No. 118) Topeka, KS Nov. 30, 2001. Affirming the Acting Regional Director, Members Liebman and Walsh found that the unit petitioned for by the Bakery Workers International, limited to production and maintenance employees working at the Employer's East facility in Topeka, Kansas, is appropriate. Chairman Hurtgen, dissenting, found that the presumption in favor of a single facility has been rebutted. [HTML] [PDF]

The Employer's grain division, called Ag Producer Services (APS) is organized in groups of approximately 39 entities called "farm service groups." The two Topeka grain storage elevators at issue are located two miles apart and constitute a farm service center and a single profit center within the Employer's Twin Rivers Farm Service Group, which includes five other elevators in other cities. Each of the five elevators is considered a separate profit center. The Employer contended the appropriate unit must include production and maintenance employees at both facilities in Topeka because of their functional integration and the close community of interest between the employees. The single superintendent for both facilities testified that there were 13-14 interchanges between the two facilities in the 8-month period from November 2000 to July 2001.

Finding that the Employer failed to rebut the single-facility presumption, the majority considered such factors as the centralized control over daily operations and labor relations, including the extent of local autonomy; similarity of skills, functions, and working conditions; degree of employee interchange; geographic proximity; and bargaining history, if any. New Britain Transportation Co., 330 NLRB No. 57 (1999); Rental Uniform Service, 330 NLRB No. 44 (1999). The majority held the separate local autonomy, the geographic separation, and the lack of substantial interchange together outweigh the factors cited by dissenting Chairman Hurtgen, including the fact that the East and West facilities are a single profit center.

Chairman Hurtgen found, given the small total number of employees (23) at the two facilities, 13-14 interchanges among them over an 8-month period demonstrates substantial interchange and is itself a factor mitigating against a one-facility unit. He held New Britain is distinguishable, noting the employees in that case were drivers, and thus it was essential to know the number of routes and charters involved in the interchanges and the employer failed to provide that context. Chairman Hurtgen also noted: the East and West facilities are on the same rail line and are considered a single profit center, there is a common seniority list, and the bargaining history of the Employer is inconsistent with a single facility unit. Regarding the latter factor, he pointed out that the Employer's two Kansas City elevators are in a single bargaining unit, as are its two flour mills in Topeka.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Morse Operations Inc., d/b/a Ed Morse Auto Park (12-CA-18836, et al.; 336 NLRB No. 115) Lake Park, FL Nov. 30, 2001. The Board upheld the administrative law judge's findings that the employer committed violations of Section 8(a)(5), (3), and (1) of the Act by, among others, reducing the pay rate of employees and giving pay raises and benefits to employees without first giving the National Organization of Industrial Trade Unions an opportunity to bargain over the matter, discharging auto repair technicians Peter Hanscom, Joseph Niciforo, Eton Leung, and Henry Brodhurt because of their union activity, soliciting employees to deal directly with the Respondent regarding raises and terms and conditions of employment, and telling employees that it would be futile for them to support the Union as their bargaining representative. [HTML] [PDF]

In adopting the judge's finding that the Respondent violated Section 8(a)(1) by Assistant Service Manager Dan Crawford's statement to discriminatee Hanscom on June 6, 1997, that he was going to "stop" Hanscom and "have the Union thrown out," the Board found it unnecessary to pass on the judge's finding that Crawford was a supervisor within the meaning of Section 2(11) of the Act. Noting the Respondent stipulated at the outset of the hearing that Crawford was an agent of the Respondent within the meaning of Section 2(13), the Board found Crawford's threat is attributable to the Respondent.

The Board found the General Counsel met his burden of showing that protected conduct was a motivating in the Respondent's discharge of Hanscom, Niciforo, Leung, and Brodhurst, and that the Respondent's contention that all four discriminatees would have been terminated for lawful reasons absent their protected activity is not supported by the record. It found merit in the General Counsel's exception to the judge's failure to find that Brodhurst's discharge, which was based not only on his union activity but also on his protected concerted activity in protesting a pay reduction, independently violated Section 8(a)(1) as well as Section 8(a)(3). This finding does not affect the judge's recommended Order.

In adopting the judge's finding that the Respondent violated Section 8(a)(5) and (1) by reducing employees' pay effective February 1, 1998, without bargaining with the Union, the Board relied on, in addition to the credited evidence cited by the judge, the Respondent's stipulation that Ed and Ted Morse "wholly owned" Global Warranty Corp., and the record evidence establishing that the Morses had a major interest in Fidelity Warranty Services. The Respondent contended two "outside" warranty companies imposed the pay reduction. The Board noted the periodic changes in the "Chilton's manual" of approved work time estimates, also relied on by the Respondent, are correlated to highly specific repair tasks and "do not provide a basis for generalized pay reductions of the type imposed by the Respondent on this occasion."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by National Organization of Industrial Trade Unions; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Miami, January 11-15 and Feb. 22-24, 1999. Adm. Law Judge Howard I. Grossman issued his decision Sept. 7, 1999.

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Asplundh Tree Expert Co. (9-CA-36005; 336 NLRB No. 116) Cincinnati, OH Nov. 30, 2001. In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) of the Act by threatening to lay off Dennis Brinson and by discharging Brinson and Eric Crabtree because they concertedly complained about working conditions and briefly withheld their services in support of their complaints while they were on a temporary work assignment in Canada. [HTML] [PDF]

The Respondent contended, among others, that the Board lacked jurisdiction over the unfair labor practices alleged because the events that gave rise to this case took place in Canada. In rejecting the Respondent's contention, the judge said that Brinson and Crabtree were Americans living in the United States whose regular work was performed in the United States, and whose conduct consisted of protesting working conditions on a brief, temporary job in Canada.

The Respondent did not simply replace Brinson and Crabtree on their Canadian assignment, the Board asserted, but instead, as the judge found, effectively fired them from their jobs in the United States. The Board agreed with the judge that assertion of jurisdiction will not lead to a conflict between the laws of the United States and Canada or otherwise interfere with foreign relations. It wrote: "Although the Act does not protect Americans who are permanently employed outside of the United States, even by American firms, Americans whose permanent employment relationships are with American firms in the United States do not lose the protection of the Act while on temporary assignment outside of this country, particularly where extending the Act's protections would not interfere with the laws of another nation. As we have found, no circumstances here implicate the concerns associated with extraterritorial application of domestic law."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Dennis A. Brinson; complaint alleged violation of Section 8(a)(1). Hearing at Cincinnati on June 3 and 4, 1999. Adm. Law Judge Richard H. Beddow, Jr. issued his decision Sept. 22, 1999.

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Bell Atlantic Corp. (2-CA-32010; 336 NLRB No. 113) New York, NY Nov. 30, 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 failing to notify and bargain with the Union regarding its August 24, 1998 decision to close the Respondent's Brooklyn and Manhattan, NY offices and to permanently transfer bargaining unit work from those offices to non unit facilities. The judge found that the Union waived any right it had under the Act to bargain about these decisions by its inaction. [HTML] [PDF]

It was undisputed that the Respondent's decision to relocate unit work was a mandatory subject of bargaining under Dubuque Packing Co., 303 NLRB 386 (1991), enfd. 1 F.3d 24 (D.C. Cir. 1993). The Respondent notified the Union of its plans to close the Brooklyn and Manhattan payroll office and to relocate unit work on August 24 and contended that its notification was timely because implementation of the plan was not scheduled to commence for at least 6 months. The General Counsel and the Union argued that the Respondent's notice to the Union on August 24 was nothing more than a "fait accompli" because of the Respondent's almost simultaneous announcement to the employees and its denial of the Union's request that it postpone the scheduled announcement.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by the Communications Workers (CWA); complaint alleged violation of Section 8(a)(1) and (5). Hearing in New York, October 6-8 and 29, 1999. Adm. Law Judge Michael A. Marcionese issued his supplemental decision April 5, 2000.

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Mercy Healthcare Sacramento d/b/a Mercy General Hospital, et al. (20-RC-17563; 17564; 336 NLRB No. 109) Rancho Cordova, CA Nov. 20, 2001. By direction of the Board, the Associate Executive Secretary granted the Petitioner's motion and vacated the Board's Decision and Direction of Second Elections reported at 334 NLRB No. 13 (2001). Based upon the parties' settlement agreement containing a labor relations accord, the Petitioner withdrew its petitions in this matter. See Caterpillar, Inc., 332 NLRB No. 101 (2000). [HTML] [PDF]

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William Lawrence, Darnell Price, James Simons, Clifton S. Key, and Joe Davis, individually and as partners d/b/a Aiken Underground Utility Services (11-CA-16393; 336 NLRB No. 102) Aiken, SC Nov. 20, 2001. The Board ordered William Lawrence, Darnell Price, and Joe Davis, individually and as partners d/b/a Aiken Underground Utility Services, to pay Zerretta Cave and Mildred Sanders backpay totaling $17,850 and $11,574, respectively; and that Clifton S. Key and James Simons, as partners, are liable only to the extent of their partnership property. In 1997, the Board found that Lawrence, Price, and Davis, individually and as partners d/b/a Aiken violated Section 8(a)(4) and (1) of the Act by denying employment to Cave and Sanders. 324 NLRB 187. The Board ruled that Simons did not receive the necessary notice of the unfair labor practice proceeding to impose derivative liability on him in this supplemental compliance proceeding, stating: [HTML] [PDF]

[I]t is undisputed that Simons was no longer a partner at the time of the underlying unfair labor practice proceeding or at the time the complaint was served. Nor does the General Counsel allege that there was an alter ego, successor, or single employer relationship between Simons and the partnership. Accordingly, we find that service on the named Respondents [Lawrence, Price, and David] in the underlying proceeding was insufficient notice to Simons, and that he is therefore not derivatively liable, individually or jointly and severally, for the backpay remedy.

Our finding that Simons is not liable, however, does not shield any extant partnership property in which he may have an interest. Here, Davis and Price were found-after notice and opportunity to be heard-to be among the parties liable for violating Section 8(a)(1) and (4). These unlawful acts were undertaken in the ordinary course of the partnership business, in October 1994, when Davis and Price were partners with Simons. The liability of Davis and Price is therefore directly imputable to the partnership of Simons, Price and Davis et al., and Simons is thus liable for the backpay remedy to the extent of his partnership property.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Hearing at Aiken on May 1, 2000. Adm. Law Judge Keltner W. Locke issued his decision June 22, 2000.

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Laborers District Council of Chicago and Operating Engineers Local 150 (Henkels & McCoy) (13-CD-604-1, 607-1; 336 NLRB No. 108) Chicago, IL Nov. 16, 2001. Relying on employer assignment and preference, area and industry practice, relative skills and training, and economy and efficiency of operations, the Board awarded the work in dispute to employees of Henkels & McCoy, Inc., represented by the Laborers District Council of Chicago and Operating Engineers Local 150, rather than those represented by Electrical Workers IBEW Local 196. The disputed work involves underground conduit and manhole work, including operation of backhoes and all heavy construction equipment, and excavating and placing of multi-way duct banks and manholes throughout Excelon Corp.'s northern region of Illinois, mostly in the Chicago area. [HTML] [PDF]

The Employer has collective-bargaining agreements with all three Unions covering the disputed work, but it assigned the work to employees represented by the Laborers and Operating Engineers Local 150. IBEW Local 196 filed a grievance seeking reassignment of the work to members of its bargaining unit. Operating Engineers Local 150 and the Laborers each threatened to strike the Employer to protect their jurisdiction, unless the Employer withdrew from the grievance proceeding.

Most contractors in both the Northern Illinois region and the Chicago area assign underground work (UG work) to operating engineers and laborers. Employees represented by the Laborers and Local 150 have complete extensive training dealing specifically with UG work. Employees represented by IBEW Local 196 do not receive any formal training to perform such work and are expected to learn "on the job." Local 196 maintained that members of its bargaining unit should be awarded the work because the ductwork will ultimately house electrical cables. The Board noted however that the UG work is a significant step in the process and precedes the actual laying of the electrical cable and may not fairly be characterized as "incidental" to laying electrical cables.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Tri-Clover, Inc. (30-CA-15004, et al.; 336 NLRB No. 110) Kenosha, WI Nov. 20, 2001. The Board granted the Respondent's motion to dismiss the complaint allegations that it violated Section 8(a)(3) and (1) of the Act by giving verbal disciplinary warnings to, and ultimately laying off, employee Steve Kurta for engaging in protected concerted activities and Section 8(a)(5) and (1) by unilaterally transferring at least two unit positions outside the unit, eliminating at least three unit positions and laying off the employees holding those positions, and subcontracting unit work to a laid-off employee. The Board agreed with the Respondent that the unfair labor practice allegations should be deferred to the grievance-arbitration procedure of the parties' collective bargaining agreement. [HTML] [PDF]

The General Counsel contended that the matter is not appropriate for deferral because the contractual grievance procedure is not final and binding in view of the provisions reserving to the parties the right to strike or lockout if the other party does not implement the arbitral award within 30 days. The Board, however, agreed with the Respondent that the arbitration procedure provided under the collective-bargaining agreement is final and binding despite the strike and lockout provisions.

Paragraph 23(d) of the parties' agreement explicitly states that the decision of the arbitrator shall be "final and binding," the Board noted, adding: "This clear language is not rendered inoperative, as the General Counsel suggests, by the language in paragraph 23(f) allowing the prevailing party to strike or lockout in the event of the other party's noncompliance with the arbitration decision. Paragraph 23(f) merely reinforces the finality of the arbitration procedure by adding another means of enforcing compliance, if necessary." The Board noted further that noncompliance with an arbitral award under the contract would also violate Wisconsin State statutory provisions prohibiting the violation of the terms of a collective-bargaining agreement and the refusal to accept the final determination of a tribunal having jurisdiction over a matter. See Wis. Stat. § 111.06; see also T & J Komp Electric, WERC Decision No. 26660-A (March 26, 1991).

The Order dismissing the complaint provided that: the Board retains jurisdiction of this proceeding for the limited purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Order, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result that is repugnant to the Act.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Professional & Technical Engineers Local 92; complaint alleged violation of Section 8(a)(1), (3) and (5).

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Carpenters Northeast Illinois District and Locals 13 and 1185 (Millenium Construction) (13-CD-597, 601; 336 NLRB No. 96) Chicago, IL Nov. 9, 2001. The Board in this Section 10(k) proceeding determined that Millenium's employees represented by Laborers Local 6 are entitled to perform the installation of dry wall, cabinetry, wood trim and baseboards, doors, countertops and appliances, hardwood floors and subflooring, framing work, and general clean-up work performed by Millenium at its jobsites located at 841 W. Monroe Street and 910 W. Madison Street in Chicago, Illinois. In making the award, the Board relied on the factors of employer preference, current work assignment, and the economy and efficiency of operations. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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IRIS U.S.A., Inc. (32-CA-17763, 32-RC-4669; 336 NLRB No. 98) Stockton, CA Nov. 9, 2001. Members Liebman and Walsh adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by maintaining a rule in its handbook that instructs employees to keep information about employees strictly confidential. Citing Farah Mfg. Co., 187 NLRB 601, 602 (1970), the majority said that the mere maintenance of an unlawful rule "serves to inhibit the employees' engaging in other protected organizational activity." Additionally, Members Liebman and Walsh stated: [HTML] [PDF]

[T]he rule here was strengthened by language adding that '[a]ny doubts about the confidentiality of information should be resolved in favor of confidentiality.' By this language, which sent the clear message to its employees that any questions about the applicability of this rule must be resolved on the side of prohibiting the disclosure of the information, the Respondent further suggested to employees that engaging in certain Section 7 activities would not be tolerated. In these circumstances, we find that the Respondent's maintenance of this unlawful rule during the critical period may have directly accounted for the Petitioner's margin of defeat. [The revised tally of ballots reflected 43 votes for, and 43 against, the Union.] Accordingly, we shall adopt the judge's findings and direct a new election.

Chairman Hurtgen, dissenting in part, agreed with his colleagues that the Respondent's maintenance of the non-disclosure rule was unlawful. However, he did not find that the mere maintenance of the rule warrants overturning the election and, therefore, would certify the election results. He noted that the rule antedated the Union's campaign and found no evidence that the rule was promulgated in response to any union or protected activity. In the Chairman's view, there is no evidence that the rule was ever enforced in connection with the Union or other concerted activity, that the Employer applied the rule at any relevant time, and that the rule caused any employee to refrain from discussing wages, hours, and terms and conditions of employment, or in any way impeded exercise of protected rights during the critical period prior to the election. He found it "virtually impossible to conclude that the [mere maintenance of the rule] could have affected the election results."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Machinists Lodge 2182; complaint alleged violation of Section 8(a)(1). Hearing on Dec. 14, 2000. Adm. Law Judge Mary Miller Cracraft issued her decision April 5, 2001.

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Outdoor Venture Corporation (O.V.C.) (9-CA-34709, et al.; 336 NLRB No. 97) Stearns, KY Nov. 9, 2001. In the earlier proceeding reported at 327 NLRB 706 (1999), the Board denied the Respondent's motion for summary judgment in Case 9-CA-34709. In this supplemental decision and order, Chairman Hurtgen and Member Liebman affirmed the administrative law judge's recommended dismissal of the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate the strikers on their unconditional offer to return to work and withdrawing recognition from the Union in March 1997 and Section 8(a)(5) and (1) by ceasing to withhold union dues in August 1997 pursuant to a checkoff arrangement authorized by the collective-bargaining agreement. [HTML] [PDF]

In the fall of 1995, the Respondent and the Union began negotiations for a new collective-bargaining agreement to replace the contract that expired in November 1995. The parties were unable to reach an agreement that satisfied the employees and on August 12, 1996, the employees began an economic strike. On September 26, the Respondent's president and chief executive officer, J.C. Egnew, met with strikers on the picket line and discussed a wide range of matters that were also subjects of negotiations. Negotiations continued and the strike ended on February 26, 1997 when the Union made an unconditional offer to return to work on behalf of the striking employees. The Respondent refused to offer immediate reinstatement on the basis that the strike was economic and the strikers had been permanently replaced. The Respondent subsequently withdrew recognition from the Union, relying on a decertification petition signed by a majority of its work force, including replacements.

The judge found that the Respondent engaged in unlawful direct dealing at the September 26 meeting on the picket line but determined the General Counsel failed to prove that the direct dealing contributed to prolonging the strike. The majority upheld the judge's finding that the strike remained economic at all times. The Union contended that the judge erred in finding that a strike by the Respondent's employees was not converted to an unfair labor practice strike.

Dissenting in part, Member Walsh would remand this case to the judge to explicitly resolve a material conflict in the testimony and determine precisely what was said at the September 26, 1996 meeting between the Respondent and strikers on the picket line. He found merit in the Union's argument that if Egnew unlawfully made promises to the employees on September 26, those promises may have contributed to prolonging the strike.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Needletrades Employees (UNITE); complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing at Whitley City, KY on June 15 and 16, 1999. Adm. Law Judge James L. Rose issued his decision Sept. 15, 1999.

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All Seasons Construction, Inc. (15-CA-14748, et al.; 336 NLRB No. 94) Shreveport, LA Nov. 8, 2001. The Board affirmed the administrative law judge's ruling that the Respondent violated Section 8(a)(1) of the Act by, among others, interrogating employees about their union affiliation, telling them that there will be no wage increases, threatening them with unspecified reprisals and imposing a discriminatory no-talking rule, and Section 8(a)(3) by disciplining, suspending, and laying off an employee, refusing to hire or consider for hire five individuals, and refusing to consider for hire six individuals. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Carpenters Local 764; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Shreveport on January 23 and 24, 2001. Adm. Law Judge Jane Vandeventer issued her decision June 29, 2001.

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Pontiac Osteopathic Hospital (7-CA-42660; 336 NLRB No. 101) Detroit, MI Nov. 14, 2001. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its paid-time off (PTO) benefits and procedures for technical employees without affording the Auto Workers (UAW) an opportunity to bargain with respect to the change and its effects. The Board found, as did the judge, that the Union made a timely and sufficient demand to bargain with the Respondent regarding these changes. It also found the Respondent presented the changes to the Union as a fait accompli and the Union did not waive its right to bargain over the changes. [HTML] [PDF]

Chairman Hurtgen did not pass on whether the Union made a request to bargain about the PTO, explaining: "Even assuming arguendo that there was a failure to make such a request, the Respondent's presentation of a fait accompli meant that such a failure was excused and was not tantamount to a license for Respondent to make the unilateral change."

The Board entered an order requiring the Respondent to cease and desist from unilaterally changing its PTO policy and procedures without first bargaining to a lawful impasse with the Union; to rescind, as to the technical unit, the January 2, 2002 PTO policy changes; and to make unit employees whole for any losses they may have suffered as a result of the Respondent's unlawful unilateral changes in the PTO program and procedures. In a clarification of the judge's recommended remedy, the Board required the Respondent to permit unit employees to restore used paid time off to their PTO banks by paying back the Respondent for any used paid time off that they want restored to their bank.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Auto Workers UAW; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit on Sept. 27, 2000. Adm. Law Judge Nancy M. Sherman issued her decision Dec. 14, 2000.

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Kodiak Electric Co. and Kodiak Line Co. (5-CA-28319; 336 NLRB No. 103) Baltimore, MD Nov. 13, 2001. The Board affirmed the administrative law judge's conclusions, as modified, and held that (1) Kodiak Electric Co.'s sole owner and president, Timothy Demski, created Kodiak Line Co., in substantial part, to evade obligations under Kodiak Electric's contract with Electrical Workers IBEW Local 24; (2) Kodiak Line is the disguised continuance of, and the alter ego of, Kodiak Electric Co.; (3) the Union is the exclusive collective-bargaining representative of certain unit employees within the meaning of Section 8(f) of the Act; and (4) the Respondent violated Section 8(a)(5) and (1). [HTML] [PDF]

Specifically, the Respondent unlawfully refused to apply the terms of its collective-bargaining agreements with the Union to the unit employees, including payment to them of contractual wages and payment on their behalf of fringe benefits contributions; failed to honor the contractual referral procedures and, instead, hired employees directly and without notification to the Union; and repudiated its recognition of, and contract with, the Union by causing work obtained by Kodiak Electric Co. to be performed by Kodiak Line Co.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Electrical Workers IBEW Local 24; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Baltimore, Jan. 27 and Feb. 15-16, 2000. Adm. Law Judge Irwin H. Socoloff issued his decision Nov. 27, 2000.

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Stemlit Growers, Inc. (19-CA-26777; 336 NLRB No. 95) Wenatchee, WA Nov. 5, 2001. Affirming the administrative law judge, the Board dismissed the complaint alleging that the Respondent violated Section 8(a)(3) of the Act by suspending and discharging employee Asuncion Santiago for union activity, following a history of resistance to Teamsters Local 760. In defense, the Respondent contended it suspended and then discharged Santiago pursuant to company policy for a violent act-deliberately pushing his packing cart towards another employee. [HTML] [PDF]

Members Liebman and Walsh found it unnecessary to pass on the judge's finding that the General Counsel failed to satisfy his initial burden under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), to establish that Santiago's union activity was a motivating factor in the Respondent's decision to suspend and discharge him. Assuming the General Counsel met his threshold burden under Wright Line, they agreed with the judge that the Respondent demonstrated it would have suspended and discharged Santiago even in the absence of his union activity.

Chairman Hurtgen would affirm the judge's decision in its entirety, including his finding that the General Counsel failed to establish that Santiago's union activity was a motivating factor in the Respondent's decision to suspend and discharge him.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 760; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Wenatchee, Jan. 31 and Feb. 1, 2001. Adm. Law Judge Jay R. Pollack issued his decision June 20, 2001.

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Raven Government Services, Inc. (16-CA-18516, et al.; 336 NLRB No. 99) Ft. Worth, TX Nov. 6, 2001. The Board granted the Acting General Counsel's motion for clarification or modification of the underlying decision and order reported at 331 NLRB No. 84 (2000), and clarified that the Respondent shall make whole unit employees laid off or discharged as a result of its unlawful unilateral changes in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), and for other losses suffered as a result of the unlawful changes in accordance with Ogle Protection Service, 183 NLRB 682 (1970). In the prior decision, the Board held the Respondent violated Section 8(a)(5) and (1) of the Act by among others, making various unilateral changes and ordered the Respondent to make the unit employees whole for any losses suffered in accord with Ogle Protection Service, rather than F.W. Woolworth Co., cited by the judge. [HTML] [PDF]

The Board clarified the prior order, agreeing with the Acting General Counsel that the remedial modification in the original decision and order, failed to account for undisputed record evidence that the Respondent's unlawful unilateral elimination of certain job classifications had resulted in the layoff or discharge of unit employees. It also agreed the original Order should include the traditional remedial requirement, independent of the backpay remedy, requiring the Respondent to make whole, employees discharged or laid off as a result of its unlawful unilateral action by offering immediate reinstatement to their former jobs.

The Respondent argued the Acting General Counsel's motion was incorrectly filed under Section 102.49 of the Board's Rules and Regulations and is actually a motion for reconsideration that should be denied as untimely filed under Section 102.48(d). Alternatively, the Respondent argued if the Board grants the Acting General Counsel's motion, it should also grant the Respondent's motion to modify the underlying decision by reconsidering whether a management-rights clause gave the Respondent unilateral authority to eliminate certain job classifications and to lay off affected employees.

Denying the Respondent's motion, the Board ruled the Acting General Counsel properly filed the motion under Section 102.49, citing Dorsey Trailers, Inc., 322 NLRB 181 (1996), which dealt with the specific issue presented here. It added: "As a general matter, of course, the Board has full authority over the remedial aspects of its decisions, even in the absence of exceptions. See, e.g., Indiana Hills Care Center, 321 NLRB 144 fn. 3 (1996); Dorsey Trailers, supra, 322 at 181 fn. 4. The remedial modifications we make today properly correct inadvertent errors by the Board and the judge."

The Board found Community Medical Services, 239 NLRB 1244 (1970), and NLRB v. Selvin, 527 F.2d 1273, 1276 (9th Cir. 1975), cited by the Respondent, do not support its argument, stating: "In both cases, the time requirement for filing of the disputed motions were controlled by Section 102.48(d), and each decision drew a clear distinction between motions filed under that section and motions, or actions taken sua sponte by the Board under Section 102.49. Therefore, we find that the Acting General Counsel's motion properly raised a remedial issue."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Made in France, Inc. (20-CA-29112, et al.; 336 NLRB No. 86) San Francisco, CA Oct. 29, 2001. The Board affirmed the administrative law judge's finding that the Respondent had engaged in certain unfair labor practices during the course of the Union's organizing campaign--including discharging warehouse employees Joseph O'Neil and Pam Nixon for engaging in union activities, and locking the warehouse gate without justification in response to the Union's request for recognition, and directed that a second election be held. The Union lost the first election, held on June 11, 1999, by a vote of 3 for the Union, 10 against, with 1 challenge. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Longshoremen ILWU Local 6; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Francisco, Sept. 22 - 24, and Oct. 4 - 7, 19 - 22, 1999. Adm. Law Judge Gerald A. Wacknov issued his decision April 7, 2000.

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Pearson Education, Inc. (25-CA-26182; 336 NLRB No. 92) Indianapolis, IN Oct. 31, 2001. The Board agreed with the administrative law judge that the first representation election held on August 13, 1997, which UNITE lost, was properly set aside, and that the Respondent was properly ordered to bargain with the Union based on the results of the second election and the Union's certification. The Board reaffirmed its original Order reported at 327 NLRB No. 17 (1998) finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union and directing the Respondent to recognize and bargain with UNITE. It rejected the Respondent's contentions that the voting unit is no longer appropriate due to "changed circumstances," including (1) a change in its ownership; (2) the relocation and consolidation of two facilities into a single facility; (3) the installation of new equipment; and (4) substantial employee, supervisory, and managerial turnover. [HTML] [PDF]

In the underlying representation proceeding, the Regional Director set aside the first election based on the Union's Objection 2, one of eight objections. Neither the Regional Director nor the Board passed on the remaining seven objections. The Board ordered a new election, held on June 11, 1998, which the Union won. The Respondent subsequently refused to recognize and bargain with the Union and, on October 30, 1998, the Board issued its order finding that the Respondent's conduct violated Section 8(a)(5) and (1). The D.C. Circuit granted the Respondent's petition for review of the Board's order and remanded the case for the Board's further consideration. MacMillan Publishing Co. v. NLRB, 194 F.3d 165 (D.C. Cir. 1999).

On remand, the Board ordered a hearing before the judge on the Union's original eight election objections. At the outset of the hearing, the Union withdrew four objections and the judge renumbered the others. He did not make a finding on Objection 1 and recommended, with Board approval, sustaining Objections 2, 3, and 4. Renumbered Objection 2 is the same Objection 2 considered previously. The judge found the Respondent's distribution of a promised wage increase, just days before the election, was objectionable and independently sufficient to set aside the election. Objection 3 alleged that the Respondent engaged in impermissible electioneering by displaying an antiunion poster near the polling area on the day of the election. Objection 4 alleged that the Respondent engaged in objectionable conduct by threatening employees that negotiations would "start at zero" if they selected union representation.

In sustaining Objection 3, the Board applied Boston Insulated Wire & Cable Co., 259 NLRB 1118 (1982), enfd. 703 F.2d 876 (5th Cir. 1983), which sets forth the factors for evaluating allegations of objectionable electioneering, noting Peerless Plywood Co., 107 NLRB 427 (1953), cited by the judge, does not apply to posters or other campaign literature, but rather prohibits captive-audience campaign speeches within 24 hours of an election.

Chairman Hurtgen, in agreeing with his colleagues' disposition of this case, found it unnecessary to pass on Objections 3 and 4.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Adm. Law Judge Martin J. Linsky issued his decision Dec. 29, 2000.

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Be-Lo Stores (11-CA-14586 (formerly 5-CA-21583), et al.; 336 NLRB No. 89) Norfolk, VA Oct. 29, 2001. The Board adopted the administrative law judge's recommended order that the Respondent pay Kelly Boone and Jamie Wischmann a total of $36,183.98 plus interest in backpay and $15,020.55 for 401(k) plan moneys plus accrued earnings. In its prior decision and order reported at 318 NLRB 1 (1995), the Board found Boone and Wischmann were unlawfully discharged by the Respondent. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Adm. Law Judge Jane Vandeventer issued her supplemental decision Sept. 7, 2000.

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Union de Obreros de Cemento Mezclado (Betteroads Asphalt Corp.) (24-CB-1808, 1900; 336 NLRB No. 91) San Juan, PR Oct. 31, 2001. The Board in this matter concluded that the Union violated Section 8(b)(1)(A) of the Act when it failed to represent laid-off employee Manuel Almanzar in a fair and impartial manner before the arbitrator because of his protected concerted activity of engaging with other employees in an effort to change both the shop steward and the union's leadership. [HTML] [PDF]

When Almanzar returned to the bargaining unit after a brief stint in a supervisory position, the Employer notified him that he would occupy his former position with his prior seniority. The Union, however, insisted that, under the contract, Almanzar could not retain his old seniority because he had "resigned" when he accepted the supervisory position. The Employer then changed its position and denied Almanzar his prior seniority. Subsequently, the Employer laid off Almanzar and eight other unit employees. (It is undisputed that Almanzar would not have been laid off had he not been denied 10 years of seniority.) Almanzar filed a grievance over his layoff, and the grievance was processed to arbitration.

The judge stated that at the arbitration hearing, "the Union and the company both took the position that because Almanzar accepted a position as supervisor in June 1996, he 'resigned' as that term is used in the collective bargaining agreement and therefore lost all of his past seniority." The Board, however, contends that rather than taking the same position as the Employer, the Union took no position on the merits of Almanzar's grievance. The Board said "[i]t is well established that a union breaches its duty of fair representation toward employees it represents when it engages in conduct affecting those employees' employment conditions which is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171 (1967).

The Board found the Union's position that Almanzar "resigned" when he moved from a unit position to a supervisory position was an unreasonable interpretation of the contract which the Union continued during the processing of Almanzar's grievance, stating: "Although, by the time the grievance reached arbitration, the Union did not take a formal position on the merits of the grievance, the Union, by its silence, cannot escape responsibility for all of its preceding conduct. . . . [B]y remaining silent before the arbitrator, the Union did not adopt a truly neutral stance on the merits of the grievance, but, rather, perpetuated the unreasonable contract interpretation it had advanced since the beginning of the dispute because of its ill will toward Almanzar."

Chairman Hurtgen does not necessarily agree that the resignation argument was unreasonable. He agreed however that the Union was motivated by Almanzar's Section 7 activities within the Union.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Manuel Almanzar, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing in Puerto Rico, Oct. 6, 1999. Adm. Law Judge Raymond P. Green issued his decision Jan. 7, 2000.

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Cable Car Advertisers, Inc., d/b/a Cable Car Charters (20-CA-25377, 25789; 336 NLRB No. 85) San Francisco, CA Oct. 29, 2001. The Board, in this supplemental decision and order, adopted the administrative law judge's recommendations and ordered the Respondent to pay the discharged employees the amounts set forth opposite their names for a total of $141,479.06 plus interest. It ordered that backpay for Rudy Galindo Ortiz be paid to the Regional Director and held in escrow for a period not to exceed 1 year from the Respondent's compliance or the date the supplemental decision becomes final, including enforcement, whichever is later. If Ortiz is not located within that time period, his backpay shall be returned to Respondent. Member Walsh did not participate in the decision on the merits. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Adm. Law Judge Jay R. Pollack issued his supplemental decision March 7, 2001.

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Cassis Management Corp. (2-CA-29311; 336 NLRB No. 90) Freeport, NY Oct. 31, 2001. The Board affirmed the administrative law judge's rulings in this second supplemental decision and order but modified the total amount of backpay due the six discharged employees. It ordered the Respondent to pay a total of $197,666.24 plus interest, but held that the amounts set forth reflect the backpay due through the first quarter of 1999. Finding that the Respondent has not made a valid offer of reinstatement to Charles Allien, Louis Cioffi, Nicolas Michel, or Charles Morrow, the Board asserted that their backpay periods will continue to run until the Respondent makes such an offer. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Adm. Law Judge Howard Edelman issued his decision Nov. 10, 1999.

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Robert W. Lockhart, d/b/a Lockhart Concrete (8-CA-31765; 336 NLRB No. 88) Akron, OH Oct. 31, 2001. The Board granted the General Counsel's motion for summary judgment, denied the Respondent's motion for leave to file an answer, and found that the Respondent violated Section 8(a)(1), (3), and (5) of the Act by: failing to recall and then discharging Curtis B. Hough and John D. Wright because they joined and assisted the Union and engaged in concerted activities, and failing to bargain with the Union regarding the recall of employees from seasonal layoff, the agreement reached regarding the recall, or the unilateral actions taken by the Respondent regarding the recall. [HTML] [PDF]

The Respondent failed to answer the complaint allegations within the allotted time. After issuance of the Board's Notice to Show Cause why the General Counsel's motion for summary judgment should not be granted, the Respondent, pro se, filed a motion for leave to file an answer, claiming that due to financial constraints, he attempted to handle the case without counsel but would retain legal representation if given leave to file an answer. In a March 22, 2001 answer, the Respondent provided no explanation sufficient to constitute good cause for its failure to file a timely answer. On March 27, through counsel, the Respondent stated that the Respondent and a company known as Lockhart Construction are separate companies with one counsel and that counsel was busy on a Chapter 11 bankruptcy filing for Lockhart Construction. As a result, the Respondent argued the need for filing an answer was overlooked.

Citing Kenco Electric & Signs, 325 NLRB 1118 (1998), and A.P.S. Production/A. Pimental Steel, 326 NLRB 1296, 1297 (1998), the Board said that "when determining whether to grant a Motion for Summary Judgment, the Board has shown some leniency toward respondents who proceed without benefit of counsel." However, it held "[w]here a pro se respondent fails to respond to the complaint until after the Notice to Show Cause has issued?despite having been reminded in writing to do so?and has provided no good cause explanation for its failure to do so, subsequent attempts to answer the complaint will be denied as untimely."

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Machinists Local 1363, District 54; complaint alleged violation of Section 8(a)(1), (3) and (5). Acting General Counsel filed motion for summary judgment Feb. 5, 2001.

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Sea Ray Boats, Inc. (12-CA-19077, et al.; 336 NLRB No. 70) Merritt Island, FL Oct. 1, 2001. The Board affirmed the administrative law judge's finding that the Respondent had engaged in certain unfair labor practices, including the adoption of a "two strike" rule--prohibiting union talk and providing for the issuance of a warning for the first offense and termination for the second offense--in response to the advent of the Union's organizing campaign. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Teamsters Local 385; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cocoa, April 27-28, 1999. Adm. Law Judge Lawrence W. Cullen issued his decision Sept. 30, 1999.

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Ryder Student Transportation Services, Inc. (17-CA-20128; 336 NLRB No. 78) Columbia, MO Oct. 1, 2001. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act when on April 9, 1999, it interrogated and then discharged employee Louis Tritschler because he engaged in union or protected concerted activities. It agreed with the judge that Tritschler was a rank-and-file employee and not a supervisor, manager, or confidential employee. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Louis Tritschler, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Columbia on Jan. 11, 2000. Adm. Law Judge William N. Cates issued his decision Feb. 1, 2000.

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Federal Security, Inc. and its alter egos or agents, James R. Skrzypek and Janice M. Skrzypek (13-CA-38669; 336 NLRB No. 52) Chicago, IL Oct. 1, 2001. The Board adopted the recommendations of the administrative law judge and held that the Respondents violated Section 8(a)(1) of the Act by filing an Illinois State court lawsuit seeking monetary damages from former employees. The Board ordered the Respondents to take affirmative action within 7 days after service of its decision and order to have the lawsuit in this case dismissed and the default orders in the proceeding vacated. [HTML] [PDF]

The State court lawsuit seeks to recover moneys expended by the Respondents to defend against the allegations in the earlier unfair labor practice case where the Board, in agreement with the judge, found that the Respondent violated the Act by, among others, terminating its security guards for participating in a protected concerted walkout from their posts at multi-residence public housing sites operated by the Chicago Housing Authority (CHA) and misinforming the CHA as to the nature of the walkout, with the result that participants were included on a list of employees barred from working at CHA properties. 318 NLRB 413 (1995), enf. denied NLRB v. Federal Security, Inc., 154 F.3d 751 (7th Cir. 1998).

In the instant matter, the Respondents contended that the Board lacked jurisdiction; that Federal Security no longer exists as a corporation; and the Skryzpeks are simply individuals who are not presently engaged in interstate commerce. Respondents also asserted that the former employees--the defendants in the State court action--are no longer employees of Federal Security or employees under the Act.

Member Truesdale noted that in the earlier proceeding, he would not have found the walkout by Federal Security's guard employees to be protected and consequently, would not have found their discharge by Federal Security to be unlawful. However, he agreed with the judge that the State court lawsuit at issue in this case violated Section 8(a)(1).

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Joseph Palm, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Chicago on March 13, 2001. Adm. Law Judge Robert A. Giannasi issued his decision May 1, 2001.

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Fallon-Williams, Inc. and its alter egos G.B.S. Consultants, Ltd., d/b/a Fallon-Williams Services, and Mercury Merchanical Services, Inc. (1-CA-34968, 35272; 336 NLRB No. 54) Boston and Quincy, MA Sept. 30, 2001. A Board majority of Members Liebman and Truesdale, with Chairman Hurtgen dissenting in part, adopted the administrative law judge's findings that Respondents G.B.S. Consultants (GBS) and Mercury Mechanical Services (Mercury) violated Section 8(a)(5) and (1) of the Act by repudiating their collective-bargaining agreement with the Union, failing to apply the provisions of the agreement to the operations of Mercury, and failing and refusing to furnish the Union with relevant information. The majority determined that the complaint did not allege any unlawful conduct during 1995 and early 1996 and, accordingly, dismissed the complaint with regard to Respondent Fallon-Williams, Inc., which permanently ceased to perform work in June 1995; and found that GBS and Mercury violated the Act only beginning August 18, 1996. [HTML] [PDF]

In his decision, the judge held that GBS was the successor to Fallon-Williams and that GBS assumed Fallon-Williams' collective-bargaining agreement with the Union. He also found that GBS and Mercury were alter egos, and concluded that Mercury acted unlawfully by failing to honor the terms of the contract and by failing to supply the requested information.

The Respondents contended they should be absolved from their duty to apply the contract terms that had been applied to Fallon-Williams. In June 1995, Fallon-Williams was more than $100,000 in arrears in payments to the union fringe benefit funds and by June 1996, GBS had reduced them to just over $50,000. At that point, the Union exercised its contractual right to remove the employees from GBS while GBS remained delinquent in payments. The Respondents argued they should not have to pay into the funds during periods in which the Union was refusing to supply employees because by removing the employees, the Union prevented GBS from fulfilling its contracts with customers and, consequently, from making further payments to the fund.

Dissenting in part, Chairman Hurtgen agreed with his colleagues that GBS is a successor to Fallon-Williams and that the two firms are not a single employer or alter egos. However, he does not agree that Mercury has been shown to be an alter ego of GBS. In his view, the General Counsel has failed to show that one entity is an alter ego of another by showing the transaction between the two was motivated by intent to avoid legal obligations under the Act.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Plumbers Local 537; complaint alleged violation of Section 8(a)(1) and (5). Hearing in Massachusetts. Adm. Law Judge Stephen J. Gross issued his decision Sept. 4, 1998.

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Overnite Transportation Co. (14-CA-25643, et al.; 336 NLRB No. 31) St. Louis, MO Sept. 28, 2001. The Board, in agreement with the administrative law judge, found that the Respondent violated Section 8(a)(1) of the Act by threatening an employee with disciplinary action if he crossed a picket line and fostering and aiding a Union decertification attempt by soliciting an employee to circulate a decertification petition and offering to pay the employee for time spent in circulating the petition. [HTML] [PDF]

The Respondent contended that the judge decided the credibility issues in this case based on the Respondent's prior unfair labor practices and thereby violated Rule 404 of the Federal Rules of Evidence. The fourth paragraph of the judge's decision included the following statement:

All of the events in the instant case have a highly charged, polarized atmosphere as a backdrop, familiar ground for the parties in this case. See Overnite Transportation Co., 296 NLRB 669 and Overnite Transportation Co., 329 NLRB No. 91, Slip Op. at 64. I have taken into account the history of this Respondent in assessing the various issues of this case, giving this history significant weight. Florida Steel Corp., 231 NLRB 651, 658 (1977).

The Board rejected the Respondent's contention that the statement establishes that all of the judge's credibility resolutions are necessarily tainted by reliance on Overnite's past violations of the Act. Rather, it found that the judge's credibility determinations were properly made on the basis of the evidence adduced in this proceeding.

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Teamsters Local 600; complaint alleged violation of Section 8(a)(1). Hearing at St. Louis on Feb. 5, 2001. Adm. Law Judge Robert A. Pulcini issued his decision April 30, 2001.

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Eldeco, Inc. (11-CA-16006, et al.; 336 NLRB No. 82) Greenville, SC Oct. 18, 2001. The Board denied the General Counsel's motion for partial summary judgment and remanded the proceeding to the Regional Director to schedule a hearing before an administrative law judge on the compliance specification allegations. The General Counsel contended the Respondent's answer and amended answer to the compliance specification were insufficient based on Section 102.56(c) of the Board's Rules and Regulations because they offered only a general denial to the gross backpay allegations. The Board however accepted the Respondent's response to the Notice to Show Cause why the General Counsel's motion should not be granted as a second amended answer that is sufficiently specific under the Board's Rules. [HTML] [PDF]

The Respondent's response set forth with specificity the Respondent's disagreement with the proposed backpay formula, and furnishes alternative figures. It is undisputed that the response, misfiled with the Region, was not timely filed with the Board. The Respondent submits it erred because of a miscommunication between the Region and a paralegal in the Respondent's Counsel's office. The Board noted it generally does not accept late-filed answers, but has made an exception where the answer was timely filed but with an incorrect office of the Agency. It added that although counsel for the General Counsel denied any knowledge of the alleged miscommunication, "the pleadings must be read in light most favorable to the nonmoving party," in denying the motions of the General Counsel and the Charging Party to reject the response.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

General Counsel filed motion for partial summary judgment May 14, 2001.

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Onyx Environmental Services, L.L.C., d/b/a Tradewaste Incineration (14-CA-25788, 14-RC-12080; 336 NLRB No. 83) Sauget, IL Oct. 23, 2001. The Board upheld, as modified, the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act and engaged in objectionable conduct affecting the results of the representation election held in Case 14-RC-12080 on October 21-22, 1999, by certain conduct. Specifically, the Respondent coercively interrogated employees about their protected concerted activity; interfered with their protected concerted activity by telling them that a notice regarding another employee's wage rate was inappropriate, harassing, and disruptive; predicted that it would lose its parent company's financial support and loss of customers if the employees elected the Union to represent them; and suspended employee Nathan Williams from October 8-22, 1999, for engaging in protected concerted activity. The Board set aside the election (Chemical Workers International/UFCW lost 56-46) and directed a second election. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Chemical Workers International/UFCW; complaint alleged violation of Section 8(a)(1). Hearing at St. Louis on March 8, 2000. Adm. Law Judge C. Richard Miserendino issued his decision Aug. 3, 2000.

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Nortech Waste (20-CA-28884; 336 NLRB No. 84) Roseville, CA Oct. 25, 2001. The administrative law judge found, and the Respondent did not except, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with Operating Engineers Local 3 by unilaterally implementing terms for the payment of yearend bonuses without prior notice to the Union. Addressing the General Counsel's and Charging Party's exception to the judge's failure to include a broad cease-and desist provision in his recommended Order, the Board noted it issued a broad order to remedy the unfair labor practices found in a recent case involving the same Respondent. Nortech Waste, 336 NLRB No. 79 (2001). Because of the Respondent's serious prior unfair labor practices, the Board agreed that a broad Order is warranted in this case and substituted broad injunctive language requiring the Respondent to cease and desist from violating the Act "in any other manner" for the judge's recommended provision. See Hickmott Foods, 242 NLRB 1357 (1979) (repeat offenders of the Act subject to broad injunctive relief). [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Operating Engineers Local 3; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Sacramento on July 20, 1999. Adm. Law Judge Timothy D. Nelson issued his decision Sept. 2, 1999.

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Oden Mechanical Contractors, Inc. (17-CA-20983; 336 NLRB No. 87) Ft. Riley, KS Oct. 26, 2001. Agreeing with the administrative law judge, the Board found that the Respondent refused to consider for hire and refused to hire James Cox, Dan Droge, and Kirk Miller because of their union activities or affiliation in violation of Section 8(a)(3) and (1) of the Act; and interrogated employees about their union sentiments and telling employees it will not consider them for hire if they are union and/or because of Plumbers Local 165. The Board rejected the Respondent's contention, relying on a long-outdated version of the Board's Rules and Regulations, that the judge erred by refusing to permit it to file a posthearing brief prior to the issuance of her bench decision, stating: [HTML] [PDF]

Had the Respondent accurately quoted the current version of Sec. 102.42, it would have revealed that there is no support for its contention that the judge's ruling was in error. Sec. 102.42 of the Board's Rules, as amended 61 Fed. Reg. 6940 (Feb. 23, 1996), provides '[i]n the discretion of the administrative law judge, any party may, upon request made before the close of the hearing, file a brief or proposed findings and conclusions, or both, with the administrative law, who may fix a reasonable time for filing, but not in excess of 35 days from the close of the hearing.'

The Board also rejected the Respondent's contention that it was denied due process by the judge's denial of its motion to produce certain material, known as "COMET material," pertaining to the Union's training of organizers. The subpoena was directed to the Union's assistant business agent and organizer, James Cox, who testified that he did not have the COMET materials in his possession and that he has never seen the material in the Union's office. The Board, noting Cox's testimony, found the judge properly denied the motion to produce.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Plumbers Local 165; complaint alleged violation of Section 8(a)(1). Hearing at Overland Park, April 4-5, 2000. Adm. Law Judge Jane Vandeventer issued her decision April 5, 2001.

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D & D Enterprises, Inc. d/b/a Beltway Transportation Co. (5-CA-22170; 336 NLRB No. 76) Forestville, MD Oct. 1, 2001. The Board affirmed the administrative law judge's recommended Order, reaffirmed its original Order reported at 319 NLRB 579 (1995), and ordered the Respondent to reinstate economic strikers Jimmy Williams and David Johnson to their former positions as regular run drivers and, on request, to bargain with Teamsters Local 639. The Board in 1995 found that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate Williams and Johnson to their former jobs and subsequently discharging them, and Section 8(a)(5) and (1) by withdrawing recognition from the Union at a time when it lacked objective evidence that the Union had lost the support of a majority of unit employees. Thereafter, the Board filed a petition for enforcement of its Order with the U.S. Court of Appeals for the Fourth Circuit. [HTML] [PDF]

On September 4, 1997, the court enforced the Board's findings that the Respondent had unlawfully failed to reinstate Williams and Johnson to their former positions as regular run drivers at the conclusion of the economic strike. NLRB v. D & D Enterprises, 125 F.3d 200 (4th Cir. 1997). The court remanded the case to the Board to determine whether, given the Respondent's subsequent discharges of Williams and Johnson from utility driver positions, it was still obligated to reinstate them to their former position as regular run drivers and whether the Respondent possessed a good-faith doubt of the Union's majority status when it withdrew recognition. Because it found that the employees' prestrike jobs were available poststrike, the court rejected the Respondent's contention that it had not violated Section 8(a)(3) by failing to reinstate Williams and Johnson to their prestrike positions as regular run drivers because it had reinstated them to the "substantially equivalent" position of utility driver when the strike ended.

After the Board accepted the court's remand, but before it remanded the case to the judge, it provided the parties an opportunity to state their positions on remand. In its position statement on remand, the Respondent placed in issue whether the court's factual finding--that both regular run drivers and utility drivers had to report to work at the same time--was correct. The Board in 1999 remanded the case to the judge to resolve the issues raised by the court and "to address whether regular drivers and utility drivers had to arrive at work at the same time and, if not, what effect this had, if any, on their failure to make a livable wage and abandonment of work."

In its supplemental decision, the Board found there were substantial differences between the regular run and utility positions that bear on the existence of a "causal nexus" between the Respondent's failure to reinstate Williams and Johnson to the regular run positions and its subsequent discharge of them from their utility run positions. It also found, addressing a specific issue remanded by the court, that Williams arrived at work on time as a utility driver, but was still unable to make a livable wage. The Board noted Johnson did arrive late for work on certain days after the strike, but had the Respondent reinstated him to his regular run position after the strike, as it was lawfully required to do, Johnson would have been on time for work on those days and would not have lost his run for the day. Assuming that Williams and Johnson did arrive late to work after the strike on certain days, there is still a "causal nexus" between the Respondent's failure to reinstate them to their regular run positions after the strike and their subsequent discharges for abandonment of work, the Board held, in affirming the judge's original finding that Respondent's discharge of them violated Section 8(a)(3) and (1).

Finding a causal relationship between the Respondent's unfair labor practices and the decertification petition signed by 14 of 28 unit employees, the Board held the petition was tainted by the Respondent's misconduct and the Respondent could not rely on it to support its asserted good-faith doubt of the Union's majority status. In so concluding, the Board considered the court's concerns that "many" of the petition signers professed ignorance of the Respondent's unfair labor practices relating to Williams and Johnson at the time they signed the petition; and the absence of any evidence suggesting a connection between employee disaffection from the Union and the Respondent's misconduct.

(Members Liebman, Truesdale, and Walsh participated.)

Adm. Law Judge John L. West issued his supplemental decision Aug. 20, 1999.

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Mackie Automotive Systems (10-CA-31189; 336 NLRB No. 27) Norcross, GA Sept. 28, 2001. Members Liebman and Walsh, with Member Truesdale dissenting, affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally, without notice to or consultation with Teamsters Local 728, discontinuing its practice of paying unit employees for their lunchbreak. [HTML] [PDF]

The Respondent operates an automobile parts warehouse (warehouse) in Norcross, Georgia and continuously supplies parts to General Motors Corp. at GM's automobile assembly plant in nearby Doraville, Georgia. The Respondent employs approximately 16 supply delivery truck drivers (the unit employees) at the warehouse. All of the other approximately 200 workers at the warehouse are employees of GM, but the Respondent supervises them. The Respondent's operational practice, established prior to the Union's certification as the exclusive representative of the unit employees, was to mirror the operating hours of the GM plant.

The majority agreed with the judge that the Respondent's adherence to its pre-Union past practice did not legitimize the Respondent's unilateral implementation of the 30-minute unpaid lunchbreak. It found that the Respondent's conduct was not justified on any other grounds, i.e., there was no contention or showing that the parties were at impasse when the Respondent unilaterally implemented the change, or that the Union was avoiding or delaying bargaining. The Respondent was not excused by compelling economic considerations from its obligation to bargain with the Union about the change in lunchbreak or excused by the fact that the unilateral change was prompted by a bona fide scheduling change implemented by GM.

Dissenting Member Truesdale said the critical issue is what exactly was the status quo that existed before the change. Finding that the Respondent's alteration of its midday scheduling was a routine modification consistent with past practices and thus did not violate the Act, he wrote: "[T]here is no evidence in the record that the Respondent ever paid employees for time not worked, whatever the reason, or ever scheduled its drivers during times the General Motors' production line was not running. The issue is simply whether the Respondent's conduct in effecting the . . . schedule change to continue these practices was unlawful because it was accomplished without bargaining. I conclude it was not."

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Teamsters Local 728; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Atlanta on Feb. 17, 1999. Adm. Law Judge William N. Cates issued his decision March 12, 1999.

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American Tissue Corp. (29-CA-20226; 336 NLRB No. 36) Brooklyn, NY Sept. 28, 2001. Affirming the administrative law judge's supplemental decision, the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging 26 employees, including Holman Flores, Victor Fuentes, Julio Ceasar Rivas, and Marcos Rivas; and violated Section 8(a)(1) by threatening employees with discharge if they supported Service Employees Local 707 or engaged in other protected concerted activities, denying employees the opportunity to work overtime, issuing written warnings to employees, and reassigning an employee to a less desirable job. By order dated June 26, 2000, the Board remanded to the judge to clarify whether the four above-named individuals were unlawfully discharged and should be reinstated and made whole as well as the 22 discriminatees named in the judge's Order. [HTML] [PDF]

In its exceptions to the judge's supplemental decision, the Respondent contended that Victor Fuentes was not alleged as a discriminatee in the complaint and that there is no evidence to support the judge's finding that he was discharged for striking along with the alleged discriminatees. Members Liebman and Truesdale noted although the complaint specifically named 21 discriminatees who allegedly engaged in a strike and were discharged on July 30, 1996, it also alleged that "approximately five other employees whose names are presently unknown" were included in that group; and the General Counsel submitted into the record a copy of Fuentes' timecard indicating that he punched out during the same time that the other 25 discriminatees' timecards were punched out. Based on this evidence and credited testimony, the judge found that Fuentes was among the employees who joined in leaving the plant to go to the Labor Department and that Fuentes was among those discharged, that the employees were told they would be fired if they left, and when the employees attempted to return to their jobs that day and the following day, they were denied entrance to the facility.

Chairman Hurtgen would not find that the Respondent terminated Fuentes in violation of Section 8(a)(3), noting Fuentes was not listed as a discriminatee in the complaint and the record evidence shows only that his timecard indicates that he left the facility. "Even assuming arguendo that his departure was linked to the concerted activity of the others, there is no showing that he was discharged or, if he was, that the discharge was because of concerted activity," the Chairman said. He also found a "procedural impediment" to finding a violation as to Fuentes and would require the General Counsel to formally move to amend the complaint, explaining: "On the introduction of that record evidence [as to Fuentes], one would think that the General Counsel would have amended the complaint to name Fuentes as a discriminatee, inasmuch as Fuentes was then 'known' to the General Counsel. The General Counsel never did so. Notwithstanding this failure, Respondent was apparently supposed to guess that Fuentes was an alleged discriminatee, and to mount any defense it may have had in this regard." Chairman Hurtgen would not leave this to guesswork.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Service Employees Local 339; complaint alleged of Section 8(a)(1) and (3). Hearing at Brooklyn on various dates between March 31 and Sept. 29, 1997. Adm. Law Judge Jesse Kleiman issued his decision Nov. 12, 1998 and his supplemental decision July 17, 2000.

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Vincent Industrial Plastics, Inc. (25-CA-23311, et al.; 336 NLRB No. 50) Henderson, KY Oct. 1, 2001. On remand from the U.S. Court of Appeals for the D.C. Circuit, the Board examined the particular facts of this case, including a balancing of three considerations, and reaffirmed its original finding that an affirmative bargaining order is the appropriate remedy for the Respondent's refusal to recognize and bargain with Chemical Workers Local 1032. The court had remanded the case to the Board to justify the imposition of an affirmative bargaining order "by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees' § 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act." 209 F.3d 727. [HTML] [PDF]

In its earlier decision, the Board found that the Respondent violated Section 8(a)(1) of the Act by interrogating an employee about union activities, Section 8(a)(3) by issuing written warnings to and discharging employees because of their union activities, and Section 8(a)(5) by making several unilateral changes in terms and conditions of employment during contract negotiations and by withdrawing recognition and refusing to recognize and bargain with the Union. The Board ordered, among other things, that Respondent bargain on request with the Union. 328 NLRB 300 (1999). Subsequently, the Respondent filed a petition for review and the Board cross-petitioned for enforcement. On April 14, 2000, the court enforced the Board's remedial order, except for the affirmative bargaining order.

(Members Liebman, Truesdale, and Walsh participated.)

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Southern Labor Services, Inc./Florida Transportation Services, Inc., Joint Employers (12-RC-8602; 336 NLRB No. 53) Ft. Lauderdale, FL Oct. 1, 2001. Affirming the hearing officer's recommendation, the Board sustained the Petitioner's Objection 2A, which alleged that, at a March 8, 2001 meeting attended by nearly all employees, John Gorman Jr., the president of the Joint Employers' Port Canaveral operations, threatened loss of contracts and employment if the employees voted for union representation. The Board wrote in agreeing with the hearing officer that Gorman's own testimony established that a threat or implied threat to close down the Joint Employers' operation was communicated to all, or nearly all, bargaining unit employees: [HTML] [PDF]

Here, Gorman stated that the employees were 'playing Russian roulette' and that there were two bullets, one that could result in Disney, their only customer, terminating the business relationship, and the other that could result in the Joint Employers' closing down and relocating elsewhere. Neither of these predictions of possible adverse consequences was supported by any objective facts. . . .[B]oth therefore clearly interfered with the employees' free choice in the election and were objectionable.

The tally of ballots for the March 15, 2001 election shows 21 for and 21 against, Longshoremen's Locals 1359 and 1922, with 4 challenged ballots. In the absence of exceptions, the Board adopted pro forma the hearing officer's recommendations that Petitioner's Objections 1, 2B, 3, and 4 be overruled, that Objection 5 be withdrawn, and that the challenges to the 4 ballots be overruled. It remanded the proceeding to the Regional Director to open and count the ballots of Chuck Malone, Thomas Baron, Clinton Hodge Jr., and Calvin Barlett and to issue a revised tally of ballots. If the Petitioner receives a majority of the valid votes cast, the Regional Director will issue a certification of representative. If not, the election will be set aside and a second election held.

(Members Liebman, Truesdale, and Walsh participated.)

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Robert F. Kennedy Medical Center (31-RC-7915; 336 NLRB No. 63) Hawthorne, CA Oct. 1, 2001. Chairman Hurtgen and Member Truesdale, agreeing with the hearing officer, overruled Petitioner's Objection 2 alleging that the election held October 12, 2000 should be set aside because the doors to the polling place were locked during the third voting period. The majority certified the results of the election (50 for and 53 against, Robert F. Kennedy Nurses Association, with 7 sustained challenged ballots) and that the Union is not the exclusive representative of the bargaining unit employees. Member Liebman dissented. [HTML] [PDF]

The election was conducted in a room located within the Employer's cafeteria, which has two entrances-a set of double doors proceeding from a hallway and a single door proceeding directly from the Employer's main lobby area. The signs directing voters to the polling place were posted by the double door entrance. Although the double doors were open when the third session began, the doors were subsequently locked. One of the Board agents made the discovery while checking the election signs posted earlier and requested hospital security to unlock the doors. The Board agent estimated that the double doors were locked for about 10-15 minutes.

The majority stated, in noting that the polling place was always accessible through the single door entrance off the main lobby, an entrance that was regularly used by employees: "That this entrance was not posted as an entrance to the polling place during the entire time the double doors were locked does not change the fact that this was a well-known and easily accessible entrance." The majority found, contrary to dissenting Member Liebman, that neither Whatcom Security Agency, Inc., 258 NLRB 985 (1981), nor Wolverine Disptach, Inc., 321 NLRB 796, 797 (1996), where each election was set aside because the polling place was inaccessible for a certain period of time during the polling period, requires a different result.

Member Liebman would find that a new election is necessary "to safeguard the integrity of the election process" because a determinative number of employees were potentially disenfranchised as a result of the obstructed access. She noted that 10 of the 115 voters on the eligibility list have not been accounted for and may have been disenfranchised by the absence of a posted, unlocked entrance to the polls during the final session. "These 10 eligible voters could have determined the outcome of the election, which the Petitioner lost by three votes," Member Liebman said. Applying the objective standard of Wolverine Dispatch, she found that the evidence presented to the hearing officer required that the election be set aside.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

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Painters District Council 9 and Local 18 (Creative Finishes Ltd.) (2-CB-17886, 17887; 336 NLRB No. 46) New York, NY Oct. 1, 2001. The Board held, in agreement with the administrative law judge, that the Respondents violated Section 8(b)(2) and (1)(A) of the Act by causing the Employer to terminate the employment of Bruce Reich, a former union financial secretary of Local 18 and business representative of the Council. [HTML] [PDF]

Following Reich's resignation as financial secretary, an audit of the local union's financial records revealed a total of $26,974 in unaccounted dues payments. The Local found Reich guilty of failing to report missing funds and to turn over all monies collected. It decided to expel him, which was revocable if Reich made restitution of the $26,974 and paid a $5000 fine. Reich did not pay either amount, but he tendered union dues. Local 18 refused to accept Reich's tender of dues and dropped him from its membership roll. On learning that Creative employed Reich, Local 18 filed a grievance alleging the Employer was violating the union-security clause by employing "one nonunion man." Creative subsequently terminated Reich's employment, informing him that owner "Hillary Klein was informed by the union that you are no longer a union member in good standing and therefore we could not employ you anymore."

The Board found, as did the judge, that Philadelphia Typographical Union 2 (Philadelphia Inquirer), 189 NLRB 829 (1971), relied on by the Respondent in its exceptions, is distinguishable, explaining:

In Philadelphia Inquirer, the union removed a former treasurer from the seniority list and caused his layoff specifically because he had been indicted and convicted of embezzling union funds. The union did not act under color of a union-security clause. Here, the Respondents refused to accept Bruce Reich's dues payments until he made restitution and paid a union-imposed fine, and at the same time filed a grievance with the employer under the union-security clause for employment of a 'nonunion man.' Further, unlike Philadelphia Inquirer, there is no evidence in the record that Reich has been indicted or convicted of misappropriation of union funds.

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Bruce Reich, an individual; complaint alleged violation of Section 8(b)(2) and (1)(A). Hearing at New York on Feb. 6, 2001. Adm. Law Judge D. Barry Morris issued his decision May 11, 2001.

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More Truck Lines, Inc. (31-CA-23883, 31-RC-7554; 336 NLRB No. 69) Corona, Irvine, and Westminster, CA Oct. 1, 2001. The Board agreed with the administrative law judge that the Respondent's threat to "freeze" employees' wage levels and deny them their annual increases if the Teamsters were certified violated Section 8(a)(1) of the Act, and his finding that the Respondent's objectionable conduct warranted setting aside the May 20, 1999 runoff election. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Teamsters Local 952; complaint alleged violation of Section 8(a)(1). Hearing at Los Angeles on March 1, 2000. Adm. Law Judge Frederick C. Herzog issued his decision June 19, 2000.

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Suffield Academy (34-CA-7798, et al.; 336 NLRB No. 65) Suffield, CT Sept. 30, 2001. The Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing its tentative agreement to provide health coverage through the Teamsters' A-Plus plan after signing a tentative agreement to provide that insurance. In adopting this finding, the majority of Members Liebman and Truesdale adhered to Driftwood Convalescent Hospital, 312 NLRB 247, 252 (1993), enfd. sub nom. NLRB v. Valley West Health Care, 67 F.3d 307 (9th Cir. 1995). In a concurring opinion, Chairman Hurtgen maintained "the Driftwood standard of 'good cause' imposes a burden upon an employer that is not permitted by the Act." He said "the controlling question is not whether the employer acted in good faith in view of all the circumstances, but whether it had good cause to withdraw from a tentative agreement." [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Teamsters Local 559; complaint alleged violation of Section 8(a)(1) and (5) of the Act. Hearing at Hartford, March 4 and 5, 1998. Adm. Law Judge Wallace H. Nations issued his decision July 22, 1998.

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Sun Tech Group, Inc., d/b/a St. Thomas Gas (24-CA-8421, 8495, 24-RC-8055; 336 NLRB No. 55) St. Thomas, U.S. Virgin Islands Oct. 1, 2001. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Chesterfield, Harrigan and Plaskett on the basis of protected union activity. It directed the Regional Director to count their ballots cast in the election held in Case 24-RC-8055 on September 9, 1999 and issue a revised tally of ballots and the appropriate certification. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Steelworkers; complaint alleged violation of Section 8(a)(3) and (1) of the Act. Hearing at St. Thomas, U.S. Virgin Islands, March 21, 2000. Adm. Law Judge Earl E. Shamwell, Jr. issued his decision Sept. 7, 2000.

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Tawas Industries, Inc. (7-CA-39862; 336 NLRB No. 24) Tawas City, MI Sept. 28, 2001. Contrary to the administrative law judge, the Board majority of Members Liebman and Walsh found that the Respondent violated Section 8(a)(5) of the Act by refusing to recognize Tawas Independent Workers Association (TIWA) as an affiliate of the United Auto Workers (UAW) and by refusing to allow a UAW representative to attend a grievance meeting at the grievant's request. The majority further found, also contrary to the judge, that the Respondent violated Section 8(a)(1) by predicting that other employers would not give their business to the Respondent if the employees voted to affiliate TIWA with the UAW and by posting a notice encouraging employees to report the protected conduct of other employees to management. [HTML] [PDF]

The majority stated:

Because TIWA's affiliation was valid and the later disaffiliation effort was ineffective, the Respondent's refusal to recognize TIWA as an affiliate of the UAW was unlawful. To the extent that the Respondent's action amounted to a withdrawal of recognition during the term of the contract, it was also unlawful. TIWA as a UAW affiliate had succeeded to the rights of TIWA as an independent union. The Respondent was therefore required to recognize affiliated TIWA as the employees' bargaining representative. In addition, the collective-bargaining agreement to which TIWA was a party remained in effect.

Dissenting on this issue, while concurring on others where the majority affirmed the judge, Chairman Hurtgen agreed with the judge's findings that affiliation with UAW had been accomplished with adequate due process safeguards and that there was substantial continuity between the pre-and postaffiliation union. He further agreed with the judge's finding that a majority of the Respondent's employees thereafter decided that they did not want TIWA to be affiliated with UAW and that they so informed the Respondent before UAW had committed any time or resources to representing the employees. The judge therefore found that the Respondent had not violated Section 8(a)(5) and (1) of the Act by refusing to recognize the affiliation with UAW. "The judge noted that it is the fundamental right of employees to select their representative, and the employees here made it clear that they did not want the affiliation with the UAW," Chairman Hurtgen said.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by the UAW; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Tawas City, January 28 and 29, 1998. Adm. Law Judge Martin J. Linsky issued his decision June 2, 1998.

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S. Bent & Brothers and Samuel Bent LLC (1-CA-37851, et al.; 336 NLRB No. 72) Gardner, MA Oct. 1, 2001. The Board reversed the administrative law judge's finding that Respondent Samuel Bent could not be held liable as a successor under Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), for unremedied unfair labor practices committed by Respondent S. Bent and Brothers (Bent), because it did not know at the time it purchased Bent's assets that unfair labor practice charges had been filed by the Union. It stated, "the interests of the public and the victimized employees in this case are best served by requiring Samuel Bent to remedy the unfair labor practices of its predecessor, Bent." [HTML] [PDF]

The Board agreed with the judge's finding that Samuel Bent was a Burns successor to Bent and that Samuel Bent did not have sufficient grounds to support a good-faith doubt that the Union retained the support of a majority of unit employees after the transition in business operations. The judge concluded that Samuel Bent violated Section 8(a)(5) and (1) of the Act when it failed and refused to recognize and bargain with the Union and implemented unilateral changes in terms and conditions of employment.

In finding that Samuel Bent is a successor under Golden State, jointly and severally liable with Bent for remedying Bent's unlawful termination of the employee benefit plans, the Board stated:

[W]hile a successor employer is not required to aggressively investigate its predecessor in order to meet the reasonable diligence standard, it cannot with impunity ignore its predecessor's noncompliance with a collective-bargaining agreement, as Samuel Bent in this case did, and then rely on its ignorance to argue that it was not on notice of the predecessor's unfair labor practices. Here, Samuel Bent was on notice of the existence of the collective-bargaining agreement, of its provisions for medical and dental plans, of the fact that Bent had also been providing employees with a vision plan, and of Bent's termination of all three plans. Reasonable diligence required Samuel Bent to inquire as to whether Bent had bargained with the Union before terminating these plans. Therefore, we find that Samuel Bent knew, or reasonably should have known, that Bent had terminated the unit employees' medical, dental, and vision plans in violation of Section 8(a)(5) and (1) of the Act. See South Harlan Coal, Inc., 844 F.2d 380, 386 (6th Cir. 1988) (evidence supported the finding that successor 'had knowledge, or reasonably should have known' of predecessor's unfair labor practices; successor was therefore liable under Golden State).

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Electronic Workers (IUE) Local 154; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston, December 4-5, 2000. Adm. Law Judge Bruce D. Rosenstein issued his decision March 2, 2001.

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Tree of Life, Inc. d/b/a Gourmet Award Foods, Northeast (3-CA-21569; 336 NLRB No. 77) Albany, NY Oct. 1, 2001. In a prior decision (332 NLRB No. 24 (2000)), the Board remanded to the administrative law judge for further consideration, in light of M.B. Sturgis, 331 NLRB No. 173 (2000), his finding that the Respondent did not violate Section 8(a)(5) and (1) of the Act when it failed to apply the provisions of its collective-bargaining agreement to temporary employees supplied by Accustaff and other referral agencies and performing unit work at the Respondent's facility. In this supplemental decision, Members Liebman and Truesdale, with Chairman Hurtgen dissenting, affirmed the judge's supplemental decision finding that the Respondent's failure to apply the provisions of its collective-bargaining agreement to those employees violated Section 8(a)(5) and (1). [HTML] [PDF]

The judge found that the employees referred by the temporary agencies are jointly employed by the Respondent and their respective supplier employers; that the supplier employers recruit and hire the temporary employees, determine their hourly wages, issue their paychecks, pay their workers' compensation, and make other payroll deductions; and that the Respondent assigns work to the employees, provides day-to-day control through its own supervisors, and determines the employees' hours and work schedules, including overtime. He found the jointly employed employees perform the same work as their solely employed counterparts, working side by side under the same provisions, at the same facility, and under common working conditions. And, that the temporary employees share a community of interest with the Respondent's other warehouse employees.

The majority disagreed with the current General Counsel's assertion that, contrary to the former General Counsel's endorsement of the judge's community of interest standard, this case should be considered under an accretion analysis and the jointly employed employees should be accreted into the bargaining unit. Instead, it found the circumstances here distinguishable from cases involving employees hired into newly created classifications not plainly included in or excluded from the established unit, explaining:

In such cases, disputes concerning the unit status of employees in the new classifications are resolved through unit clarification proceedings applying an accretion analysis. Here, by contrast, the unit definition is plain and includes the classification of warehousemen to which the temporary employees are assigned. Although the Respondent may not have contemplated obtaining its warehousemen from suppliers such as those involved in this proceeding, the unit definition provides no basis for excluding those employees from the established unit. . . .

Moreover, we held in M.B. Sturgis that units combining solely and jointly employed employees are employer units under Section 9(b) of the statute, and that the unit is not rendered inappropriate because some of the employees are jointly employed. Thus, in the circumstances of this case, we conclude that the warehousemen employed by the Respondent through the supplier employers are included in the established bargaining unit described in the parties' agreement.

The majority then considered whether the Respondent was obligated to apply the agreement's terms to the supplied temporary employees, as the Union demanded (a question that was not directly answered by M.B. Sturgis, a representation proceeding involving an initial unit determination). It required the Respondent to apply the agreement's provisions to the employees only as to the working conditions the Respondent controls. In a separate concurring opinion, Member Liebman said she would adopt the judge's conclusion that the Respondent was obligated to apply all of the agreement's terms.

Chairman Hurtgen, in dissent, said his colleagues "leap five stages ahead" of the M.B. Sturgis proposition that the Act does not prohibit joining together, in one unit, the employees of a user and the employees jointly employed by a user and supplier. He wrote: "(1) They hold that the unit employees of the two groups are an appropriate unit, notwithstanding significant differences in terms and conditions of employment; (2) They hold that the temporary employees are to be placed into the user employer unit, without their consent; (3) They ignore contract language in the user's collective-bargaining agreement; (4) They subject the temporary employees to portions of the user's collective-bargaining agreement, and thus modify the contract without the consent of the user; and (5) They determine the unit placement of employees without notice to, or participation of, the suppliers."

Chairman Hurtgen did not pass on the issue of whether the regular and temporary employees share a community of interests. Even if they do, it is not an "overwhelming" community of interests, the Chairman observed. While he agreed with the General Counsel that the accretion test is the appropriate one to be applied, he disagreed with the General Counsel's further contention that, applying the accretion analysis, the temporary employees meet the overwhelming community-of-interest test.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Adm. Law Judge Bruce D. Rosenstein issued his supplemental decision December 1, 2000.

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Brandt Construction Co. (33-CA-12420, et al.; 336 NLRB No. 58) Milan, IL Oct. 1, 2001. Affirming the administrative law judge, Chairman Hurtgen and Member Truesdale held that the Respondent did not unlawfully refuse to hire or refuse to consider for hire named union-affiliated applicants, finding that the judge's analysis is consistent with the framework of FES, 331 NLRB No. 20 (2000), to establish a discriminatory refusal to hire. The Respondent was hiring during all material times and there is no contention that the union-affiliated applicants lacked experience or training relevant to those positions. The Respondent did not except to the judge's finding that it violated Section 8(a)(1) of the Act by changing its hiring practices to restrict the receipt of employment applications from prounion applicants. The majority agreed with the judge that this unfair labor practice finding demonstrated the Respondent's antiunion animus. It also agreed the Respondent showed it would not have hired the prounion applicants even in the absence of their union activity or affiliation because they did not meet any of the applicant-priority categories in its established hiring policy. [HTML] [PDF]

Member Liebman, concurring in part and dissenting in part, would find that the Respondent unlawfully refused to consider for employment those employees who were precluded from applying on April 21, 1997, because they did not have photo identification.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Operating Engineers Local 150; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Rock Island, Nov. 30-Dec. 4, 1998 and Aug. 23-27, 1999. Adm. Law Judge Bruce D. Rosenstein issued his decision Jan. 12, 2000.

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McDonald Partners, Inc. d/b/a Rodgers & McDonald Graphics (21-CA-32908; 336 NLRB No. 74) Carson, CA Oct. 1, 2001. Members Liebman and Truesdale agreed with the administrative law judge that the evidence on which the Respondent relied is insufficient to establish that it had a good-faith reasonable uncertainty of the Union's continuing majority status at the time it withdrew recognition, that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from CWA Local 14904, and that an affirmative bargaining order is an appropriate remedy for the Respondent's unlawful withdrawal of recognition. [HTML] [PDF]

The majority adhered to the view, reaffirmed by the Board in Caterair International, 322 NLRB 64 (1996), that an affirmative bargaining order is the "traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees." Although it disagreed with the D.C. Circuit's view that an affirmative bargaining order must be justified in each case by a reasoned analysis that includes an explicit balancing of three considerations, it found that a balancing of the factors warranted an affirmative bargaining order: (1) the employees' Section 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.

Chairman Hurtgen, dissenting in part, agreed with the finding of the violation only because the evidence of employee disaffection is not close in time to the withdrawal of recognition, as required by precedent, and instead predated the withdrawal by a considerable period. He disagreed that an affirmative bargaining order is warranted after balancing the D.C. Circuit's three considerations and would restore recognition and enter a standard cease-and-desist order. Among other issues, the Chairman said he "parted company" with his colleagues and the judge in their discounting the fact that the Union had no dues-paying members. He also noted that while he has joined his colleagues in finding affirmative bargaining orders warranted in cases involving an unlawful withdrawal of recognition and other unlawful conduct, this case involved only a withdrawal of recognition.

Respondent and CWA Local 14917, the Union's predecessor, were parties to a series of collective-bargaining agreements, the most recent of which was effective from June 1, 1995 through May 31, 1996. The merger between the Union and Local 14917 was effective January 1, 1997. Following expiration of the 1995-1998 contract, the Union requested that Respondent bargain with it for a new contract. The parties had one bargaining session. Thereafter, the Respondent refused to continue bargaining and, on August 5, 1998, withdrew recognition from the Union based on: the lack of certification of Local 14917; the mechanics of the merger vote between the Union and Local 14917; one former union steward's expressed dissatisfaction with union representation; the union's inactivity (failure to process grievances); and the failure of employees to join the Union or execute dues checkoff authorizations.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by CWA Local 14904; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles on June 29, 1999. Adm. Law Judge Mary Miller Cracraft issued her decision Sept. 17, 1999.

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Freund Baking Co. (32-RC-4221; 336 NLRB No. 75) Hayward, CA Oct. 1, 2001. Agreeing with the hearing officer, Members Truesdale and Walsh sustained the Petitioner's Objection 1 and set aside the second election held March 9, 2000 (Bakery Workers Local 119 lost 30 to 3), finding objectionable the Employer's employee handbook, which included the "Security: Confidential Information" section stating: [HTML] [PDF]

Proprietary information includes all information obtained by the employees during the course of their work. This Manual, for example, contains proprietary information . . . . You may not disclose or use proprietary or confidential information except as your job requires. Anyone who violates this guideline will be subject to discipline and possible legal recourse.

The majority found employees could reasonably construe the quoted section as prohibiting them from discussing their wages and working conditions with a union and others outside of the company and, contrary to the hearing officer's conclusion, with other employees as well. As for the substantial margin of the Union's defeat, the majority noted the objectionable conduct affected all of the employees in the unit because the Employer required each employee to receive and review a handbook. "In these circumstances, we find that the Employer's objectionable conduct may have directly accounted for the Petitioner's margin of defeat," the majority wrote. It observed that whether an election should be set aside turns upon an analysis of the character and circumstances of the alleged misconduct, not on the election results

Chairman Hurtgen, dissenting, would certify the results of the election. He agreed that the "Security: Confidential Information" provision is unlawful on its face, but he did not find the maintenance of the rule, without more, warranted setting the election. See his dissent in Diamond Walnut Growers, 326 NLRB 28, 32 (1998), explaining he would not apply a per se rule that any unfair labor practice committed during the critical period requires a rerun election and would evaluate each case on its own facts. In this case, Chairman Hurtgen noted maintenance of the rule is the only unlawful conduct. The rule antedated the Petitioner's organizing campaign, and thus, was not discriminatorily motivated. There is no evidence the rule was used to punish protected activities or the rule deterred employees from discussing, either with the Petitioner's representatives or among themselves, employment-related matters. The Chairman also noted the very lopsided margin of the Petitioner's defeat, saying "I cannot accept my colleagues' proposition that 'the Employer's objectionable conduct may have directly accounted for' that electoral result."

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

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Williamette Industries, Inc. (26-RC-8128; 336 NLRB No. 59) Nashville, TN Oct. 1, 2001. The Board reversed the hearing officer's conclusion that leadmen employees Adams and Moore are statutory supervisors. It found insufficient evidence to show that Adams and Moore exercise supervisory authority in evaluating permanent employees or in disciplining employees. In a footnote, Chairman Hurtgen noted that "the evidence fails to establish that the evaluations prepared by Moore or Adams directly affect or effectively recommend changes in the employment status of the rated employees." [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

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Goad Co. (14-CA-25782(E), 25793(E); 336 NLRB No. 49) Ellisville, MO Oct. 1, 2001. In a supplemental decision, the Board affirmed the administrative law judge's denial of the Respondent's application for award of fees and expenses under the Equal Access to Justice Act. In the underlying case, the Board dismissed a complaint alleging that the Respondent violated the Act by failing and refusing to bargain with Plumbers Local 420 unless Daniel P. Murphy ceased to act as the Union's agent. (333 NLRB No. 82 (2001)). [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Adm. Law Judge George Carson II issued his supplemental decision June 29, 2001.

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Quality House of Graphics, Inc. (29-CA-21820, et al.; 336 NLRB No. 40) Long Island, NY Sept. 28, 2001. Affirming the administrative law judge, the Board majority of Members Truesdale and Walsh held that the Respondent was obligated to continue check-off and remittance of employee contributions to the Union's Inter-Local Pension Fund upon the expiration of its collective-bargaining agreement. Dissenting in part, Chairman Hurtgen would find the Respondent's obligation ceased at contract expiration. The Board concluded there was not a good-faith impasse prior to the Respondent's unilateral discontinuation of check-off. [HTML] [PDF]

In its exceptions, the Respondent contended the judge erred in failing to determine that its check-off and remittance of employee contributions to the Inter-Local Pension Fund violated Section 302 of the Labor Management Reporting Act (LMRA). Specifically, the Respondent argued that its remittance of employee contributions to the fund violated Section 302 because the fund fails to satisfy the joint administrative, arbitration, and other protective provisions of Section 302(c)(5)(B). Therefore, the Respondent said the Board cannot order it to remit employee contributions to the fund.

The majority, however, stated that it was not necessary to determine whether the Respondent had violated Section 302 because "even if it did, we would still find that the Respondent's unilateral discontinuation of the check-off violated Section 8(a)(5) of the Act." Even if the Respondent was facing an exigency of the second type identified in RBE Electronics, 320 NLRB 80 (1995), that may alter an employer's bargaining obligation, the majority found the Respondent violated Section 8(a)(5) by discontinuing the check-off because it failed to provide the Union with the required notice and opportunity to bargain.

Chairman Hurtgen, concluding the Respondent's obligation to deduct payments to the Union's pension fund expired with the contract, stated:

My colleagues argue that the employer has made these payments in the past and that there was no compelling reason to unilaterally discontinue the payments. However, an unlawful subject is not a mandatory subject. And, past practice (and even contractual obligation) cannot convert a non-mandatory subject into a mandatory one. Thus, Respondent's discontinuance of the past practice was not a violation of Section 8(a)(5).

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charges filed by Graphic Communications Local One-1; complaint alleged violation of Section 8(a)(1) and 5). Hearing at Brooklyn, Nov. 16 - 18, 1998. Adm. Law Judge Jesse Kleiman issued his decision July 22, 1999.

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St. Francis Healthcare Centre (8-CA-29739; 336 NLRB No. 47) Green Springs, OH. Oct. 1, 2001. In a supplemental decision, the Board affirmed the administrative law judge's conclusion that the preelection circulation of a letter purporting to be from former employee Shirley Biddle involved objectionable misrepresentation under the standard set forth in Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343 (6th Cir. 1984). Accordingly, the Board directed that a third election be held. The letter challenged the Respondent's statements that its management officials had not received wage increases within the year before the second election on March 20-21, 1997 (the first election was held five months before). [HTML] [PDF]

On May 19, 2000, the U.S. Court of Appeals for the Sixth Circuit denied enforcement of the Board's previous order in this case, 325 NLRB 905 (1998). The Board had found a Section 8(a)(5) violation by the Respondent. The Union was certified on April 24, 1997, and the Board's bargaining order issued June 12, 1998. The court considered the Respondent's objection to the second representation election, which had been rejected without a hearing, and remanded the proceeding to the Board for an evidentiary hearing on the objection based on the letter.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Health Care and Social Services District 1199, SEIU; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Fremont, on March 1, 2001. Adm. Law Judge John T. Clark issued his supplemental decision May 3, 2001 and his second supplemental decision June 29, 2001.

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Grosvenor Orlando Associates, Ltd. d/b/a The Grosvenor Resort (12-CA-18190, et al.; 336 NLRB No. 57) Orlando, FL Sept. 30, 2001. The Board decided that the Respondent engaged in conduct in violation of Section 8(a)(5), (3), and (1) of the Act, including refusing to bargain in good faith with Hotel Employees & Restaurant Employees Local 55, unilaterally changing bargaining unit employees' working conditions, discharging employees because they engaged in protected strike or picketing activities in support of the Union, and threatening employees that there was no contract with the exclusive representative and that it could unilaterally make changes in wages, hours, and working conditions. [HTML] [PDF]

The Board upheld the administrative law judge's finding that the Respondent engaged in bad-faith bargaining and it found, contrary to the judge, that consistent with the complaint's allegation, the Respondent's conduct constituted evidence of overall bad-faith bargaining rather than individual violations of Section 8(a)(5) of the Act. In this regard, the Board concluded "the Respondent's bad faith in bargaining is shown through its conduct in declaring impasse on a nonmandatory subject, and unilaterally implementing new terms and conditions of employment without bargaining to lawful impasse."

The judge found, with Board approval, that the strike, beginning on September 27, 1996, constituted an unfair labor practice strike. The judge also found that the Respondent violated Section 8(a)(3) and (1) by refusing to reinstate the strikers upon their unconditional offer to return to work on November 15, 1996 or soon thereafter. He concluded that the Respondent unlawfully discharged the strikers through its December 27, 1996 letter to them, stating that it had hired permanent replacements and would only consider them for new employment. The Board agreed with the General Counsel's and the Charging Party's exceptions to the judge's failure to find that the Respondent's previous letter to the strikers dated September 30, 1996, constituted an act of discharge. It wrote:

The employees would reasonably have understood that they were discharged through the September 30 letter. It directed the strikers to return their uniforms, hotel identification and time cards, and any other property of the Respondent and pick up their final paycheck for their final wages that would include any outstanding vacation pay. While some of these actions may be, without more, consistent with how employers would treat strikers, the requirement that they pick up vacation pay would lead reasonable employees to conclude that they had been discharged because, here, they would receive such vacation pay only after discharge.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charges filed by Hotel Employees and Restaurant Employees Local 55; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Orlando, Jan. 5-8, 1998. Adm. Law Judge Pargen Robertson issued his decision May 18, 1998.

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Nortech Waste (20-CA-28057, et al.; 336 NLRB No. 79) Roseville, CA Sept. 28, 2001. The Board majority of Members Truesdale and Walsh adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging 11 undocumented workers on Oct. 1, 1997, after a successful organizing campaign by the Union. The majority rejected the Respondent's contention that its motivation was compliance with the Immigration Reform and Control Act (IRCA). "[W]e agree with the judge that the Respondent used IRCA as a smokescreen to retaliate for and to undermine the Union's election victory," it stated. [HTML] [PDF]

In dissent, Chairman Hurtgen said he would find that no discharge actually took place, and thus no violation occurred. He stated:

The judge found that, on October 1, 1997, the Respondent informed the employees at issue that the INS had been contacted, and that they had 3 days to straighten out their paperwork with the INS. In the meantime, they could not work. No affected employee testified that he had been discharged.

While the Respondent filed objections to the Sept. 24, 1997 election, it subsequently withdrew them, Chairman Hurtgen pointed out. The employees returned to work on Oct. 14, 1997.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charges filed by Operating Engineers Local 3; complaint alleged violation of Section 8(a)(1), (2), (3), (4), and (5) of the Act. Hearing at Sacramento, June 16-19, 1998. Adm. Law Judge James M. Kennedy issued his decision May 14, 1999.

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First Healthcare Corp. d/b/a Healthcare Corp. in the State of CA d/b/a Hillhaven Highland House (31-CA-20973, et al.; 336 NLRB No. 62) Highland, Concord, and Bakersfield, CA Sept. 30, 2001. Members Liebman, Truesdale, and Walsh, with Chairman Hurtgen dissenting, held that: (1) under Section 7 of the Act, offsite employees (in contrast to nonemployee union organizers) have a nonderivative access right, for organizational purposes, to their employer's facilities; (2) that an employer may well have heightened private property-right concerns when offsite (as opposed to onsite) employees seek access to its property to exercise their Section 7 rights; but (3) that, on balance, the Section 7 organizational rights of offsite employees entitle them to access to the outside, nonworking areas of the employer's property, except where justified by business reasons, which may involve considerations not applicable to access by off-duty, onsite employees. [HTML] [PDF]

The majority said the test for determining the right to access for offsite visiting employees differs, at least in practical effect, from the one for off-duty, onsite employees spelled out in Tri-County Medical Center, 222 NLRB 1089 (1976), that, except where justified by business reasons, an employer rule that denies off duty-employees entry to outside nonworking areas of the employer's facility is invalid. In this case, the majority said it was "guided" by the U.S. Court of Appeals for the D.C. Circuit's opinion vacating and remanding the Board's decision in a case presenting the same issue. ITT Industries v. NLRB, 251 F.3d 995 (D.C. Cir. 2001), vacating and remanding 331 NLRB No. 7 (2000). There, the Board followed its prior decisions in Southern California Gas Co., 321 NLRB 551 (1996), and Postal Service, 318 NLRB 466 (1995), applying the rule of Tri-County Medical Center, supra, to prevent an employer from denying access to visiting, offsite employees. Because the court in ITT Industries did not decide whether the employees in that case were entitled to access to their employer's property and remanded to the Board for further explanation of its holding, the majority said that case does not support dissenting Chairman Hurtgen's position. The Board has not yet requested or received additional briefing from the parties in ITT Industries.

Applying the above analysis to this case, the majority found that employees Chavez and Davenport were exercising their Section 7 rights to organize, to strengthen their own Union and ultimately to better their own working conditions when they sought access to the Respondent's Highland facility and its Bakersfield facilities-facilities other then the facility at which they worked. The majority noted the employees entered into the Respondent's parking lot or outside break area against the Respondent's wishes and rule and, thus, to that extent, trespassed on its property. It found however that the Respondent's property interest was not substantial after examining the Respondent's business justifications for its prohibition-the "welfare, peace and tranquility" of its nursing home and residents, the difficulty in determining whether an offsite visitor is in fact one of its own employees given its many facilities and employees, and the Union's dignity campaign.

The majority ruled the Respondent violated Section 8(a)(1) of the Act by maintaining a provision of its solicitation and distribution policy which it enforced to prohibit employees of one of Respondent's facilities from gaining access to the nonworking outside areas at any other facility for the purpose of union organizing and enforcing that provision. Finding that the Respondent maintained an unlawful rule at all its nonunion facilities in California, it ordered the Respondent post cease-and-desist notices at these facilities, rather than at the three facilities directly involved, as recommended by the judge.

Chairman Hurtgen, dissenting, found no violation in the Respondent's denial of access to the employees involved here. He agreed with his colleagues to the extent that they find that the Respondent, at least until July 12, 1995, maintained a rule that unlawfully limited the right of off-duty employees to enter the nonwork area of the facility where they worked to engage in organizational activity. However, he would limit the Respondent's obligation to post a notice to three facilities, as recommended the judge.

The Chairman believes that an employer can ordinarily post its property against intrusion by outsiders, i.e., those who do not work at the facility in question. Thus, the Respondent's employees at one facility do not have a Section 7 right to come onto the property of another facility of the Respondent, for the purpose of organizing employees of the latter facility. Balancing the employees' Section 7 right to organize employees at a different site and the employer's property rights, Chairman Hurtgen found that the balance favors the property right. Although the employees have a Section 7 right to assist employees elsewhere in their organizational drive, it does not follow from Hudgens v. NLRB, 24 U.S. 507 (1976), that they have a Section 7 right to come onto the property of the Respondent at a facility where they do not work. The Chairman said his position "is clearly supported" by D.C. Circuit's opinion in ITT Industries.

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

Charges filed by Service Employees Locals 399 and 22; complaint alleged violation of Section 8(a)(1). Hearing at Los Angeles, June 8-11, 1998. Adm. Law Judge Steven M. Charno issued his decision July 21, 1998.

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Amalgamated Lithographers Local One (Metropolitan Lithographer Assn.) (22-CB-8101; 336 NLRB No. 73) Newark, NJ Oct. 1, 2001. The Board held, contrary to the administrative law judge, that language itself in the bargaining agreements which the Respondent Union had with the members of the Metropolitan Lithographers Association, Inc. (MLA), created an exclusive hiring hall and, thus, found it unnecessary to rely on the parties' practice or consider the consequences of a non-exclusive hiring hall as discussed by the judge. It concluded the judge's findings of specific violations of Section 8(b)(1)(A) and (2) of the Act when the Respondent failed and refused to refer Richard D'Amico to employer-members of the MLA in 22 numbered incidents and in the unnumbered MacNaughton Incident, are, with two exceptions (Incident 49 and 58), supported by the facts and the judge's analyses. [HTML] [PDF]

Member Walsh, dissenting in part, would find that the Respondent was justified in not referring pressman Richard D'Amico to an operator's job at employer MacNaughton Einson Graphics and therefore that it did not violate the Act in the MacNaughton Incident. The majority concluded that referring D'Amico to MacNaughton would not have taken work away from an operator.

In Incident 49, the judge found that requests for help from employer Atwater on two different occasions involved the same job. While the Board found that the two Atwater requests for hire were for the same job, it agreed with the judge's analysis of the incident, as modified, and found that the Respondent violated the Act in Incident 49 by referring James Vacca to the second job ahead of D'Amico. Reversing the judge's finding of a violation in Incident 58, which involved a request for help from employer Barton, the Board noted that the request for help does not specify the kind of press involved, stating: "When, as here, the request for help fails to specify the press involved, the Respondent-Union would be justified in not calling D'Amico because the request could be for a web press, a job D'Amico cannot perform."

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Richard D'Amico, an individual; complaint alleged violation of Section (b)(1)(A) and (2). Hearing at Newark, Oct. 21-22, 1997 and Feb. 2-4 and 10, 1998. Adm. Law Judge Nancy M. Sherman issued her decision Nov. 18, 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., 22-RC-11416; 336 NLRB No. 71) Lincoln Park, NJ Oct. 17, 2001. In this supplemental decision, the Board adopted the administrative law judge's finding that the discharges of Dorothy Baines and David Aldorando were unlawful and that the Respondent failed to demonstrate it would have discharged these employees in the absence of their union activities. The Board set aside the election held April 19, 1998 in Case 22-RC-11416, and severed and remanded the case to the Regional Director for the purpose of conducting a new election when circumstances permitted the free choice of bargaining representative. [HTML] [PDF]

The Board, in the prior proceeding (333 NLRB No. 135), remanded to the judge for further consideration, the issue of whether the Respondent violated the Act when it discharged Aldorando and Baines and whether the election of April 19, 1998 should be set aside because of objectionable conduct.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Adm. Law Judge Raymond P. Green issued his supplemental decision July 3, 2001.

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New Era Cap Co. (3-CA-21227, 21274; 336 NLRB No. 42) Buffalo, NY Sept. 28, 2001. The Board adopted the administrative law judge's finding that the Respondent, by its Buffalo Plant Manager, Vincent Farallo, violated Section 8(a)(1) of the Act by threatening to close or move Respondent's business if employees voted in favor of affiliation with the Communication Workers of America (CWA). It dismissed the complaint allegation that Supervisor Mike Selinski threatened employees with plant closure and informed them it was futile to attempt to affiliate with the CWA, noting that the allegation was not set forth in the General Counsel's amended complaint. [HTML] [PDF]

Chairman Hurtgen and Member Truesdale, contrary to the judge, found that the Respondent did not violate Section 8(a)(1) by reimbursing its employees for their time and expense in voting, while urging employees to vote against affiliation. Citing Heintz Mfg. Co., 103 NLRB 768 (1953), they said "Board law is clear that an employer may provide transportation to and from a polling station, provided that the benefit is offered on a nondiscriminatory basis, and the employees are free to accept or reject the offer." Member Liebman, dissenting in part, would affirm the judge's conclusion that the Respondent unlawfully attempted to influence the vote against affiliation with the CWA, at the same time providing employees with free transportation to the polls and providing employees scheduled to work that day with paid time off to vote.

Members Liebman and Truesdale agreed with the judge that the Respondent violated Section 8(a)(1) and (3) by suspending Valerie Baldwin for her union activities. Dissenting in part, Chairman Hurtgen would dismiss the 8(a)(3) allegation with respect to Baldwin's 3-day suspension. He found that the Respondent had met its burden of rebuttal under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1982).

Respondent's Buffalo, Derby, and Hamburg plants have unionized work forces; the Buffalo and Hamburg employees are a part of the same bargaining unit and are represented by the Buffalo Plant Independent Union; the Derby plant employees are represented by CWA.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Valerie Baldwin, an individual and Communication Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Buffalo, Jan. 25-28, 1999. Adm. Law Judge Richard H. Beddow Jr. issued his decision July 9, 1999.

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Transpersonnel, Inc. (11-CA-17507; 336 NLRB No. 39) Spartanburg, SC Sept. 28, 2001. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) of the Act by soliciting employees to sign statements stating they do not want union representation and interrogating employees about the employees' desires regarding collective-bargaining representation. The Board also agreed with the judge's finding that the Respondent violated Section 8(a)(1) and (5) by withdrawing recognition from the Union on May 9, 1997. The Respondent contended that on May 9, it had valid disavowals of union support from 12 unit employees in a unit consisting of fewer than 24 employees. The Board determined the Respondent, at most, had 9 valid expressions of disaffection from unit employees and failed to establish that as of May 9, it held a good-faith reasonable uncertainty regarding the Union's majority status. [HTML] [PDF]

As set forth in Caterair International, 322 NLRB 64 (1996), the Board held that an affirmative bargaining order is warranted as a remedy for the Respondent's unlawful withdrawal of recognition from the Union. It adhered to the view that an affirmative order is "the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees." The Board also found that an affirmative bargaining order is warranted after balancing three considerations as required by the U.S. Court of Appeals for the D.C Circuit.

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Teamsters Local 28; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Spartanburg Jan. 28 and 29, 1998. Adm. Law Judge Pargen Robertson issued his decision May 27, 1998.

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Equipment Trucking Co., Inc., and Smith Trucking Co., Singer Employer (14-CA-25052 (formerly 33-CA-12592); 336 NLRB No. 20) Winchester, IL Sept. 28, 2001. The Board majority of Members Liebman and Truesdale, contrary to dissenting Chairman Hurtgen, agreed with the administrative law judge that Respondent vice president Darrell Howard's March 23, 1998 comment to employee Larry Northrup was an unlawful implied threat of discharge. Howard's comment, that the Respondent's president would run the Company "any way she wanted, and if [he] didn't like it, find another job" was made in response to Northrup's statement of support for the Union and of concern that the withdrawal of recognition would adversely affect his retirement. In finding a violation of Section 8(a)(1) of the Act, the majority stated: [HTML] [PDF]

The Board has long held that such statements by an employer implicitly threaten discharge because they convey the impression that the employer considers complaining about working conditions and engaging in union activity incompatible with continued employment. See Padro Dodge, 205 NLRB 252 (1973), and Stoody Co., 312 NLRB 1175, 1181 (1993).

In his opinion dissenting in part and concurring in part, Chairman Hurtgen agreed with the judge that Howard's March 23 comments violated Section 8(a)(1) in that "they unlawfully conveyed to employees the futility of Union representation," but would reverse his finding that the incident constituted an 8(a)(1) implied threat of discharge.

Chairman Hurtgen agreed with the judge that the Respondent's unfair labor practices were serious and numerous, and agreed with his colleagues that an affirmative bargaining order was warranted. Beyond the remedial relief of an affirmative bargaining order, he would authorize the Regional Director to appoint, at the Union's request, a mediator for bargaining--chosen from a list of those qualified from an American Arbitration Association panel for the Regional Office area which includes the Respondent.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Teamsters Local 916; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Winchester, Oct. 28, 1998. Adm. Law Judge Lawrence W. Cullen issued his decision Dec. 17, 1998.

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Hardesty Company, Inc., d/b/a Mid-Continent Concrete (26-CA-17571; 336 NLRB No. 18) Van Buren and Fort Smith, AR Sept. 28, 2001. The Board affirmed the administrative law judge's findings that the Respondent engaged in bad-faith bargaining in violation of Section 8(a)(5) of the Act and committed various other violations of Section 8(a)(1) and (5). In reaching the bad-faith bargaining finding, Chairman Hurtgen, concurring in part, would rely principally on statements by Respondent's agents. He stated: [HTML] [PDF]

In these statements, the Respondent vowed to end the bargaining relationship after the certification year had expired, threatened to insure a union loss in a new election by appointing prounion bargaining-unit employees to supervisory positions, told employees that they would have higher wages and new trucks if they reject union representation, and predicted that the Union would accomplish "absolutely zero" in negotiations.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Teamsters Local 373; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Fort Smith, March 19-20, 1997. Adm. Law Judge D. Randall Frye issued his decision Sept. 29, 1998.

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McKenzie Engineering Co. (33-CA-11408; 336 NLRB No. 26) Fort Madison, IA Sept. 28, 2001. In a Supplemental Decision and Order, the Board adopted the administrative law judge's recommended order that the Respondent pay four discharged employees (journeymen union carpenters) $130,516 plus interest (representing backpay accruing from Nov. 1, 1995; one employee died on Oct. 21,1999). The Respondent is further ordered to pay $70,091 to 19 nonunion replacement employees to make them whole for fringe benefits that accrued from Nov. 1, 1995 to April 30, 1997. [HTML] [PDF]

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Hearing at Peoria, IL, Nov. 6-7, 2000. Adm. Law Judge Marion C. Ladwig issued his decision July 20, 2001.

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Nova Plumbing, Inc. (21-CA-32275; 336 NLRB No. 61) Santa Ana, CA Sept. 28, 2001. Reversing the administrative law judge, the Board majority of Members Liebman and Walsh held that the collective-bargaining agreement entered into between the parties unequivocally established that the Union attained the status of majority bargaining representative under Section 9(a). Therefore, it found that the Respondent's withdrawal of recognition from, and refusal to meet with, the Union, as well as the Respondent's cessation of contributions to certain contractually-established funds and use of the Union's referral system violated Section 8(a)(5) and (1) of the Act. In reaching this holding, the majority applied the test set forth in the Board's recent decision in Central Illinois Construction, 335 NLRB No. 59 (2001). [HTML] [PDF]

The majority found that the parties' recognition clause "leaves no reasonable doubt that the parties intended a 9(a) relationship" and "clearly meets the standards set forth by the Board in Central Illinois." Given that the parties entered into a 9(a) relationship, the majority stated:

[A]bsent a showing of good-faith uncertainty regarding majority support for the Union, the Respondent could not withdraw recognition and repudiate the Agreement. Because the evidence is insufficient to support a finding of a good-faith uncertainty concerning the Union's majority status, we find that the Respondent's withdrawal of recognition from, and its refusal to bargain with, the Union, as well as its cessation of contributions to certain contractually-established trusts and its cessation of use of the Union's hiring hall services, violated Section 8(a)(5) and (1) of the Act.

Chairman Hurtgen, in dissent, concluded that the General Counsel has not established a 9(a) relationship. He stated:

In sum, if a union can establish actual majority support, or if it can point to language which provides that it had majority support, it can be the 9(a) representative. The critical issue is whether a majority of the employees chose the union. The issue is not whom the union represents. If the employees did not choose the union, we should not risk foisting a 9(a) union on the employees.... I find that the Union and the Respondent did not have a 9(a) relationship. Thus, it is of no significance whether the Respondent had a good-faith uncertainty as to the Union's majority status.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Plumbers Southern California Pipe Trades District Council No. 16; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles, Dec. 14-17, 1998. Adm. Law Judge Clifford H. Anderson issued his decision May 10, 1999.

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Pan-Osten Company (26-CA-18679; 336 NLRB No. 23) Glasgow, KY Sept. 28, 2001. The Board, reversing the administrative law judge, found that Todd Holmes was not shown to be a statutory supervisor of the Respondent when he engaged in conduct alleged to be a violation of Section 8(a)(1) of the Act during a 1998 union organizing campaign. "We conclude that the General Counsel, who has the burden in this case, has proffered no evidence that Holmes possessed any of the indicia of a supervisor at the time the relevant events took place," the Board held. [HTML] [PDF]

Dissenting in part, Chairman Hurtgen disagreed with Members Liebman and Truesdale that supervisor Mike Ward unlawfully interrogated employee Douglas Springer about a union meeting. He said: "There is no evidence as to the precise question asked by Ward. My colleagues seek to supply only the general testimony, but no specifics."

(Chairman Hurgten and Members Liebman and Truesdale participated.)

Charge filed by Sheet Metal Workers Local 433; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Nashville, TN, Dec. 10-11, 1998. Adm. Law Judge Howard I. Grossman issued his decision March 29, 1999.

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Plumbers Local 91 (Brock & Blevins) (10-CB-7170, 7171; 336 NLRB No. 43) Birmingham, AL Sept. 28, 2001. Applying recent precedent that issued after the administrative law judge's decision on July 2, 1999, the Board reversed his findings that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by improperly deviating from its hiring hall procedures, bypassing Charging Parties Arthur Moorehead and George Henrey on the Respondent's out-of-work list, and failing to refer them for certain job referrals. See Stage Employees Local 720 (AVW Audio Visual), 332 NLRB No. 3 (2000); Plumbers Local 375 (H.C. Price Construction), 330 NLRB No. 55 (1999); Plumbers Local 342 (Contra Costa Electric), 329 NLRB 688 (1999) (Contra Costa I), revd. and remanded sub nom. Jacoby v. NLRB, 233 F.3d 611 (D.C. Cir. 2000), on remand Plumbers Local 342 (Contra Costa Electric), 336 NLRB No. 44 (2001) (Contra Costa II). [HTML] [PDF]

The Board held in Contra Costa I and reaffirmed in Contra Costa II, that mere negligence in the operation of an exclusive hiring hall does not constitute a breach of the duty of fair representation or a violation of Section 8(b)(1)(A) and (2). In the instant case, the Board found that the Respondent did not operate its exclusive hiring hall unlawfully by bypassing Moorehead and Henrey. In the case of Moorehead, a welder, business agent John Eaves cut some corners from the hiring hall's "first in, first out" rule, resulting in Moorehead getting bypassed. In Henrey's case, the Board found Eaves' failure to refer the pipefitter "resulted from the union dispatcher's good-faith but mistaken belief that the employee did not want to work during the period in question."

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Arthur L. Moorehead and George G. Henrey, individuals; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Birmingham, March 1, 1999. Adm. Law Judge Keltner W. Locke issued his decision July 2, 1999.

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E.S. Sutton Realty Co. (2-CA-30365; 336 NLRB No. 33) New York, NY Sept. 28, 2001. The Board majority Chairman and Hurtgen and Member Liebman, reversing the administrative law judge, found that Respondent Sutton unlawfully refused to consider and to hire five employees and that as a successor employer it failed in its obligation to recognize and bargain with the Union, and by changing employees' terms and conditions of employment. Sutton abruptly ended its relationship with janitorial services contractor Crisfield and hired its own cleaning employees upon learning that Crisfield intended to recognize the Union and settle pending unfair labor practice charges. By the time union-represented workers sought jobs, none were left. In finding a violation, the Board stated: [HTML] [PDF]

A clear preponderance of all the relevant evidence demonstrates that Sutton's staffing process was tainted by antiunion animus from beginning to end. The judge did not fully address all of the inconsistencies in the record, relying instead on witnesses whose testimony, contradicted by the documentary evidence, she herself described as inaccurate and incomplete.

Member Walsh dissented and would adopt the judge's dismissal of the complaint. Contrary to Chairman Hurtgen and Member Liebman, he would not reverse the judge's assessment of the credibility of Anderson Curtis, a union member who had worked for many different cleaning contractors at Sutton's building on 291 Broadway in New York City for 31 years. Sutton hired Curtis as a supervisor right after canceling the Crisfield contract. Member Walsh stated:

To borrow from the standard applied in the Second Circuit, I would not reverse a judge's decision to credit a witness unless that witness' testimony was hopelessly incredible or flatly contradicted either by the law of nature or undisputed documentary testimony. Beverly Enterprises v. NLRB, 139 F.3d 135, 142 (1998); Kinney Drugs v. NLRB, 74 F.3d 1419, 1427 (1996). Notwithstanding the failure of Curtis' testimony to match the dates on the employment documents in question, I cannot find that Curtis' testimony, on the key facts on which the judge's decision was based and on which she credited him, failed either one of those tests.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at New York, May 27-28, 1998. Adm. Law Judge Eleanor MacDonald issued her decision Feb. 19, 1999.

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Vico Products Co. (7-CA-40016, 40572(2); 336 NLRB No. 45) Plymouth, MI Sept. 30, 2001. The Board affirmed the administrative law judge's findings that (1) the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing its decision to relocate its caliper pin production from its Plymouth, Michigan, facility to its Louisville, Kentucky, facility and to lay off 33 employees at the Plymouth facility; and (2) the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain with the Union over the effects of that decision. However, the Board disagreed with the judge that the employees' union activities were not a motivating factor in the Respondent's relocation decision. Accordingly, it reversed the judge on this issue and found that the relocation of the caliper pin operation and the layoff of the 33 unit employees were violative of Section 8(a)(3). [HTML] [PDF]

The Board found merit to the cross-exceptions of the General Counsel and Charging Party that the record evidence did not support the judge's conclusion that Schultz made the relocation decision in December 1996, some two months before the Union came on the scene, and that the judge erred in his Wright Line analysis by failing to properly consider whether the relocation decision was motivated by the employees' union activities. "[T]he judge simply accepted as true [company president] Schultz's testimony that he made the decision to relocate the caliper pin operation to Louisville in December 1996," the Board stated.

The Respondent implemented the relocation and layoffs on July 3-4, 1997, less than three months after the Union had won the election and been certified as the bargaining representative of the Respondent's employees. As to the Respondent's knowledge of the employees' union activities, as early as March 1997, Schultz received a document signed by employees that set out employee rights under Section 7 of the Act. "Schultz's testimony that he made the relocation decision in December 1996, which the judge simply assumed to be true, standing alone, cannot suffice as a defense to the 8(a)(3) allegation," the Board asserted.

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by the Auto Workers (UAW): complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Detroit, March 2-6, and May 4-8, 1998. Adm. Law Judge Bruce D. Rosenstein issued his decision Oct. 1, 1998.

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Clark Distribution Systems, Inc. (13-CA-38348-1, -2; 336 NLRB No. 60) Matteson, IL Oct. 1, 2001. The Board affirmed the administrative law judge's findings that the Respondent engaged in various violations of Section 8(a)(1) and (3) of the Act arising in the context of an unsuccessful union organizing campaign. After the Union lost the election on Aug. 13, 1999 (it also lost an election in 1997), the Respondent in November 1999, decided to transfer work from its Matteson, IL facility to its Kansas City, KS facility. Thereafter, the Respondent decided to reduce the Matteson work force by nine employees. In January 2000, it offered a severance package to the first nine employees to accept the offer. Only three employees accepted the severance package. The Respondent then selected for layoff the six employees with the most disciplinary write-ups in 1999. [HTML] [PDF]

The judge found, and the Board agreed, that the Respondent (1) violated Section 8(a)(1) by soliciting employee grievances during the election campaign and promising to remedy those concerns; (2) violated Section 8(a)(1) by conditioning acceptance of the severance package on the requirement that employees not participate in the Board's investigative process; and (3) violated Section 8(a)(3) by devising and executing a discriminatory scheme in order to rid itself of union supporters.

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Patrick Anthony and Jason Lamatsch, individuals; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Chicago, Oct. 23-25, 2000. Adm. Law Judge William G. Kocol issued his decision Dec. 29, 2000.

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Wolfe Electric Co. (17-CA-18957; 336 NLRB No. 48) Lincoln, NE Oct. 1, 2001. The Board, affirming the administrative law judge's supplemental decision, held that the Respondent discriminatorily refused to hire nine journeymen electricians ("salts") on July 8, 1996, based on their Union affiliation. Under the Board's FES standard, the discriminatees are entitled to reinstatement and backpay. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Electrical Workers (IBEW) Local 265; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Lincoln, Jan. 5-7, 1998. Adm. Law Judge Albert A. Metz issued his decision April 15, 1998 and his supplemental decision Sept. 29, 2000.

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Capehorn Industry, Inc. (22-CA-22095; 336 NLRB No. 29) Clifton, NJ Sept. 28, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate various economic strikers on their unconditional offer to return to work. The Board rejected the Respondent's defense that its engagement of a permanent subcontractor to perform certain unit work justified not reinstating the striking workers whose jobs were assumed by the contractor. [HTML] [PDF]

Citing Land Air Delivery, 286 NLRB 1131 (1987), review denied 862 F.2d 354 (D.C. Cir. 1988), cert. denied 493 U.S. 810 (1989), the Board noted that "an employer's use of temporary measures--such as temporary subcontracting or the use of temporary replacements--does not result in the same detrimental loss of striker reinstatement rights as does permanent subcontracting." It added:

Thus, permanent subcontracting cannot be treated as the equivalent of these other measures. We find that an employer must establish a legitimate and substantial business reason for implementing the permanent subcontract during a strike.

Having rejected the Respondent's claim that the replacement workers it hired were permanent, and that the Respondent's execution of a permanent subcontract was supported by any business justification, we find that the Respondent has failed to demonstrate a legitimate and substantial justification for its failure to reinstate all of the former strikers--those who had been temporarily replaced, and those whose jobs have been permanently subcontracted.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by UNITE Local 169; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Newark, July 20 - 21 and Aug. 27, 1998. Adm. Law Judge Raymond P. Green issued his decision Oct. 30, 1998.

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Laborers Local 860 (Anthony Allega Cement Contractor, Inc.) (8-CD-480; 336 NLRB No. 28) Valley View, OH Sept. 28, 2001. In this proceeding under Section 10(k) of the Act, the Board concluded that employees represented by Laborers Local 860, rather than IBEW Local 38, are entitled to perform duct bank and manhole placement and/or construction on the Runway 5L-23R construction project at Cleveland Hopkins International Airport. One of the factors cited by the Board is that the Employer has consistently assigned the disputed work to employees represented by the Laborers in prior projects, and "there is an unbroken area practice of Laborers performing the disputed work at the airport in the past." [HTML] [PDF]

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

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Drew Division of Ashland Chemical Co., a division of Ashland Oil, Inc. (22-CA-21748; 336 NLRB No. 38) Kearny, NJ Sept. 28, 2001. The Board affirmed the administrative law judge's conclusion that the Respondent violated Section 8(a)(5) and (1) and 8(d) of the Act by locking out its employees within 60 days from the Union's notification of its intent to terminate their contract 8(d)(1) notice. In a footnote, Chairman Hurtgen and Member Truesdale stated they disagreed with the judge's reliance on Carpenters Dist. Council of Denver, 172 NLRB 793 (1968), in which a union was found in violation of Section 8(d)(4) for striking within 60 days of the employer's Section 8(d)(1) notice. They found the analysis of Section 8(d)(3) notice obligations set forth in United Artists Communications, 274 NLRB 75 (1985), a more persuasive authority. [HTML] [PDF]

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

Charges filed by Teamsters Local 97; complaint alleged violation of Section 8(a)(5) and (1) and 8(d). Hearing at Newark on April 6, 1999. Adm. Law Judge Steven Davis issued his decision on Aug. 12, 1999.

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K-Mart Corp. (7-CA-42082, 7-RC-21537; 336 NLRB No. 37) Canton, MI Sept. 28, 2001. The Board, agreeing with the administrative law judge, found that the Respondent had engaged in various Section 8(a)(1) violations during a union organizing campaign, including the Respondent's General Manager Bellarose telling employees to report to management any perceived harassment by Union supporters; Bellarose threatening employees that whether they would be given the opportunity to work at a leased Toys R Us annex in the future depended on the outcome of the election; and a threat during two captive-audience speeches on May 4 and 5, 1999, by Senior Vice President Mixon that it would be futile to elect a union at the Canton, MI facility. [HTML] [PDF]

A majority of Members Liebman and Truesdale found that the Respondent unlawfully posted an announcement of a 50-cent-per-hour wage increase on May 12, 1999. The majority pointed out that the Respondent "seized on and emphasized the wage increase in the 25th-hour preelection meetings as part of the Respondent's final push to discourage union support." Mixon's letter to employees announcing the wage hike "boasted that this increase would add up to over $1000 per year for most employees," it noted.

Dissenting in part, Chairman Hurtgen concluded "the Respondent's decision to increase wages was made in the normal course of business and was not motivated by a desire to influence employees to vote against the Union."

In my view, as it is established that the wage increase itself was lawful and as the Respondent's May 11 announcement of the wage increase by memo was consistent with the Respondent's past practice, the Respondent's mention of the pay increase at its May 12 preelection meetings was clearly lawful. Contrary to my colleagues, the Respondent's mention of the pay increase in the preelection meetings cannot itself be condemned as inconsistent with past practice.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by the Auto Workers (UAW); complaint alleged violation of Section 8(a)(1). Hearing at Detroit, Sept. 20 - 23, 1999. Adm. Law Judge C. Richard Miserendino issued his decision March 28, 2000.

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Exceptional Professional, Inc. d/b/a EPI Construction (17-CA-19272, et al.; 336 NLRB No. 16) Nixa, MO Sept. 28, 2001. The Board remanded to the administrative law judge for further consideration in view of FES, 331 NLRB No. 20 (2000), the complaint allegation that the Respondent unlawfully refused to consider for hire or to hire 10 applicants. It agreed with other findings by the judge, including that the Respondent violated Section 8(a)(1) of the Act by informing its employees that it would be futile to select the Union as their bargaining representative; creating the impression among its employees that their union activities were under surveillance; promulgating a rule that discriminatorily prohibited employees from talking about the Union or any other labor organization while working, interrogating its employees about their union membership, activities, and sympathies; and threatening its employees with layoff if they supported the organizing efforts of the Union. The Board reversed her finding that the Respondent violated Section 8(a)(4) and (1) by establishing a grievance and arbitration procedure restricting the rights of employees to use the processes of the NLRB. Finding the record factually insufficient to support a violation of the Act, it stated: [HTML] [PDF]

The complaint alleged that, about July 29, the Respondent established a grievance and arbitration procedure that restricted its employees' right to use the processes of the NLRB. The violation was alleged to have occurred about July 29, [1997] apparently because that was the date on which the Respondent, through its attorney's letter, informed the Union that the Respondent had a grievance and arbitration procedure. However, as the judge noted, the Respondent's grievance and arbitration procedure has never been used and the Respondent has never distributed the procedural guidelines and forms for it to its employees. Additionally, there is no evidence that the employees have been informed that the Respondent has implemented a grievance and arbitration procedure. Although the Respondent notified the Union of the procedure's existence, the Union was not the Respondent's employees' representative. Moreover, neither the Respondent's letter to the Union nor the attached grievance form indicated that the grievance and arbitration procedure was mandatory.

Chairman Hurtgen dissented in part from his colleagues in the majority, Members Truesdale and Walsh, affirming the judge's finding that Fred Stewart, the Respondent's president, violated the Act by stating to employees on July 30 or 31 that he "was not going to join the Union and it was probably going to cost him some money, but he was not going to join and that's where he stood." He would not find a violation, and stated:

This is no more than an expression of Stewart's opinion that he did not want a union at his place of business, and that he was prepared to shoulder the costs of opposing the Union's campaign. Stewart's expression of opinion was not coercive and did not reasonably convey a threat of reprisal if employees selected the Union. As such, it was protected by Section 8(c). Nor did Stewart express a threat of futility.

In a footnote, the majority responded about this point as follows:

Fred Stewart's statement is unlawful not because it threatened retaliation for supporting the Union. Rather, it is unlawful because it threatened that supporting the Union would be futile. There is no need to find that such a statement carries a warning of retaliation in order to find the statement unlawful. In any event, the Respondent's assurances against reprisal ring hollow in light of the Respondent's contemporaneous unfair labor practices, including its unlawful layoff of several employees because of their union activities.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charges filed by Carpenters District Council of Kansas City and Vicinity Locals 311 and 978; complaint alleged violation of Section 8(a)(1), (3) and (4). Hearing at Springfield, Nov. 18 - 21 and March 24 - 26, 1998. Adm. Law Judge Mary Miller Cracraft issued her decision Aug. 5, 1998.

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Raley's (20-CA-24837, 25166; 336 NLRB No. 30) West Sacramento, CA Sept. 28, 2001. Reversing the administrative law judge, the Board majority of Members Liebman and Truesdale held that section 1.1 (the recognition clause) of the parties' collective bargaining agreement required the Respondent to recognize the Union as the bargaining representative of the unit employees at two stores (Yuba City and Grass Valley) on presentation of majority support. The majority remanded the case to the judge for litigation of the issue of whether the Union had majority support when it demanded recognition at the two stores. [HTML] [PDF]

The judge found that the employer had not waived its right to a Board-conducted election and dismissed the complaint, which alleged the Respondent had violated Section 8(a)(5) and (1) of the Act.

The majority found Kroger Co., 219 NLRB 388 (1975), to be controlling:

The language of section 1.1, the recognition clause, is similar to that of the recognition clause in Kroger in all essential respects. Here, as in Kroger, the Respondent has agreed to recognize the Union as the sole bargaining representative for all of its employees working at its stores within a designated geographical territory, which in this case is the geographical jurisdiction of [UFCW] Local 588.

Contrary to the judge, the majority said "there is no factual basis for distinguishing Kroger from this case on the basis that the two disputed stores here were preexisting." The majority also did not find it significant that the stores in this case were already within the Union's geographical jurisdiction prior to the 1992 - 1995 contract, even though this was not the situation in Kroger.

In dissent Chairman Hurtgen stated:

My colleagues engage in verbal revisionism in their attempt to render nugatory the decisive fact of Kroger II--and the fact which informs Kroger II's analytical framework--i.e., that an employer's contractual waiver of its right to a Board-conducted election applies only to stores that are newly added to the geographical coverage of the contract during the term of the contract in which the employer has agreed to such a waiver. Unable to reconcile the fact that Kroger II applies only to newly added stores, whether termed 'after acquired' or 'additional,' with the fact that the stores at issue here were 'preexisting' stores, my colleagues simply say that this difference 'is a difference without significance.'

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Food & Commercial Workers Local 588; complaint alleged violation of Section 8(a)(5) and (1). Hearing at San Francisco, Sacramento, Yuba City, and Maryville on various dates between April 21 - July 6, 1998. Adm. Law Judge Jay R. Pollack issued his decision Oct. 22, 1998.

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Beverly Health and Rehabilitation Services, Inc., et al. (6-CA-28130-1, et al.; 336 NLRB No. 25) Chambersburg, PA Sept. 28, 2001. The Board denied the General Counsel's and the Charging Parties' motions seeking reconsideration of the Board's prior decision reported at 331 NLRB No. 121 (2000). In its earlier decision, the Board found that the November 29, 1996 complaint alleging that the Respondent violated Section 8(a)(1) of the Act by filing and maintaining a defamation lawsuit against the Charging Parties and District 1199P President Thomas DeBruin should be held in abeyance pending the outcome of the lawsuit. Additionally, it dismissed the allegation in the December 23, 1996 amended complaint to the extent that it alleged the Respondent violated the Act by failing to stay its lawsuit after the General Counsel issued his November 29, 1996 complaint in this case. [HTML] [PDF]

Relying on Sears Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978), and Loehmann's Plaza, 305 NLRB 663, 670 (1991), the General Counsel and the Charging Parties contended that the Board erred in finding that issuance of the General Counsel's complaint did not preempt the Respondent's defamation lawsuit. The Board, contrary to the General Counsel and Charging Parties stated:

we do not believe that Sears and Loehmann's Plaza compel the conclusion that, once a complaint is presented to the Board involving a state court defamation suit, the suit should be preempted. The Sears court clearly drew a distinction between preemption principles in trepass cases arising out of union picketing or handbilling and defamation cases.

In accordance with the framework set out in Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983), the Board saw no reason to reconsider the instant case. It reiterated Justice Brennan's observation in his concurring opinion in Bill Johnson's:

[A]s the Court makes clear . . . the Board's ability to enjoin prosecution of a state suit is not the measure of its ability to determine that such prosecution constitutes an unfair labor practice or of its ability to provide other remedies to vindicate federal labor policy. [Id. t 753.]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Bricklayers International (W.R. Weis Co., Inc.) (13-CD-579; 336 NLRB No. 51) Chicago, IL Oct. 1, 2001. The Board determined that W.R. Weis' employees represented by the Bricklayers are entitled to perform the unloading, handling, stockpiling, hoisting and installation of relief angles to support stone, and the unloading, handling, stockpiling, hoisting, and installation of multipurpose supports on the jobsite at 520 North Michigan Avenue, Chicago, Illinois. In making the award, it relied on the factors of collective-bargaining agreements, employer preference and past practice, and efficiency and economy of operations. [HTML] [PDF]

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

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Meaden Screw Products, Co. (13-CA-34483(E); 336 NLRB No. 22) Burr Ridge, IL Sept. 28, 2001. The Board reversed the recommended Order of the administrative law judge and denied the Respondent's application for attorney's fees and expenses under the Equal Access to Justice Act (EAJA). It also reversed the judge's finding of no substantial justification for either the General Counsel's predecisional settlement posture in the underlying case or the General Counsel's filing of exceptions to the judge's 1997 decision. [HTML] [PDF]

The judge, in his supplemental decision, ruled that the General Counsel was precluded from "relitigat[ing] the issue of substantial justification in an answer where the General Counsel ha[d] already chosen to litigate that issue by filing a motion to dismiss." He found that the Applicant was entitled to an EAJA award because the General Counsel was not substantially justified in filing exceptions to the 1997 judge's decision because they challenged only his credibility resolutions. Contrary to the judge, the Board found that "[e]ven accepting the judge's credibility resolutions, the General Counsel reasonably argued that the judge should have drawn other inferences from the record that would have supported the General Counsel's position." Europlast Ltd., 311 NLRB 1089 (1993), affd. 33 F.3d 16 (7th Cir. 1994).

In the prior decision, 325 NLRB 762 (1998), the Board adopted the judge's findings and dismissed the complaint in its entirety. The Respondent filed its EAJA application and, thereafter, the General Counsel submitted a motion to dismiss the application and an answer, claiming that his prosecution of the unfair labor practice case was substantially justified throughout all phases of the case.

(Members Liebman, Truesdale, and Walsh participated.)

Adm. Law Judge William G. Kocol issued his supplemental decision Nov. 10, 1998.

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Wild Oats Markets, Inc. d/b/a Wild Oats Community Markets (14-CA-24815; 336 NLRB No. 14) Ladue, MO Sept. 28, 2001. Members Liebman and Truesdale, in agreement with the administrative law judge, held that the Respondent violated Section 8(a)(1) of the Act by attempting to cause the removal of union representatives engaged in protected handbilling and picketing activity in the parking lot in front of the Respondent's store. The Board majority concluded that the Respondent, by initiating a chain of events that culminated in the attempted removal of non-employee union representatives engaged in lawful, protected activity from the parking area in front of the Respondent's store, interfered with the Section 7 rights of the employees. Applying the principles of Food For Less, 318 NLRB 646 (1995) enfd. in relevant part 95 F.3d 733 (8th Cir. 1996), they found that the Respondent did not possess a property interest that entitled it to exclude the non-employee union representatives from the parking lot in which they were handbilling and picketing. [HTML] [PDF]

In dissent, Chairman Hurtgen pointed out that the Respondent could not and did not take steps to oust the pickets, that it called the owner-manager, i.e., the party that had control over the area in which the Union's activity occurred, and asked what the owner's policy was. The owner concluded that the policy was that the pickets should be removed, told the pickets to leave, and called the police when they refused to do so. "[T]he Respondent simply went to the owner who had control of the property, and the owner then took the action," the Chairman said, finding that the property owner had the right to take steps to oust the union representatives. Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Food & Commercial Workers Local 655; complaint alleged violation of Section 8(a)(1). Hearing at St. Louis on March 17, 1998. Adm. Law Judge David L. Evans issued his decision June 22, 1998.

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Plumbers Local 342 (Contra Costa Electric, Inc.) (32-CB-4435; 336 NLRB No. 44) Martinez, CA Sept. 28, 2001. In the earlier proceeding, 329 NLRB 688 (1999), the Board found that the Respondent Union's negligent failure to refer the Charging Party, Joe Jacoby, to a job in the proper order from its exclusive hiring hall did not violate its duty of fair representation and Section 8(b)(1)(A) and (2) of the Act. In reaching its decision, the Board overruled Iron Workers Local 118 (California Erectors), 309 NLRB 808 (1992), and other decisions to the extent they held that even a negligent failure to refer in the correct order violates the duty of fair representation. The Board relied on the Supreme Court's decisions in Steelworkers v. Rawson, 495 U.S. 362 (1990), and Air Line Pilots Assn. v. O'Neill, 499 U.S. 65 (1991), where it read those decisions together to mean that "mere negligence" in the operation of an exclusive hiring hall does not violate the duty of fair representation. [HTML] [PDF]

On December 12, 2000, the United States Court of Appeals for the District of Columbia Circuit reversed the Board. Jacoby v. NLRB, 233 F. 3d 611 (D.C. Cir. 2000). The court held that the Board's reading of Rawson and O'Neill (which were not hiring hall cases) could not be reconciled with the court's earlier holding that the Supreme Court in O'Neill did not intend to weaken the standard of review applicable to hiring hall operations. The court remanded the case to the Board to determine whether the Union's negligent conduct was an unfair labor practice, in light of what the court found to be "the union's heightened duty of fair dealing in the context of a hiring hall."

The Board assumed, for the purposes of this decision, that Rawson and O'Neill do not compel a finding that negligence in hiring hall operations does not breach a union's duty of fair representation and that a union has a "heightened duty of fair dealing" in the operation of an exclusive hiring hall.

Applying this "heightened duty" standard, the Board reaffirmed the earlier holding that inadvertent mistakes in the operation of an exclusive hiring hall arising from mere negligence do not violate the union's duty of fair representation and such mistakes do not violate Section 8(b)(a)(A) and (2). Consistent with the court of appeals' opinion and the law of the case, the Board reached these conclusions independently of the Supreme Court's statements in Rawson and O'Neill and instead, relied on the decisions prior to California Erectors. Accordingly, it reaffirmed the earlier decision overruling California Erectors and other decisions to the extent they are inconsistent with this view.

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

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Keller Ford, Inc. (7-CA-43269; 336 NLRB No. 56) Grand Rapids, MI Oct. 1, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(4) of the Act when it discharged employee Bryan Knapp. It found it unnecessary to determine whether the discharge, as contended by the judge, also violated Section 8(a)(3). [HTML] [PDF]

The judge dismissed the complaint allegation that the Respondent violated Section 8(a)(1) when supervisor Leonard Miller told Knapp that talking to other employees about Knapp's insurance copayment was "hazardous to [his] health," reasoning that Knapp was acting solely in his own interest and was not seeking group action. The Board, relying on K Mart Corp., 297 NLRB 80 fn. 2 (1989), found that Miller's statement would reasonably tend to interfere with Knapp's free exercise of his right to discuss his concerns and conditions of employment with his co-workers. Accordingly, it held that the Respondent's broad threat independently violated Section 8(a)(1) regardless of whether Knapp was actually engaged in protected concerted activity.

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Bryan Knapp, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Grand Rapids, Feb. 13 and 14, 2001. Adm. Law Judge Benjamin Schlesinger issued his decision May 2, 2001.

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Teamsters Local 107, Carpenters Metropolitan Regional Council, and Laborers Local 332 (Reber-Friel Co.) (4-CD-1003-2, et al.; 336 NLRB No. 41) Philadelphia, PA Sept. 28, 2001. The Board majority of Chairman Hurtgen and Member Truesdale concluded that the Reber-Friel warehouse employees represented by the Carpenters are entitled to perform the work in dispute. In making its award, the majority based its conclusion on the basis of employer preference and current assignment, employer past practice, relative skills, and economy and efficiency of operations. The charges in this proceeding alleged that the Respondents, Teamsters, Carpenters, and Laborers each violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by one or both of the other unions. [HTML] [PDF]

In dissent, Member Liebman noted that this case is an anomaly. In her view, the record does not entitle the Employer to relief under Section 10(k). She said

The material facts do not neatly fit the profile of a union's lawful use of self-help to preserve its members' work jurisdiction, which we have recognized as an exception to the prohibition in Section 8(b)(4)(D). On one hand, the Teamsters and the Laborers undisputedly used coercive means to obtain work that their members had not previously performed to a significant extent. On the other hand, the Unions' attempts to expand their work jurisdiction were made initially through written agreements with the Employer. The Employer freely chose to give both Unions a substantial, if not conclusive, contractual basis for claiming the work in dispute. . . . the Board's processes should not be made available to shield the Employer from the consequences of its own, dubious actions.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

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APF Carting, Inc., New York Connecticut Waste Recycling, Inc., Gem Enterprises, Inc. and Production and Maintenance Employees Local 116 (2-CA-27220, et al., 2-CB-15927; 336 NLRB No. 4) Mount Kisco and Bedford Hills, NY and Danbury, CT Sept. 28, 2001. The Board agreed with the administrative law judge's findings that Respondents APF and Gem engaged in extensive violations of Section 8(a)(1), (2), (3), and (5). These violations included, among others, bypassing Local 813 in January 1994 and directing APF employees to seek other employment if they wanted to continue membership in Local 813; withdrawing recognition from and refusing to bargain with Local 813 since May 1994; and refusing to furnish requested information to Local 813 in June 1994 concerning the relationship between APF and Gem. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Teamsters Local 813; complaint alleged violation of Section 8(a)(1), (2), (3), and (5). Hearing at New York, for 15 days beginning November 8, 1995, and concluding on July 2, 1998. Adm. Law Judge D. Barry Morris issued his April 2, 1999.

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Cogburn Healthcare Center, Inc. (15-CA-13874, et al., 15-RC-7988; 335 NLRB No. 105) Mobile, AL Sept. 27, 2001. The Board adopted the administrative law judge's findings that the Respondent engaged in widespread Section 8(a)(1) violations, except that it reversed his finding that the Respondent unlawfully promised benefits to employees. The Board also affirmed the judge's findings that the Respondent violated Section 8(a)(3) and (1) by discharging employees Toni Hill, Ethel Husband, Brenda Kirk, Carl Langham, and Carla Wiggins and violated Section 8(a)(3), (4), and (1) by discharging employee Elaine Collins. [HTML] [PDF]

The Respondent violated Section 8(a)(5) and (1) when it refused to bargain with the Union on April 18, 1996 when the Union requested bargaining based on a card majority. The Board, in agreement with the judge, held that a Gissel (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)) bargaining order is necessary to remedy the effects of the Respondent's extensive unfair labor practices. The Board said:

In Gissel, the Supreme Court "identified two types of employer misconduct that may warrant the imposition of a bargaining order: 'outrageous and pervasive unfair labor practices' ('category I') and 'less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes' ('category II')." The Court found that, in fashioning a remedy for category II cases, the Board can take into account the extensiveness of an employer's unfair labor practice violations in determining whether the "possibility of erasing the effects of past practices and of ensuring a fair election . . . by the use of traditional remedies, though present, is slight and that employee sentiments once expressed through cards would, on balance, be better protected by a bargaining order."

Here, the Board concluded that the Respondent's unlawful conduct demonstrates that the holding of a fair election in the future would be unlikely and that the "employees' wishes are better gauged by an old card majority than by a new election." It found that this case falls within Category II regarding which the Court stated that the Board "can properly take into consideration the extensiveness of an employer's unfair labor practices in terns of their past effect on election conditions and the likelihood of their recurrence in the future."

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Food & Commercial Workers Local 1657 and Toni M. Hill, an individual; complaint alleged violation of Section 8(a)(1), (3), (4) and (5). Hearing at Mobile on various dates in March, July, Aug. and Sept. 1997. Adm. Law Judge Howard I. Grossman issued his decision June 4, 1998.

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Freeman Decorating Company, et al. and Carpenters, Louisiana Carpenters Regional Council and Stage and Theatrical Employees [IATSE] Local 39 of Greater New Orleans (15-CA-14420-1, et al., 15-CB-4392, et al.; 336 NLRB 1) New Orleans, LA Sept. 28, 2001. In this case, the Union called a strike within the meaning of Section 8(d) of the Act but failed to provide proper notification to the Federal Mediation and Conciliation Service. The strike took the form of a refusal to refer employees through the Union's exclusive hiring hall. [HTML] [PDF]

The Respondents fired the strikers, contending that, pursuant to Section 8(d), all of the employees covered by its notice of termination forfeited their status as protected "employees" under the Act by engaging in an unlawful strike. After terminating the strikers, the Respondents withdrew recognition of the Union as collective bargaining representative of the employees.

The Board majority of Members Liebman and Walsh, however, concluded that the "loss-of-status" provision of Section 8(d) did not cover the employees involved because they were not working for the Respondents at the time of the Union's action. The majority held that Section 8(d) requires the existence of an actual employment relationship before a loss of protected status can occur as the result of engaging in an unlawful strike. Members Liebman and Walsh found that the Respondent Employers failed to establish a loss of protected status. They agreed with the judge's conclusion that the Respondent Employers' real motive for the mass "termination" was to rid themselves of Local 39 and its hiring hall, and that Local 39's failure to comply with Section 8(d)(3) merely provided a convenient vehicle for reaching that goal.

In dissent, Chairman Hurtgen stated:

As evident from this language, 'any employee' who engages in a strike is covered by the provision, i.e., is subject to a loss of status. However, the loss of status is itself more limited. The employee loses his status only vis-à-vis the employer involved in the labor dispute. As to the rest of the world, he retains his employee status. In sum, the coverage of the provision is broad; the consequence of the provision is narrow. My colleagues have confused the two concepts. They say that the coverage is limited to employees of the employer. [T]he language of Section 8(d) is to the contrary.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Carpenters, Louisiana Carpenters Regional Council and Stage and Theatrical Employees [IATSE] Local 39 of Greater New Orleans; complaint alleged violation of Section 8(a)(1), (2), (3), and (5) and Section 8(b)(1)(A). Hearing at New Orleans, on several days beginning on October 26 and ending on December 11, 1998. Adm. Law Judge Pargen Robertson issued his decision March 31, 1999.

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Metro Networks, Inc. (4-CA-26812, 27207; 336 NLRB No. 3) Philadelphia, PA Sept. 28, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Dennis Brocklehurst and Mary Colleen for engaging in union activity. [HTML] [PDF]

Contrary to the judge, the Board found that the Respondent violated Section 8(a)(4) and (1) by offering Brocklehurst severance pay in consideration for signing releases. The Board held that consistent with precedent, the plain language of the severance agreement would prohibit Brocklehurst from cooperating with the Board in important aspects of the investigation and litigation of unfair labor practice charges. The Board also asserted that the agreement would prohibit Brocklehurst from assisting other employees with regard to any matter arising under the Act and/or disclosing any information to the Board with regard to any and all investigations and proceedings.

Paragraph 4 of the severance agreement provided that, in exchange for the payment, Brocklehurst would release the Respondent from all

suits, actions, causes of action, judgments, damages, expenses, claims or demands, in law or equity, which you ever had, now have, or which may arise in the future regarding any matter arising on or before the date of execution of this Agreement, including but not limited to all claims (whether known or unknown) regarding your employment at or termination of employment from Metro . . . which could arise under . . . the National Labor Relations Act.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Television and Radio Artists Philadelphia Local; complaint alleged violation of Section 8(a)(1), (3) and (4). Hearing at Philadelphia, Jan. 12, 13, and 29, 1999. Adm. Law Judge James L. Rose issued his decision April 8, 1999.

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Taylor Wharton Division Harsco Corporation (15-RC-8321; 336 NLRB No. 9) Ft. Irwin, CA Sept. 28, 2001. The Board affirmed the hearing officer's recommendation that Petitioner's objections 6 and 9 be sustained. The election held on March 16, 2001 resulted in 90 votes for and 89 votes against the Petitioner, with one determinative challenged ballot. No exceptions were taken to the hearing officer's recommendation that the challenge to the ballot of William deLlacer be overruled. [HTML] [PDF]

With regard to objection 9, the Petitioner alleged that the Employer threatened all employees and eligible voters by distributing literature (newsletter) that portrayed a union organizer announcing that the Company had closed. Although the Employer argued that the newsletter was a lighthearted "tongue-in-cheek" mock newspaper and the cartoon was merely a mock comics section, the hearing officer found that the cartoon was coercive because it conveyed the message that the Employer's plant would close if the employees chose union representation. The Board, in agreement, held that an employer may predict the precise effects it believes unionization will have on its company; however, the prediction must be "carefully phrased on the basis of objective fact." Gissel Packing Co. v. NLRB, 395 U.S. 575, 618 (1969).

Objection 6 alleged that the employer "threatened and intimidated an employee and eligible voter by suggesting that he would suffer adverse consequences for displaying a Union bumper sticker on his car parked outside of management's office." Supervisor Nicky deLlacer, upon noticing the truck with prounion stickers told employee James Cribb that Cribb was "digging himself a hole." The Board agreed that these comments would reasonably be expected to have a chilling effect on employees' freedom of choice given the proximity of the incident to the election and the close election results. The hearing officer, applying Cambridge Tool Mfg., 316 NLRB 716 (1995), determined the proper test for evaluating conduct of a party is an objective one?whether it has "tendency to interfere with the employees' freedom of choice."

The Board remanded this proceeding and directed the Regional Director to open and count the ballot of deLlacer and to prepare a revised tally of ballots. If the Petitioner has received a majority of the votes cast, a certification of representative was to issue. However, if the Petitioner did not receive the majority, then the election shall be set aside and a second election shall be conducted.

(Members Liebman, Truesdale, and Walsh participated.)

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Liquid Transporters Inc., a wholly owned subsidiary of Trimac Transportation, Inc. (4-RC-20215, 20216; 336 NLRB No. 34) Croydon, PA Sept. 28, 2001. The Board, denying review of the Employer's petition to revoke certification, held that the Employer could not raise the issue of the supervisory status of the petitioner's election observer for the first time in its post-election objections. "It is well-established Board law, . . . that an employer must raise the alleged supervisory status of a union's election observer at the time of the preelection conference," the Board stated, citing Monarch Building Supply, 276 NLRB 116 (1985), among other cases. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

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KSM Industries, Inc. (30-CA-13762, et al.; 336 NLRB No. 7) Germantown, WI Sept. 28, 2001. The Board agreed with the administrative law judge that the Respondent had engaged in numerous unfair labor practices, including a violation of Section 8(a)(1) by threatening striking employees with a loss of jobs and closure of the facility because of their union activities; a violation of Section 8(a)(5) by refusing to process a grievance and to provide the Union with information it requested about the grievance; another violation of 8(a)(5) by insisting on a provision that replacement workers hired during the strike would not be displaced by returning strikers; and a violation of 8(a)(3) by failing and refusing to reinstate the strikers upon their unconditional offer to return to work. [HTML] [PDF]

The Board majority of Members Liebman and Walsh reversed the judge's additional finding that the Respondent did not violate the Act by asking strikers what they were doing for a living. During a strike that began in January 1997, the Respondent's operations manager Bill James told strikers: "[t]hese people in here have jobs" and asking "[w]hat are you doing for a livelihood?" The judge found that these remarks were not threatening because, during the strike, James passed along information to the strikers about companies that were hiring and received inquiries from other companies where strikers sought interim employment. Dissenting in part, Member Truesdale agreed with the judge on this point and said James' remark was "conversational not taunting."

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Paperworkers Local 7779; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Milwaukee, January 12-14, 1998. Adm. Law Judge Bruce D. Rosenstein issued his decision April 30, 1998.

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Little Rock Electrical Contractors, Inc. (11-CA-17399; 336 NLRB No. 8) Little Rock, AR Sept. 28, 2001. In a Supplemental Decision and Order, the Board agreed with the administrative law judge that the General Counsel established a prima facie case under the framework set out in FES that the Respondent violated 8(a)(3) and (1) of the Act by refusing to hire union applicants to perform electrical work at a casino construction project in Cherokee. Member Truesdale, dissenting in part, would have remanded the proceeding a second time to the judge to provide the Respondent "a sufficient opportunity" under FES to establish a defense. The majority opinion by Members Liebman and Walsh disagreed that the record should be remanded again to allow the Respondent to litigate whether the individuals the Respondent to litigate whether the individuals the Respondent hired were more qualified than the discriminatees. It noted the Respondent's brief did not request that the record be reopened, nor did the Respondent claim that the individuals it hired (excepting 20 Native Americans) were more qualified than the discriminatees. [HTML] [PDF]

In all, the Respondent hired 73 employees, of which 20 were Native Americans. The parties stipulated that the Respondent, according to its contract with the Tribal Counsel Gaming Enterprises, would give a hiring preference to Native Americans. The Board left to compliance the determination of which discriminatees would have been hired for the 53 available openings.

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Electrical Workers (IBEW) Local 238; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Winston-Salem, NC on Jan. 26 - 28, 1998. Adm. Law Judge Lawrence W. Cullen issued his decision Oct. 16, 1998.

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Bowling Transportation, Inc. (25-CA-26896; 336 NLRB No. 32) Owensboro, KY Sept. 28, 2001. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by telling employees Richard Ashby and Kenneth Hanks they were being disciplined for protected concerted activity and, in Ashby's case, for suspected union activity, and subsequently discharging them. It agreed that suspected union activity was a motivating factor in both discharges. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Richard Ashby, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Owensboro on Jul. 31 and Aug. 1, 2000. Adm. Law Judge William G. Kocol issued his decision Sept. 22, 2000.

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Williams Energy Services (16-CA-20164; 336 NLRB No. 11) Galena Park, TX Sept. 28, 2001. The Board majority of Members Liebman and Truesdale, affirming the administrative law judge, found that the Respondent unlawfully withdrew recognition on Nov. 17, 1999, upon receiving a Nov. 3, 1999 decertification petition signed by all unit employees. The Respondent took over the business on Aug. 2, 1999, as a successor employer. On Nov. 9, the Region dismissed the Aug. 5 decertification petition, citing St. Elizabeth Manor, 329 NLRB 341 (1999). The majority held that the Union's majority status was immune from attack for a reasonable period of time after the successor employer began to bargain, under the successor - bar doctrine of St. Elizabeth Manor. It concluded that a reasonable period had not elapsed. In that decision, the Board majority held that a collective-bargaining representative is "entitled to a reasonable period of bargaining without challenge to its majority status." [HTML] [PDF]

In dissent, Chairman Hurtgen, citing his dissenting opinion in Hill Park Health Care Center, 334 NLRB No. 55 (2001), and the dissenting opinion in St. Elizabeth Manor, said the Respondent thus did not violate Section 8(a)(5) by refusing to bargain with the Union. He stated further:

Finally, my colleagues contend that their application of the St. Elizabeth Manor successor - bar rule appropriately balances the competing interests of employee free choice and labor stability. I do not agree. Weighing both interests, I find that the appropriate balance must be struck in favor of employees' Section 7 right to choose whether or not to be represented. My colleagues, through St. Elizabeth Manor, improperly deprive them of this right. In sum, I would not foreclose employee free choice.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by PACE Local 4-227; complaint alleged violation of Section 8(a)(1) and (5). This case was submitted by stipulation dated May 26, 2000. Adm. Law Judge George Carson II issued his decision Aug. 11, 2000.

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United Food & Commercial Workers Local 1996 (10-CC-1335; 336 NLRB No. 35) Atlanta, GA Sept. 28, 2001. In this case, the Board addressed an issue of first impression: whether Section 8(b)(4)(B) of the Act prohibits a union from engaging in picketing of one employer in order to pressure another employer to recognize and bargain with the union as the certified representative of that employer's employees. The majority of Members Liebman and Walsh concluded that Section 8(b)(4)(B) does not proscribe secondary activity by a union for the purpose of enforcing its certification by the Board as the exclusive collective-bargaining representative of the primary employer's employees. [HTML] [PDF]

Accordingly, the majority found that the Respondent Union did not violate Section 8(b)(4)(ii)(B) by threatening to picket, picketing, and leafleting the United Way of Metropolitan Atlanta, a neutral, because an object of those actions was to enforce the Union's certification by the Board as the exclusive collective-bargaining representative of a unit of the Employer VNHS's employees.

Rejecting "any contention that our holding will 'open the floodgates' to widespread use of secondary pressures by unions," the majority, stressed these limitations:

First, the exemption from Section 8(b)(4)(B)'s general prohibition against cease doing business and recognition boycotts is available only to unions that have been certified by the Board under Section 9 of the Act as the representative of the primary employer's employees. The exemption is not available to any labor organization that does not meet this threshold requirement. Second, this exemption only applies in cases where an object of the secondary activity is to force or require the primary employer to recognize or bargain with its employees' certified collective-bargaining representative.

Chairman Hurtgen, in dissent, would find that the Respondent Union's picketing at the United Way's premises was unlawful:

The Respondent admits that it is engaged in a labor dispute with VNHS and that the United Way is a neutral with respect to that dispute. The Respondent's threats and picketing plainly constitute threats, coercion, or restraint of the United Way within the meaning of Section 8(b)(4)(ii). In addition, the Respondent concedes that an object of the picketing was to induce the United Way to cease contributing funds to VNHS. It is evident from the foregoing that an object of the Respondent's action was to force or require the United Way to cease doing business with VNHS, within the meaning of Section 8(b)(4)(ii)(B).

Chairman Hurtgen stated further:

The majority argues that as long as an object of a union's secondary activities is recognitional, and the union is certified, there is no violation even if the union also has a cease doing business objective. There is no merit to this contention. ...[I]t is clear from the text and legislative history of the Act that Section 8(b)(4) applies as long as an objective of the union's actions is proscribed. The Supreme Court has never recognized an exception to this established principle. Until today, the Board has not recognized such an exception either.

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

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J.R.L. Food Corp. d/b/a Key Food (2-CA-31661, et al.; 336 NLRB No. 6) Bronx, NY Sept. 28, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act by, among others, interrogating employees about union support or activities or about their cooperation with the Board's investigation, directing employees not to join or support the Union, and directing employees to report on the union activities of their fellow employees. [HTML] [PDF]

The Board disagreed with the judge on some other issues. The judge found no violation was committed when employee Cupertino Luna (Cupertino) was transferred to another store because it was in accordance with the Respondent's customary practices. The judge also dismissed the complaint allegation that Respondent unlawfully reduced Cupertino's pay. The Board, however, found that Cupertino's transfer was unlawfully motivated because the Respondent abruptly transferred him after he was observed exchanging pleasantries with union officials leafleting outside the store. After Cupertino's transfer, Respondent reduced his work day by 3-4 hours, which led to reduction in pay. Unlike the judge, who concluded that the Respondent would have terminated employee Jorge Santana even absent his union activity because of his verbal dispute involving a challenge to General Manager Manuel Matista's authority, the Board held that the Respondent seized on Santana's conduct as a pretext to disguise an unlawful discharge.

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Food & Commercial Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, NY on Jan. 11, 12, 14 and Feb. 8-9, 1999. Adm. Law Judge Michael A. Marcionese issued his decision April 12, 1999.

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Integrated Health Services, Inc. (8-CA-31566, et al.; 336 NLRB No. 13) Warren, Shelby, Seville, Alliance, Washington Court House, and Galion OH Oct. 2, 2001. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by granting wage increases and modifying the rates of pay of employees without the Union's consent at seven of its facilities during the term of its collective-bargaining agreements with the Union. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by SEIU District 1199; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cleveland on Jan 30 and 31, 2001. Adm. Law Judge Margaret M. Kern issued her decision April 23, 2001.

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C.P. Associates, Inc. (34-CA-8123); 336 NLRB No. 12) Storrs, CT Sept. 28, 2001. In agreement with the administrative law judge, the Board concluded that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire Todd Dexter and Judith Livesey because of their union membership. Contrary to the judge, who dismissed complaint allegations that the Respondent coercively interrogated Theodore Mayo, threatened him with job loss, and terminated him because of his union membership and activities, the Board held that the General Counsel met his burden of establishing that protected activity was a motivating factor in the Respondent's decision to discharge Mayo. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Bricklayers Local 1; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford on April 14 and 15, 1998. Adm. Law Judge Michael A. Marcionese issued his decision July 23, 1998.

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Desert Palace, Inc. d/b/a Caesar's Palace (28-CA-14240; 336 NLRB No. 19) Las Vegas, NV Sept. 28, 2001. The Board reversed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by instructing employees not to discuss the Respondent's on-going drug investigation with fellow employees, by discharging employees Richard Zollo and Louis Louft because they discussed the investigation with other employees, and by interrogating employee Daniel Miranto concerning whether employees had discussed the investigation. [HTML] [PDF]

The Board agreed with the Respondent's contention that its need to maintain the confidentiality of its ongoing drug investigation is a substantial business justification that justifies the intrusion on its employees' exercise of Section 7 rights.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Richard Zollo, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Las Vegas on Jan. 15 and 16, 1998. Adm. Law Judge Frederick C. Herzog issued his decision Aug. 25, 1998.

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Fleming Companies, Inc., Memphis General Merchandise Division (26-CA-17899, et al.; 336 NLRB No. 15) Memphis, TN Sept. 28, 2001. Members Truesdale and Walsh, with Chairman Hurtgen dissenting in part, agreed with the administrative law judge that the Respondent, through statements made by Leadman Mitch Zweig, violated Section 8(a)(1) of the Act by informing employees that it was imposing more stringent working conditions and would start enforcing rules concerning use of assigned timeclocks because of union organizing activity. The Board majority affirmed the judge's finding that the Respondent violated the Act by threatening employees with plant closure if the employees selected the Union to represent them, by removing union literature from an employee bulletin board, and by threatening an employee with discipline for posting union literature on it and distributing the literature in the break room. [HTML] [PDF]

Chairman Hurtgen, contrary to his colleagues, would find that the Respondent did not violate Section 8(a)(1) by removing union literature from a company bulletin board. He said that the court's rationale in Guardian Industries Corp. v. NLRB, 49 F.3d 317 (7th Cir. 1995), is applicable to the instant case. He also said "[t]here is no Section 7 right to post literature on company bulletin boards. There is only a Section 7 right to be free from discriminatory treatment. Thus, the relevant inquiry is whether the Respondent's posting policy, treats, even-handedly, like postings. If, as here, it does, there is no warrant for a special exception for union literature."

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charge filed by Teamsters Local 667; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Memphis on various dates between January 5, 1998 and March 20, 1998. Adm. Law Judge Richard J. Linton issued his decision Sept. 18, 1998.

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Mingo Logan Coal Co. and Mahon Enterprises, Inc. (9-CA-31797, 31939; 336 NLRB No. 5) Wharmcliffe, WV Sept. 28, 2001. The Board affirmed the administrative law judge's finding that the Respondents were joint employers and violated Section 8(a)(1) and (3) of the Act by laying off 18 employees on April 10, 1994; coercively interrogating employees about union support or union activities; and threatening employees with loss of job closure of the mine or not hiring for engaging in union activity. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Mine Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Logan and Charleston, WV on Jan. 21-24, Feb. 24-28, and Mar. 3-6, 1997. Adm. Law Judge Marion C. Ladwig issued his decision Feb. 25, 1998.

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Morgan Services, Inc. (3-CA-23305, et al.; 336 NLRB No. 21) Buffalo, Jamestown, Olean, and Rochester, NY Sept. 28, 2001. The Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act in January 2000 when it dealt directly with its rug department employees concerning a proposed change in the department's work schedule and unilaterally changed the work schedule without affording the Union adequate notice and an opportunity to bargain. It also adopted the judge's finding that the Respondent did not unlawfully assist in circulating a decertification petition signed by a majority of unit employees and did not unlawfully refuse to bargain with the Union on and after May 2, 2000 because it had a reasonable good-faith doubt of the Union's continuing majority status. [HTML] [PDF]

The Board modified the judge's recommended order by providing that the Respondent must cease and desist from bypassing and refusing to bargain with any labor organization that is or may become its employees' representative and must take certain affirmative actions at the Union's request if the Union still represents the Respondent's bargaining-unit employees.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charges filed by Laundry Workers Local 168-39; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Buffalo on Aug. 3 and 4, 2000. Adm. Law Judge Wallace H. Nations issued his decision December 15, 2000.

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Mining Specialists, Inc. and its alter ego or successor Point Mining (9-CA-30680; 335 NLRB No. 101) Belle, WV Sept. 24, 2001. The Board determined that the grand total amount due the discriminatees for backpay, medical expenses, and fund contributions to be $441,875.67. It also remanded to the Regional Director that part of this proceeding pertaining to Afton Willis for the purpose of recalculating the amounts owed him. [HTML] [PDF]

The issues in the instant proceeding, as framed by the Respondent's exceptions to the administrative law judge's supplemental decision were: (1) whether Afton Willis has entirely forfeited his right to backpay by failing to look for substantially equivalent interim employment; (2) whether the Respondents are relieved of their backpay obligation to Chester Murphy on the asserted grounds that it would have been futile for them to offer him recall from layoff because he was incarcerated at the time that job openings in his classification first became available; and (3) whether the Respondents are required under the terms of the remedial order in the unfair labor practice case to make the employees whole for unpaid production bonuses that were unilaterally discontinued by the Respondents. With regard to the preceding issues, the Board, in agreement with the judge, found: that Willis has not entirely forfeited his right to backpay; that the Respondents have not established it would have been futile to offer Murphy recall from layoff under the circumstances; and that the Respondents are required to make the employees whole for those unpaid bonuses.

In an initial supplemental decision, 330 NLRB No. 17 (1999), the Board granted the General Counsel's motion for partial summary judgment as to certain allegations, and found that the Respondents violated Section 8(a)(5) and (1) of the Act by abrogating their collective-bargaining agreement with the Union and by failing and refusing to bargain with the Union about the employees' terms and conditions of employment. It remanded for hearing factual issues raised properly by the Respondents' answer to the compliance specification.

(Members Liebman, Truesdale, and Walsh participated.)

Hearing at Charleston on May 2, 2000. Adm. Law Judge John H. West issued his supplemental decision Feb. 9, 2001.

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Transit Union Local 1433 (Phoenix Transit System) (28-CB-5097; 335 NLRB No. 100) Phoenix, AZ Sept. 24, 2001. The Board adopted the recommended Order of the administrative law judge and dismissed the complaint which alleged that the Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act by supplying information to Phoenix Transit System (PTS) which resulted in PTS's discharge of employee Samuel Williams, and by urging PTS to intensify its efforts to locate information that would have an adverse effect on Williams' employment status because Williams did not support incumbent officials of Respondent and engaged in dissident internal union activities and/or for other arbitrary or discriminatory reasons-reasons other than Williams' failure to render uniformly required initiations fees and periodic dues. [HTML] [PDF]

In adopting the judge's conclusion that the complaint is barred by Section 10(b) of the Act, the Board relied on the finding that, no later than September 11, 1998, Williams was on notice of facts that reasonably engendered suspicion that an unfair labor practice had occurred, i.e., that the Respondent was the party who supplied PTS with the information about his criminal history which directly resulted in his discharge. The original and first amended unfair labor practice charges were filed by Samuel Williams on March 17 and March 30, 1999, respectively.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charge filed by Samuel Williams, an individual; complaint alleged violation of Section 8(b)(1)(A) and 8(b)(2). Hearing at Phoenix on July 11-13, 2000. Adm. Law Judge Burton Litvak issued his decision June 22, 2001.

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Ark Las Vegas Restaurant Corp. (28-CA-14228, et al.; 335 NLRB No. 97) Las Vegas, NV Sept. 25, 2001. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) and (3) of the Act by, among others, applying, rescinding, and sub nom returning of an antibutton rule, and levying a variety of discharges, suspensions, and warnings upon union activists. However, contrary to the judge, the Board dismissed the complaint allegations that the written warning given to employee Ron Isomura was motivated by union animus and that manager Christine Flores' statement to employee Yvonne Spears was an unlawful threat. Noting the judge's failure to order the Respondent to rescind certain handbook rules, it ordered that the Respondent rescind these rules and publicize the rescission in the same fashion that the unlawful rules were publicized. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Joint Executive Board of Las Vegas Hotel & Restaurant Workers Local 226; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Las Vegas on various dates between October 6 and 15, 1997. Adm. Law Judge James M. Kennedy issued his decision on Sept. 21, 1998.

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Wayne J. Griffin Electric, Inc. (1-CA-34180, et al.; 335 NLRB No. 104) Holliston, MA Sept. 27, 2001. In agreement with the administrative law judge, the Board held that the Respondent committed numerous unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. It also adopted the judge's dismissal of certain paragraphs of the consolidated complaint. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Electrical Workers IBEW Local 103; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Boston on various dates in Feb., March, and May 1998. Adm. Law Judge Michael A. Marcionese issued his decision Feb. 4, 1999.

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Teamsters Local 282 (E.G. Clemente Contracting Corp.) (29-CB-10969; 335 NLRB No. 98) Staten Island, NY Sept. 24, 2001. Reversing the administrative law judge's recommendations, the Board dismissed the complaint which alleged that Respondent violated Section 8(b)(1)(B) and 8(b)(3) of the Act. In her decision, the judge held that the Respondent violated Section 8(b)(1)(B) on August 9 through 11, 1999, by engaging in a strike and picketing with an unlawful object of coercing the employer to select the General Contractors' Association (GCA) as its collective-bargaining representative and violated Section 8(b)(3) by engaging in a strike and picketing with an unlawful object of coercing the employer to involuntarily agree to the designation of the GCA as its collective-bargaining representative, a nonmandatory subject of bargaining, and with the further unlawful object of coercing the employer to be bound to the agreement negotiated by the GCA to which it did not belong. [HTML] [PDF]

The issue presented here is whether the Respondent violated the Act by striking E.G. Clemente Contracting Corp. in support of its demand that Clemente accept a contract containing the same provisions as the Respondent's contract with a multiemployer association. The Board held that this case is governed by the principles established in Teamsters Local 705 (Kankakee-Iroquois), 274 NLRB 1176 (1985), petition for review denied sub nom. Kankakee-Iroquois County Employers' Assn. v. NLRB, 825 F.2d 1091 (7th Cir. 1987), where the Board, in agreement with the judge, found that the union's conduct did not violate Section 8(b)(1)(B). Applying the principles of Kankakee-Iroquois to the facts of this case, it reversed the judge.

The judge relied on three cases in support of her findings. The first, Retail Clerks Local 770 (Fine's Food Co.), 228 NLRB 1166 (1977), the Board found consistent with the principles of Kankakee-Iroquois but easily distinguishable from this case. In Fine's Food, unlike Kankakee-Iroquois and this case, the union coerced the employer to agree to be bound by the terms of a future collective-bargaining agreement to be negotiated by a multiemployer association to which the employer did not belong, the Board determined. It held that the other two cases cited by the judge, Commercial Workers Local 1439 (Food City West), 262 NLRB 309 (1982), and Laborers Local 652 (Thoner & Birmingham Construction Corp.), 238 NLRB 1456 (1978), are not so easily distinguished. In these cases, the unions, by threatening to strike, striking, or picketing sought to compel independent employers to agree to contracts that the unions had already negotiated with multiemployer associations. In both cases, the Board had concluded that the "effect" of the unions' conduct was to coerce the employers to select the multiemployer associations as their collective-bargaining representatives in violation of Section 8(b)(1)(B).

The Board noted that in Kankakee-Iroquois, it referred to Food City West and Thoner & Birmingham as "exceptions" to the general rule that Section 8(b)(1)(B) is a "prohibition against a union coercing an employer into foregoing the employer's choice of its representatives for future collective-bargaining." This Board, no longer convinced that there is any principled basis on which the decisions can be reconciled with the general rule the Board enunciated in Kankakee-Iroquois, said:

. . . we have taken into account the fact that Food City West and Thoner & Birminngham were decided prior to NLRB v. Electrical Workers Local 340, 481 U.S. 573, 586 (1987), in which the Supreme Court admonished the Board that Section 8(b)(1)(B) is to be given a "limited construction." For these reasons, we have decided to overrule Food City West and Thoner & Birmingham to the extent that they are inconsistent with the general rule, established by the Board in Kankakee-Iroquois and affirmed by the court of appeals, that it is not a violation of Section 8(b)(1)(B) for a union to seek from an independent employer a contract containing the same provisions as those in an agreement the union has already negotiated with a multiemployer association.

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

Charge filed by E.G. Clemente Contracting Corp.; complaint alleged violation of Section 8(b)(1)(B) and (3). Hearing at Brooklyn, February 28, 2000. Adm. Law Judge Margaret M. Kern issued her decision June 21, 2000.

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Quarry Workers Local 829, a/w Laborers (Mississippi Lime Co.) (14-CD-976; 335 NLRB No. 102) St. Genevieve, MO Sept. 27, 2001. Relying on employer preference, and economy and efficiency of operations, the Board decided that employees of the Mississippi Lime Co. represented by the Quarry Workers Local 829, rather than Steelworkers Local 169, are entitled to operate and maintain the Maerz vertical kiln at the Employer's St. Genevieve, Missouri facility. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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Wal-Mart Stores, Inc. (16-CA-20578; 335 NLRB No. 103) Lubbock, TX Sept. 25, 2001. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act, through District Manager Craig, by interrogating employee Gomez about her union activities and soliciting Gomez to submit grievances to the Respondent in order to interfere with employee rights guaranteed by the Act; and that the Respondent did not violate Section 8(a)(1) by creating the impression among employees that their activities for the UFCW were under surveillance and telling department store manager Lewie Spearman he could not be involved with the Union, could not attend union meetings, or support the Union. In agreeing with the judge that Spearman was a statutory supervisor, the Board limited its finding to Spearman's authority to, at the least, effectively recommend pay raises in connection with the appraisal process at the Lubbock store. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by the Food and Commercial Workers International; complaint alleged violation of Section 8(a)(1). Hearing at Lubbock on Jan. 18, 2001. Adm. Law Judge William N. Cates issued his decision Feb. 7, 2001.

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Tellepsen Pipeline Services Co. (16-CA-20035, 16-RC-10120; 335 NLRB No. 88) Houston, TX Sept. 24, 2001. Affirming the administrative law judge's decision, Members Liebman and Truesdale held that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating employees Scott Stacy and Jimmie Vickery on June 14 and July 29, 1999, respectively; and violated Section 8(a)(1) and engaged in objectionable conduct by "[t]elling employees that its client, Texas Utilities, could terminate its contract with Respondent if the Union won a forthcoming election, that the employees might lose their jobs, and that Respondent would close the business." They set aside the August 10, 1999 election held in Case 16-RC-10120 (the Union lost 17-12), and directed a second election. [HTML] [PDF]

Chairman Hurtgen, dissenting in part, found that Supervisor Redman's statements to employee Stacy that Respondent's client TXU could terminate its contract with Respondent if the Union won the election, and that employees might lose their jobs, did not violate Section 8(a)(1). "Redman was not threatening action by Respondent; he was only saying what TXU could do," the Chairman explained. He also noted that Redman was a low-level supervisor and a close personal friend of Stacy's, and that Redman's statement was made to Stacy alone in a telephone conversation and was not disseminated among other employees.

The Chairman also disagreed that the Respondent's layoff of Vickery was unlawful as of July 29, 1999. He noted the only arguably protected, concerted activity that Vickery engaged in, and that the Respondent knew about prior to July 29 was his speaking up at a July 14, 1999 safety meeting. Assuming that Vickery's conduct was protected, concerted activity and that a prima facie case has been established, the Chairman would find Respondent showed that Vickery would have received the same treatment on July 29 because of reduced work, even in the absence of this activity. Chairman Hurtgen agreed however that the Respondent subsequently converted the layoff into a termination and that it did so for discriminatory reasons-Vickery's reconsideration of his vote in favor of the company.

Members Liebman and Truesdale rejected the idea that the potentially coercive character of an employer's predictive statements turns on the semantic distinction between "would" and "could." They explained: "A prediction of adverse consequences of unionization, however, it is formulated, must have an objective basis. . . . Redman had no such basis for connecting the union's election victory to cancellation of the contract-whether as a possibility, a probability, or a certainty." They also disagreed with Chairman Hurtgen's reliance on the absence of evidence that Redman's statement to Stacy was disseminated to other employees.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by Pipeliners Local 798; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Fort Worth, Dec. 8-10, 1999. Adm. Law Judge Howard I. Grossman issued his decision March 2, 2000.

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Villa Maria Nursing and Rehabilitation Center and The Service Master Co. (12-CA-18137, 12-RC-7957; 335 NLRB No. 99) North Miami, FL Sept. 26, 2001. Members Liebman and Truesdale affirmed the administrative law judge's findings that Respondent Villa Maria violated Section 8(a)(1) of the Act by threatening employee Villa Louis with loss of benefits if he voted in UNITE, by distributing an unprecedented and previously unannounced survey of employee working conditions during the Union's organization campaign, by engaging in surveillance of its employees' union activities, and by establishing new benefits to discourage employees from voting for or supporting the Union. This proceeding also involves elections held on May 31, 1996 in Case 12-RC-7957 among employees in two separate bargaining units of Respondent Villa Maria's employees and of Respondent Service Master's employees who work at the Villa Maria facility. The judge found that the Union intended to file objections only to the conduct of the Service Master unit election. Having found that Respondent Service Master committed no unfair labor practices, he recommended dismissal of the Union's objections and certification of the results of each election. [HTML] [PDF]

Contrary to the judge, Members Liebman and Truesdale found that the Union's objections encompassed conduct allegedly affecting the same-day elections held in both units. In agreement with the judge's alternative reasoning, they found that the unfair labor practices committed by Respondent Villa Maria during the critical period interfered with the Villa Maria unit election and directed a second election among those employees. Members Liebman and Truesdale certified that a majority of the valid ballots cast by the Service Master unit employees were not cast for UNITE.

Chairman Hurtgen, concurring and dissenting in part, would dismiss the allegation that the Respondent, by distributing the employee satisfaction survey, violated Section 8(a)(1) by soliciting employee grievances and impliedly promising to remedy them in order to discourage union support and activity. He found that the survey did not unlawfully promise a benefit. Nor was the survey itself an unlawful grant of a benefit. Chairman Hurtgen, finding that there is an insufficient basis to uphold the judge, does not agree that the Respondent violated Section 8(a)(1) by threatening employees with a loss of benefits if they chose union representation.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charge filed by UNITE; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami on 5 days between Dec. 11, 1996 and Jan. 7, 1997. Adm. Law Judge Benjamin Schlesinger issued his decision Jan. 5, 2001.

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The L.D. Kichler Co. and Electrical Workers IBEW Local 1377 (8-CA-29644, 8-CB-8555; 335 NLRB No. 106) Independence, OH Sept. 28, 2001. The Board held that: (1) Respondent L.D. Kichler Co., through its agent, Mary Lou Mankowski, violated Section 8(a)(1) of the Act by telling newly hired employee Ella Joynt that she had to sign a dues-deduction authorization or be fired; (2) Respondent IBEW Local 1377 violated Section 8(b)(1)(A) in November 1997 by failing to provide Ella Joynt notice of her rights under NLRB v. General Motors Corp., 373 U.S. 734 (1963) and Communications Workers v. Beck, 487 U.S. 735, 745 (1988), not to become a member and to pay only union dues and fees attributable to the Union's representation activities at the time it first sought to obligate her to pay dues under the parties' union-security clause; and (3) Respondent IBEW Local 1377 violated Section 8(b)(2) by requesting Respondent L.D. Kichler Co. to discharge Joynt on about February 2, 1998, and by causing her discharge. [HTML] [PDF]

The Board rejected the Union's argument, citing California Saw, that the obligation to provide notice to newly hired nonmember employees of the extent of their obligations under a union-security clause is triggered by the presentation of a member application and a dues checkoff authorization, and that union steward Richard Gibbs presented Joynt with a membership application alone. California Saw & Knife Works, 320 NLRB 224, 233 (1995), enfd. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). The Board explained that a union must notify a newly hired nonmember of Beck and General Motors rights when (or before) it attempts to obligate him to pay dues and that notice at this time is essential because, in its absence, an employee may be misled into believing that the union-security provision requires full union membership or the payment of full dues. Soliciting Joynt's membership in the Union by presenting her with the membership application constituted an attempt to obligate her to pay full dues under the parties' union security clause, and thus triggered the Union's obligation to notify her of her Beck rights, the Board held. It wrote:

In California Saw, the occasion of the respondent union's initial effort to obligate newly hired nonmember employees to pay dues customarily took the form of presenting a new hire with a membership application and a dues-checkoff form. In the case at hand, Joynt was offered only a membership application. We find that, under the circumstances, the difference is not dispositive. The solicitation of membership in this case carried with it the same implicit request that the employee commit to paying full dues, and the same potential that the employee would be misled regarding his obligations under the union-security clause, as did the union's presentation of the membership application and dues-checkoff authorization in California Saw. Thus, because Gibbs' solicitation of Joynt to join the Union, without concurrent notice of her rights, created the possibility that Joynt would be misled into believing that 'assumption of full membership is required,' the Union breached its duty of fair representation by placing Joynt in the position of potentially believing that she was obligated to join the Union, without informing her of her rights.

Finding that the Union violated Section 8(b)(2) by requesting and causing Joynt's discharge, the Board agreed with the judge that the Union failed to fulfill its obligations under Philadelphia Sheraton Corp., 136 NLRB 888 (1962), enfd. sub nom. NLRB v. Hotel Employees Local 568, 320 F.2d 254 (3d Cir. 1963), before seeking Joynt's discharge. Accordingly, the Board found it unnecessary to pass on the judge's finding that a failure to provide initial Beck notice was a basis for the 8(b)(2) violation.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Ella Joynt, an individual; complaint alleged violation of Section 8(a)(1) and Section 8(b)(1)(A) and 8(b)(2). Hearing at Cleveland, Jan. 20-21, 1999. Adm. Law Judge Arthur J. Amchan issued his decision March 29, 1999.

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Community Hospitals of Central California d/b/a University Medical Center (32-CA-15864, 15976; 335 NLRB No. 87) Fresno, CA Sept. 26, 2001. Members Liebman and Walsh affirmed the administrative law judge's finding that as of October 7, 1996, the Respondent has been a successor employer to Valley Medical Center (VMC or the predecessor) under the test of Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41-43 (1987), and NLRB v. Burns Security Services, 406 U.S. 272 (1972). They also agreed with the judge that a unit consisting of employees previously employed by VMC in unit 7 job classifications remained intact under the Respondent and continues to be an appropriate single-facility unit; that the Respondent's obligation to bargain with the California Nurses Association was established as of October 7, at which time the Respondent had assumed control of the predecessor's employees; and that the Respondent violated Section 8(a)(5) and (1) by failing to honor its obligation. Members Liebman and Walsh also affirmed the judge's finding that the Respondent violated Section 8(a)(1) by maintaining unlawful Rule l (insubordination, etc.) and Rule 8 (release or disclosure of confidential information) in its employee handbook, Standards of Conduct. [HTML] [PDF]

In agreeing that the Respondent unlawfully failed to recognize and bargain with the Union, Members Liebman and Walsh relied on the successor bar rule established by the Board in St. Elizabeth Manor, 329 NLRB 341 (1999). Alternatively, they agreed with the judge, applying Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), that the Respondent did not establish that it had a good faith, reasonable doubt about the Union's continued majority status and that, indeed, the Respondent never relied on any alleged good-faith doubt as a reason not to recognize the Union. Thus, even if the Respondent's refusal to recognize the Union had not been unlawful under St. Elizabeth Manor, it would have been unlawful under Allentown Mack. Affirming the judge's recommended Order, Members Liebman and Walsh required the Respondent to recognize and bargain in good faith with the Union on behalf of the unit employees.

Chairman Hurtgen concurred in part and dissented in part. In finding that the Respondent unlawfully refused to recognize and bargain with the Union and that an affirmative bargaining order is warranted, he does not apply the "successor bar" rule established in St. Elizabeth Manor, a case in which he dissented. Instead, Chairman Hurtgen held, under previously well-established and well-settled precedent and in agreement with the judge, that the Respondent was not justified in refusing to recognize the Union because it did not have a reasonable doubt, based on objective factors, that the Union continued to command the support of a majority of the unit employees. The Chairman did not join his colleagues in affirming the judge's finding that the Respondent violated Section 8(a)(1) by maintaining certain provisions in its employee handbook, concluding their finding is inconsistent with the Board majority's application of the relevant law in Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). He would therefore dismiss the allegations regarding Standards of Conduct l and 8.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by California Nurses Association; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Clovis, Oct. 7-9 and Dec. 9-12, 1997; March 3-6, 10-13 and April 7-10, 1998. Adm. Law Judge Michael D. Stevenson issued his decision Sept. 18, 1998.

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Accurate Tool & Manufacturing Inc., d/b/a Accurate Wire Harness (9-CA-36910, 37007; 335 NLRB No. 91) Springboro, OH Sept. 19, 2001. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by threatening to discharge, and discharging, 12 employees for engaging in a protected concerted walkout on July 9, 1999 and by suspending and discharging employee Tammy Jackson for allegedly threatening a coworker with bodily harm if she did not participate in the walkout. [HTML] [PDF]

Respondent's president, Nestor Fernandez, told employees immediately after they walked out that if they did not return within 2 minutes, the Respondent would accept it as a resignation. The Board agreed with the judge that these statements constituted unlawful threats to discharge the employees if they engaged in a protected strike. Conair Corp., 261 NLRB 1189 (1982). Relying on Pink Supply Corp., 249 NLRB 674 (1980), the Respondent argued that the employees were not discharged. Unlike the employer in Pink Supply where the Board found that the employees had not been discharged, the Board said "the Respondent in this case expressed no uncertainty to the employees about how it would treat those who walked out. Rather, the Respondent twice told the employees unequivocally that it would treat the walkout as a resignation."

Regarding the suspension and discharge of Jackson, the Board agreed with the judge's conclusion that under NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964), which governs discharges for alleged misconduct arising out of protected concerted activity, the Respondent lacked an honest belief that Jackson threatened employee Jamie Jewell if she did not participate in the walkout.

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Tammy Jackson, an individual; complaint alleged violation of Section 8(a)(1) and (4). Hearing at Cincinnati on January 11, February 29 and March 1 and 2, 2000. Adm. Law Judge Nancy M. Sherman issued her decision June 30, 2000.

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Gormac Custom Manufacturing, Inc. (8-CA-29599; 335 NLRB No. 94) Lima, OH Sept. 20, 2001. On remand, the administrative law judge, with Board approval, concluded that the Respondent has not met its burden of establishing that the conduct set forth in its objections occurred, denied the objections, and held that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing on and after December 31, 1997, to bargain with the Union as the exclusive collective-bargaining representative of the employees in the bargaining unit. The election of June 14, 1996 showed that 19 votes were cast for the Union, 16 against, 1 void ballot, and 4 challenged ballots. A revised tally of ballots issued on October 8, 1997 revealed that 20 were cast for the Union, with 16 against, rendering the 3 remaining challenged ballots as insufficient to affect the results of the election. In the decision reported at 324 NLRB 423 (1997), the Board certified the Union as the exclusive representative of the unit employees. [HTML] [PDF]

In a subsequent decision, 325 NLRB No. 103 (1998) (not reported in Board volumes), the Board granted the General Counsel's motion for summary judgment, finding that the Respondent's refusal to bargain in violation of Section 8(a)(5). On September 3, 1999, the United States Court of Appeals for the Sixth Circuit reversed the Board's decision and remanded this proceeding for an evidentiary hearing on the Respondent's election objections. The court majority cited the closeness of the election and stated that "[t]wo things are apparent from this outcome: (1) a switch of several votes would affect the outcome of this close contest, and (2) for some unexplained reason, six of forty-five eligible voters did not vote-some thirteen percent. Had just half of these absentees voted, the outcome might have been different." The court also noted that "[w]e are not concerned in this opinion with the legality of the challenge; we confine ourselves to Gormac's request for a hearing on the fairness of the election itself."

(Members Liebman, Truesdale, and Walsh participated.)

Hearing at Cleveland, June 15, 2000. Adm. Law Judge Eric M. Fine issued his decision Oct. 18, 2000.

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Alpine Log Homes, Inc. (19-CA-26004, et al.; 335 NLRB No. 71) Victor, MT Aug. 27, 2001. Affirming the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) and (3) of the Act by promulgating and enforcing an unlawful no-solicitation and no-distribution rule and by disciplining, laying off, and discharging employees for violating said rule and for engaging in union activity. [HTML] [PDF]

Members Liebman and Truesdale, unlike Chairman Hurtgen, agreed with the judge's finding that Steven Lehman was constructively discharged. They said "[t]he Board has held that a significant reduction in income for an indefinite period of time, causing an employee to quit and seek alternative employment, when a motive for such treatment was protected activity, will establish constructive discharge. See Consec Security, 325 NLRB 453 (1998), and cases cited therein, enfd. mem. 185 F.3d 862 (3d Cir. 1999)." In a footnote, Members Liebman and Truesdale also said ". . . an employee's voluntary quit will be considered a constructive discharge when an employer conditions an employee's continued employment on the employee's abandonment of his or her Sec. 7 rights and the employee quits rather than comply with the condition. Here, Member Liebman finds that, by issuing Lehman two disciplinary notices and twice suspending him for his union activity, Respondent led Lehman to reasonably believe that he was compelled to choose between abandoning his union activity or being terminated."

While he does not subscribe to the "constructive discharge" analysis of his colleagues, Chairman Hurgten concurred in the 8(a)(3) result. He asserted that Lehman was actually discharged. He stated:

The evidence shows that Respondent unlawfully suspended Lehman on February 17. The suspension notice said that Lehman would be discharged if he continued solicitation activities. After the suspension, Lehman returned on February 25 and resumed his solicitation activities. On March 2 or 3, Respondent suspended Lehman "indefinitely." Lehman was supposed to call Respondent on March 9 to discuss the matter. Lehman did not call on March 9, but did call on March 10. He said that, if he still had a job, he was giving 2 weeks' notice of resignation. Respondent called back 10 minutes later and said that Lehman did not have a job because he failed to call on March 9.

In my view, Respondent discharged Lehman on March 10. Respondent told him that he no longer had a job. Respondent thereby fulfilled its threat to terminate Lehman if he persisted in solicitation activity. Respondent's reliance on Lehman's 1-day tardiness in calling Respondent was a pretext that was seized upon by Respondent to mask its unlawful reason for terminating Lehman.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Laborers Montana District and Steven E. Lehman, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hamilton, MT on Sept. 28 and 29, 1999. Adm. Law Judge Gerald A. Wacknov issued his decision Jan. 28, 2000.

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Dobbs International Services, Inc. and Hotel Employees and Restaurant Employees Local 69 (22-CA-21477, 21580, 22-CB-8289, 8386; 335 NLRB No. 78) Newark, NJ Aug. 27, 2001. The Board upheld the administrative law judge's findings of Section 8(a)(1), (2), and (3), and Section 8((b)(1)(A) violations in this case involving a struggle for employee support between incumbent union, Hotel Employees and Restaurant Employees Local 69, and a rival outside union Industrial, Service, Transport and Health Employees District 6. Specifically, the judge found that Respondent Dobbs violated Section 8(a)(2) and/or (1) by assisting District 6 in its attempt to organize Dobbs' employees and assisting Local 69 in repelling District 6's organizing drive; that Dobbs violated Section 8(a)(3) and (1) by suspending an employee who supported District 6; and that Local 69 violated Section 8(b)(1)(A) in several instances in its attempts to convince employees not to support District 6. [HTML] [PDF]

Chairman Hurtgen, dissenting in part, would reverse the judge and find that Dobbs did not violate Section 8(a)(2) by rendering unlawful assistance to District 6 by permitting District 6 to hold a meeting on its property and permitting District 6 representatives to distribute literature on its property. The Chairman concluded that Dobbs did not knowingly permit District 6 to hold meetings or to distribute literature on its property.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Industrial, Service, Transport and Health Employees District 6 and Hotel Employees and Restaurant Employees Local 69; complaint alleged violation of Section 8(a)(1), (2), and (3), and Section 8((b)(1)(A). Adm. Law Judge Robert T. Snyder issued his decision June 23, 1998.

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Easton Hospital (4-CA-27704; 335 NLRB No. 85) Easton, PA Sept. 19, 2001. Affirming the administrative law judge's recommended Order, the Board dismissed the complaint which alleged that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the United Independent Union, NFIU/LIUNA, as the exclusive collective-bargaining representative of a unit of the Hospital's registered nurses working in certain specialized assignments. The Board agreed with the judge that, under the standards of Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), the Respondent had a good-faith uncertainty as to the continued majority support of the Union based on a November 24, 1998 letter signed by 7 of the 14 unit employees that stated: [HTML] [PDF]

We feel that we have been misrepresented and therefore would like an immediate opportunity to revote to determine whether we want the union to continue its representation of our needs with Easton Hospital.

In Levitz Furniture Co. of the Pacific, 333 NLRB No. 105 (2001), which issued while this case was pending before the Board, the Board held that "an employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees." Id., slip op. at 1. The Board also held the Levitz analysis would be applied only prospectively and that all pending cases involving withdrawals of recognition will be decided under existing law-the "good-faith uncertainty" standard in Allentown Mack. In this case, the Board decided that the employees' use of the phrase "we feel that we have been misrepresented" suggests dissatisfaction with union representation and the expression of dissatisfaction coupled with their request for a vote, constituted sufficient evidence to establish a good-faith uncertainty as to the Union's majority status under Allentown Mack. Member Walsh stressed that in the future, in all cases arising after the Levitz decision, this type of evidence may be sufficient to support an employer's request for an election, but will no longer be sufficient to justify a withdrawal of recognition.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charge filed by United Independent Union, NFIU/LIUNA; complaint alleged violation Section 8(a)(1) and (5). Hearing at Philadelphia, July 20, 1999. Adm. Law Judge Martin J. Linsky issued his decision Sept. 1, 1999.

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Performance Friction Corp. (11-CA-16040, 18044; 335 NLRB No. 86) Clover, SC Sept. 20, 2001. The Board found, contrary to the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating employee Merri Rowe about union support or activities. The judge found that (1) Team Leader Hamacher was the Respondent's agent: thus, Respondent was responsible for his actions and (2) that Hamacher's question to Rowe: "Merri, you're not going to start the union stuff up again?" did not violate Section 8(a)(1). The General Counsel and Charging Party UAW, excepted to the judge's failure to find a violation. [HTML] [PDF]

The Board remanded the proceeding to the Regional Director to issue a new backpay specification recalculating the backpay owed by the Respondent to Martha Hinson, Manuel Mantecon, Jerry Kennedy, and Merri Rowe in accordance with its modifications to the judge's findings. The judge adopted the Region's gross backpay formula, finding that it employed a reasonable methodology and was reasonably designed to closely approximate the amount of backpay due the four discriminatees (two of the six discriminatees settled out at the commencement of the hearing). The Region's formula is predicated on the hours and earnings of 18 comparable employees employed through the liability period. The Board affirmed the judge's finding that the comparable or representative employee approach is an accepted methodology, and appropriate here. It found merit in the Respondent's specific exceptions to the Region's methodology as it relates to: (1) the average rate of pay level advancement, and (2) absenteeism. The Board ordered:

Specifically, in accordance with our modifications to the judge's findings, the Region is directed to revise the backpay formula both to calculate (or to verify the Respondent's calculations) the average intervals between pay levels and to account for 'average' employee absenteeism of the comparable employees. The revised formula must then be applied to each of the four discriminatees. Additionally, the backpay period must be adjusted (shortened) for both Hinson and Rowe (Rowe's first backpay period only) to reflect our finding that their backpay period closed on the Respondent's good-faith attempt to communicate its 1996 offers of reinstatement to them at their last-known addresses. Kennedy's backpay must be reduced for the period he was incarcerated. Finally, the Respondent's backpay obligation to Rowe continues until the Respondent makes Rowe a valid offer of reinstatement.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charge filed by the UAW; complaint alleged violation of Section 8(a)(1). Hearing at Clover for 13 days between Nov. 30, 1998 and May 6, 1999, and by phone on June 10, 1999. Adm. Law Judge Richard J. Linton issued his decision October 28, 1999.

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The Brookdale University Hospital (29-CA-22466; 335 NLRB No. 89) Brooklyn, NY Sept. 19, 2001. The Respondent violated Section 8(a)(1) of the Act by informing employee Stanley Rohlehr in February 1999 that it would be monitoring his work more closely because of his activities for Service Employees Local 1199, the Board held in agreement with the administrative law judge. [HTML] [PDF]

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Stanley Rohlehr, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn on Sept. 15, 1999. Adm. Law Judge D. Barry Morris issued his decision Nov. 2, 1999.

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American Medical Response, Inc. and EMTS & Paramedics International and its Local 1 (1-CA-35553, et al., 1-CB-9098, et al.; 335 NLRB No. 90) Natick and Quincy, MA Sept. 20, 2001. The Board upheld the administrative law judge's findings that following the merger of two companies into Respondent American Medical Response (AMR), certain employees were and others were not properly accreted into the bargaining unit of AMR employees represented by Respondent EMTS & Paramedics International (IAEP); and that AMR violated Section 8(a)(1), (2), and (3) and IAEP violated Section 8(b)(1)(A) and (2) of the Act to the extent that they entered into a recognition agreement and applied their existing collective-bargaining agreement to the new employees who were not properly accreted. Contrary to the judge, the Board held that Respondent IAEP Local 1 violated the Act in the same manner as IAEP because they were joint collective-bargaining representatives. No exceptions were filed by AMR and IAEP to the violations found by the judge. [HTML] [PDF]

AMR operates emergency medical service (EMS) trucks nationwide. In February 1997, a series of mergers dating back to 1995 culminated in AMR's absorption of two Massachusetts EMS nonunion companies, Med-Trans Ambulance Co. and Brewster Ambulance Co. AMR had a preexisting collective-bargaining relationship with the Union (IAEP and Local 1). Their most recent collective-bargaining agreement was effective by its terms from July 6, 1996 to July 5, 2000. The contract included a union-security provision and the contractual unit consisted primarily of AMR's paramedics, emergency medical technicians, and wheelchair car drivers in Maine, New Hampshire, Rhode Island, and eastern Massachusetts, including the Worcester area.

After Februrary, AMR integrated the Med-Trans and Brewster operations into its own. Two new, managerially autonomous divisions were formed. Newly constituted Division 12 was coextensive with the geographic scope of the contractual bargaining unit, except for the exclusion of the Worcester area. For business reasons, Worcester was placed in a new Division 13, which also included western Massachusetts, Connecticut, and New York. On July 20, AMR and the Union signed an agreement providing for recognition of the Union as the collective-bargaining representative of the former Med-Trans and Brewster employees who worked within the scope of the contractual bargaining unit, regardless of whether they were assigned to Division 12 or Division 13.

The Board affirmed the judge's findings that the Med-Trans and Brewster employees in Division 12 were properly accreted into the contractual unit. Contrary to the General Counsel, it found that the judge's overall analysis applies the appropriate accretion factors and is consistent with the goal of balancing two competing statutory interests: the right of employees to choose their collective-bargaining representative, and the maintenance of stable collective-bargaining relationships. The Board however clarified two aspects of the judge's analysis.

First, it found that he erred by effectively creating a new bargaining unit rather than relying on the existing unit defined by the parties' collective-bargaining agreement. The former Med-Trans and Brewster employees who work within Division 12 were legitimately accreted into the existing contractual unit based on the level of their community of interest with the unit employees, the Board held. And, those former employees of Med-Trans working in the Worcester area of Division 13 were improperly accreted into the contractual unit because they lacked a sufficient community of interest with the employees in the contractual unit, the vast majority of who worked in Division 12.

Second, the Board noted the judge's accretion analysis did not distinguish between events before and after AMR's July 29 recognition of the Union. It agreed with the General Counsel that the question whether the Med-Trans and Brewster employees constituted an appropriate accretion to the AMR bargaining unit must be determined on the facts that existed on the date of the recognition of the Union.

(Members Liebman, Truesdale and Walsh participated.)

Charges filed by Allen Bryer, Charles Williams, and George Gardiner, Jr., individuals; complaint alleged violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2). Hearing at Boston, May 18-21 and June 24, 1998. Adm. Law Judge Bruce D. Rosenstein issued his decision Oct. 30, 1998.

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Triangle Electric Co. and General Motors Corp. (7-CA-39041, 40075; 335 NLRB No. 82) Hamtramck, MI Aug. 27, 2001. Reversing the administrative law judge, Members Liebman and Truesdale held that Respondent GM requested Respondent Triangle to remove Triangle employee Lucinda Darrah from work she had been performing at GM's Hamtramck, MI plant because of her exercise of protected concerted activities (the distribution and solicitation of the Detroit Sunday Journal, a publication by six striking Detroit newspaper unions), and that Triangle terminated Darrah pursuant to such request, in violation of Section 8(a)(1) of the Act. [HTML] [PDF]

Members Liebman and Truesdale found that the Respondents were aware of the concerted nature of the activity, and there is no dispute that her discharge was, in fact, attributable to that activity. They wrote:

We recognize, as our colleague points out, that a newspaper typically is, in part, a commercial product that can be sold for personal remuneration by a vendor who may, or may not have any personal interest in 'supporting' the newspaper itself. In the present case, however, Darrah engaged in solicitation/distribution activities directed at other employees, in nonwork areas during nonwork time and at her site of employment, of a specialized 'strike' periodical. Although the strike newspaper had a listed price on its cover and Darrah raised money for the strikers, this does not render Darrah akin to a 'newsboy or newsgirl on the street,' as the dissent suggests. Rather, Darrah's activities are essentially no different than the protected activities of any employees who, in a group effort, concertedly distributes or solicits leaflets, circulars, or other group material, and or raises money for the group, at his or her place of employment during nonwork time and in nonwork areas. In these circumstances, we cannot agree with our colleague that the Respondents were unaware of the group nature of Darrah's activities.

Chairman Hurtgen, in dissent, agreed with the judge that these allegations should be dismissed. He noted these facts. Darrah acted alone, her conduct consisted of selling and distributing a commercial newspaper, she sold and distributed the newspaper to employees of employers who were not directly involved in the Detroit newspaper strike, and the Respondents knew only that Darrah was selling a strike newspaper and had no knowledge of her motive in selling them. The Chairman found, as did the judge, that the use of the adjective "strike"' to describe what is essentially a commercial newspaper did not suffice to put Respondent GM on notice that Darrah's sale and distribution of the Sunday Journal was concerted activity and that the General Counsel thus failed to meet his burden of showing that the Respondents knew, or should have known, that Darrah was engaged in concerted activity.

No exceptions were filed to the judge's finding that GM violated Section 8(a)(1) by maintaining unlawfully broad no-solicitation and no-distribution rules.

(Chairman Hurtgen and Members Liebman and Truesdale participated.)

Charges filed by Lucinda Darrah, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Detroit on Aug. 12, 1998. Adm. Law Judge Thomas R. Wilks issued his decision May 11, 1999.

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World SS, Inc. (30-CA-13549, 13622; 335 NLRB No. 95) Pleasant Prairie, WI Sept. 20, 2001. Agreeing with the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) of the Act by informing employee Christine Holloway that it had transferred employees from another facility in order to defeat Teamsters Local 143 in a Board election and that the Respondent violated Section 8(a)(3) and (1) by discharging Holloway because of her union activities. [HTML] [PDF]

Finding merit in the General Counsel's exceptions, the Board reversed the judge and held that the Respondent violated Section 8(a)(3) and (1) by discharging employees John Catalanello and Floyd Matthews for conduct that occurred while they were on unlawful suspension. It agreed with the judge that the General Counsel satisfied his evidentiary burden of establishing that the two employees' union activities were a motivating factor in their discharges and rejected his finding that the Respondent would have discharged Catalanello and Matthews because of their purported disloyalty in performing unloading work and acting as the Respondent's business competitors. The Board found Crystal Linen Service, 274 NLRB 946, 948-949 (1985), and Associated Advertising Specialists, 232 NLRB 50, 54 (1977), cited by the judge in dismissing the 8(a)(3) allegation are inapposite here.

No exceptions were filed to the judge's findings that: (1) Dock Supervisor Arthur Harding is a statutory supervisor; (2) the Respondent violated Section 8(a)(1) by interrogating employees, warning them that they could "leave" if they were unhappy on the job, implying to employees that it would be futile for them to organize the Respondent; and suspending Catalanello and Matthews; and (3) the Respondent, by Harding, did not unlawfully interrogate Matthews by questioning him about wanting to go union, and the Respondent did not violate Section 8(a)(3) and (1) by suspending Catalanello and Matthews.

(Members Liebman, Truesdale, and Walsh participated.)

Charges filed by Teamsters Local 43 and Christine Holloway, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Milwaukee, Dec. 2-3 and 23, 1996. Adm. Law Judge C. Richard Miserendino issued his decision Sept. 21, 1998.

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Can-Am Plumbing, Inc. (32-CA-16097; 335 NLRB No. 93) Pleasanton, CA Sept. 21, 2001. The Board affirmed the administrative law judge's conclusion that the Respondent violated Section 8(a)(1) of the Act by maintaining and prosecuting a state court lawsuit that is preempted by the NLRA against competitor employer L.J. Kruse Company for accepting job targeting program funds from Plumbers Local 324 for work on the Ascend Communications project. [HTML] [PDF]

The Union established the job targeting program to subsidize the wage rates paid by targeted employers so they could bid on projects against nonunion contractors and thereby expand job opportunities for employees working under the Union's collective-bargaining agreements. Kruse is a plumbing and heating contractor whose plumbers, pipefitters, apprentices, and welders are represented by the Union. In May 1996, Kruse bid for work on the Ascend Communications Project and the Respondent, a nonunion contractor, was one of its competitors. It was not a public works project and was not governed by Davis-Bacon prevailing wage regulations. Ascend awarded the work to Kruse, which requested and received job targeting funds.

The Board decided the holding in Kingston Constructors, 332 NLRB No. 161 (2000), that unions may not lawfully exact dues from employees working on Davis-Bacon projects to support job targeting programs, does not require a different result. The Ascend Communications project is not a Davis-Bacon project and there was no evidence that Kruse has ever worked on such a project. At most only 2 to 3 percent of the funds collected for the Union's job targeting program came from Federal or State prevailing wage jobs, and the moneys are not directly traceable to Kruse. Under Board precedent that was specifically reaffirmed in Kingston Constructors, the Board found that the job targeting program in this case is thus protected by Section 7 of the Act. Id., slip op at 5, citing Manno Electric, 321 NLRB 278, 298 (1996), enfd. mem. 127 F.3d 34 (5th Cir. 1997); Associated Builders & Contractors, 331 NLRB No. 5, slip op. at l fn. 1 (2000), vacated in part not relevant here pursuant to a settlement 333 NLRB No. 116 (2001). The Board wrote:

Consequently, the Respondent's lawsuit, which broadly attacks the entire job targeting program and Kruse's participation in it as unlawful under State law is preempted by the Act. Manno Electric, supra, Associated Builders, supra.

A preempted lawsuit 'enjoys no special protection under Bill Johnson's' and can be condemned as an unfair labor practice if it is unlawful under traditional NLRA principles. Under settled law, a violation of Section 8(a)(1) is established if it is shown that the employer's conduct has a tendency to interfere with the free exercise of a Section 7 right. Here, it is clear that the Respondent's lawsuit tends to interfere with (indeed it is designed to stop) conduct that is protected by Section 7 (the job targeting program).

(Members Liebman, Truesdale, and Walsh participated.)

Charge filed by Plumbers Local 342; complaint alleged violation of Section 8(a)(1). Hearing at Oakland on April 16, 1998. Adm. Law Judge Mary Miller Cracraft issued her decision Jan. 29, 1999.

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Adair Express L.L.C. (31-CA-24291, 24484; 335 NLRB No. 96) Van Nuys, CA Sept. 21, 2001. The Board agreed with the administrative law judge that the Respondent is a Burns successor to Assured Transportation & Delivery that violated Section 8(a)(5) and (1) of the Act by failing to recognize and bargain with Teamsters Local 396 as the exclusive collective-bargaining representative of its drivers and setting their initial terms and conditions of employment without bargaining with the Union; and violated Section 8(a)(3) and (1) by failing and refusing to hire applicants because of their union affiliation. The Respondent did not file any exceptions. The Board, finding merit in the General Counsel exceptions, modified the judge's recommended Order and the notice for posting in certain respects. It found without merit the Charging Party's exception to the absence of an affirmative bargaining order as the judge's recommended Order includes one. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 396; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Los Angeles, Aug. 21-23 and Sept. 15, 2000. Adm. Law Judge Karl H. Buschmann issued his decision June 18, 2001.

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Marion Hospital Corporation d/b/a Marion Memorial Hospital (14-CA-25287, 25341; 335 NLRB No. 80) Marion, IL Aug. 27, 2001. Members Liebman, Truesdale, and Walsh agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Laborers Local 508 on September 11, 1998, withdrawing recognition from the Union on October 28, 1998, and making unilateral changes in employee terms and conditions of employment. The majority entered an affirmative bargaining order, saying it is the appropriate remedy for the Respondent's unlawful withdrawal of recognition from the Union. Chairman Hurtgen, dissenting in part, concluded that the withdrawal of recognition on October 28 was lawful. [HTML] [PDF]

On October 20, employee Joy Woods, the Petitioner in Case 14-RD-1617, gave Respondent a letter stating in pertinent part: "We have 50% plus 1 signatures and we no longer wish to be represented by Laborer's Union Local 508." Attached were petitions signed by 82 employees bearing the language, "We, the undersigned employees of [the Respondent] no longer wish to be represented by [the Union] or any other union and hereby request decertification of this union." Based on this letter and the attached petitions, on October 28 the Respondent's chief executive officer told employees that the Respondent would no longer recognize the Union, would deal directly with them, and would grant a wage increase and begin conducting employee evaluations that would lead to merit increases. In November, the Respondent unilaterally implemented certain changes to the employees' terms and conditions of employment.

Applying Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), the majority found that the Respondent did not have a reasonable, good-faith uncertainty about the Union's majority status on September 11 and that the Respondent's asserted objective considerations, either individually or in combination, do not establish reasonable uncertainty. Turning to the Respondent's withdrawal of recognition from the Union on October 28, the majority disagreed with the judge's finding that the signatures on the antiunion petitions the Respondent received on October 20 were tainted by the Respondent's September 11 unlawful refusal to bargain. In this respect, the majority noted that only employee signatures dated after September 11 are presumptively tainted by the unlawful refusal to bargain and no such presumption of unlawful taint attaches to those employee signatures dated before September 11. See Lee Lumber & Building Material Corp., 322 NLRB 175, 178 (1996), affd. in relevant part and remanded 117 F.3d 1454 (D.C. Cir. 1997), decision on remand 334 NLRB No. 62 (2001).

The majority then considered whether, under Allentown Mack, the Respondent established a reasonable, good-faith uncertainty about the Union's majority status. It found that the bargaining unit consisted of 157 employees on October 28, but only 69 employee signatures on the antiunion petitions can be counted or l0 short of a majority, an insufficient showing to establish a good-faith reasonable uncertainty as to the Union's continuing majority status. See Levitz Furniture Co., 333 NLRB No. 105 (2001). The majority wrote: "Aside from the petitions, the record contains no other evidence that might establish uncertainty as to the Union's continuing majority status. Furthermore, even if the Respondent had presented additional evidence of employee disaffection arising at the time it received the antiunion petitions, the Lee Lumber presumption of unlawful taint would apply. Because the presumption has not been rebutted, any such evidence would not be probative of a good-faith reasonable uncertainty."

Chairman Hurtgen, concluding the Respondent acted lawfully when it withdrew recognition on October 28, found the 69 signatures on the decertification petition, coupled with employee resignations from union membership, reasonably created "uncertainty" in the Respondent's mind as to whether the Union had the support of a majority of the employees. The Chairman noted that there were 157 employees in the unit, and 82 signatures on the decertification petition. Further, 7 signators were no longer employees on October 28, and 6 had signed after the September 11 refusal to bargain. He assumed arguendo that these signatures were tainted. That leaves 69 signatures. Sixty-one employees resigned from the Union (only 10 occurred after September 11). Six of the 61 resignees were in addition to the decertification signers (only one occurred after September 11). Although Chairman Hurtgen agrees with his colleagues who cited the well-settled proposition that "non-membership in a union does not establish that those employees do no want the Union to be their representative," he believes that resignations from membership are a relevant factor to be considered.

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

Charges filed by Laborers Local 508; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Marion on January 26 and 27, 1999. Adm. Law Judge Lawrence W. Cullen issued his decision April 29, 1999.

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Staunton Fuel & Material, Inc., and Marilyn Mengelkamp d/b/a Central Illinois Construction (14-CA-24132, et al.; 335 NLRB No. 59) Staunton, IL Aug. 27, 2001. The Board declined to adopt the administrative law judge's finding that the Respondent unlawfully refused to bargain with the Union upon the expiration on July 31, 1996 of a prehire agreement. While the judge found that a Section 9(a) relationship was established, the Board held the language in the 1993-1996 contract did not state that the Respondent's recognition was based on a contemporaneous showing, or offer by the Union to show, that the Union had majority support. [HTML] [PDF]

Addressing the question of how a union in the construction industry can acquire the status of majority bargaining representative under Section 9(a), the Board concluded:

We hold that a written agreement will establish a Section 9(a) relationship if its language unequivocally indicates that the union requested recognition as majority representative, the employer recognized the union as majority representative, and the employer's recognition was based on the union's having shown, or having offered to show, an evidentiary basis of its majority support.

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

Charges filed by Operating Engineers Local 520; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing at St. Louis, Oct. 14-17, 1997. Adm. Law Judge Nancy M. Sherman issued her decision Dec. 17, 1998.

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Ormet Aluminum Mill Products Corp. and Ormet Primary Aluminum Corp. (8-CA-28811, 30299; 335 NLRB No. 65) Hannibal, OH Aug. 27, 2001. The Board adopted the administrative law judge's findings that Ormet Aluminum Mill Products Corp. (Ormet Mill) and Ormet Primary Aluminum Products Corp. (Ormet Primary) constitute a single employer (the Respondent) and that the Respondent violated Section 8(a)(5) and (1) of the Act through Ormet Mill's failure to furnish certain information to Steelworkers Local 5760 and the Steelworkers International Union. However, Chairman Hurtgen dissented from Members Truesdale and Walsh in adopting the judge's further finding that the Respondent also violated Section 8(a)(5) and (1) through Ormet Primary's failure to furnish Steelworkers Local 5724 and the Steelworkers International Union (the Union) information the Union requested in its August 28, 1998 letter and attached questionnaires relating to certain contracting out notifications. He said "the information sought by the Union amounts to a classic request for pretrial discovery. The Union is essentially asking the Respondent to set forth in writing its claims and the evidence for them." [HTML] [PDF]

In finding the Respondent's failure to furnish the information requested by the Union was unlawful, however, the majority stated:

The simple fact is that the Union made the information requests at the third step of the grievance procedure, and obviously, before the grievances had been denied and referred to arbitration. Thus, since the grievances were not pending arbitration when the Union made its information requests, it cannot be said that the Union is, in effect, seeking pretrial discovery through them--and our dissenting colleague's labeling the information requests as 'interrogatories' does not make it otherwise. Simply put, the Respondent was obligated to furnish the requested information to the Union at the third step of the grievance procedure and, as the judge found, it violated Section 8(a)(5) by refusing to provide the requested information.

(Chairman Hurtgen and Members Truesdale and Walsh participated.)

Charges filed by Steelworkers Local 5724; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Bellaire, April 21 and 22, 1999. Adm. Law Judge Eric M. Fine issued his decision June 24, 1999.

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Beverly Health and Rehabilitation Services, Inc., et al. (6-CA-27873, et al.; 335 NLRB No. 54) Fort Smith, AR Aug. 27, 2001. The Board majority of Members Liebman and Walsh, affirming the administrative law judge's supplemental decision of Nov. 30, 1999, held that the Respondent committed numerous unfair labor practices. As a remedy, the majority modified the judge's recommended corporatewide order to require the posting of two versions of a notice to employees--one at each of the 20 Pennsylvania nursing homes involved in this proceeding and at those of the Respondent's separate offices which oversee those facilities; and a second to be posted at each of the Respondent's other facilities and offices nationwide. Chairman Hurtgen dissented. [HTML] [PDF]

This Respondent has been involved in litigation in various cases before the Board for many years. The Board's decisions include Beverly California Corp. (Beverly III), 326 NLRB 232 (1998), enfd. in part and remanded 227 F.3d 817 (7th Cir. 2000); Beverly California Corp. (Beverly II), 326 NLRB 153 (1998), enfd. 227 F.3d 817 (7th Cir. 2000); Beverly Enterprises (Beverly I), 310 NLRB 222 (1993), enf. denied in relevant part sub nom. On May 1, 1997, the judge issued an order bifurcating this proceeding and deferring litigation of remedial issues pending his determination of whether, and to what extent, the Respondent committed the unfair labor practices alleged in the General Counsel's complaint. On Nov. 26, 1997, the judge issued his initial decision, finding that the Resp