NLRB Decisions - 2002 January-June

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Pepsi-Cola General Bottlers, Inc. (9-CA-38197; 337 NLRB No. 109) Cincinnati, OH June 25, 2002. The Board adopted the administrative law judge's dismissal of the complaint on the basis that it was time-barred and held that the Respondent did not violate Section 8(a)(1) and (3) of the Act by refusing to hire or consider for hire, Steven C. Saunders. Respondent argued that it made the decision not to hire Saunders in June 2000 and communicated that decision to him on June 22, more than 6 months before the charge was filed on January 11, 2001. The Board deemed it unnecessary to pass on the judge's alternative findings regarding the substantive allegations of the complaint and to consider whether the judge erred by denying admission of the corroborative evidence of Human Resource Manager Handley's contemporaneous notes of a conversation he had with Saunders.[HTML] [PDF]

Charge filed by Steven C. Saunders, an Individual; complaint alleged violation Section 8(a)(1) and (3). Hearing in Cincinnati, OH on Aug. 29, 2001. Adm. Law Judge Bruce D. Rosenstein issued his decision Oct. 29, 2001.

Spartan Aviation Industries, Inc. (17-RC-12041; 337 NLRB No. 112) Tulsa, OK June 26, 2002. The Board asserted jurisdiction over Spartan Aviation Industries, which is engaged in the operation of a flight school in Tulsa, Oklahoma, and remanded the proceeding to the Regional Director for resolution of the bargaining unit issues. The UAW is seeking to represent all nonsupervisory flight school employees employed by Spartan.[HTML] [PDF]

In addition to actively recruiting students throughout the United States, the flight school has contracts with several foreign airlines to provide "ab initio," or initial, flight training for airline employees. Spartan contended that the training it provides and its relationship with the airlines bring it within the scope of the Railway Labor Act (RLA) rather than the NLRA and that the case should be referred to the National Mediation Board (NMB).

The Board did not submit the case to the NMB for an advisory opinion before determining whether to assert jurisdiction because the NMB has previously declined jurisdiction in a case that raised a jurisdictional claim in a similar factual situation. Under a two-part test for determining whether a noncarrier is subject to the RLA, the NMB first determines whether the nature of the work performed by an employer is the type of work traditionally performed by employees of rail or air carriers. Second, the NMB determines whether the employer is directly or indirectly owned or controlled by a common carrier. Both parts must be satisfied to establish that the employer is subject to the RLA. System One Corp, 322 NLRB 732 (1996).

The Board concluded that Spartan did not satisfy the first of the NMB's requirements and is not subject to the RLA, citing Airline Training Center-Arizona, 19 NMB 330 (1992) (ATCA). In ATCA, which involved a flight school owned by a foreign airline, the NMB held that flight training for an initial commercial license is not work traditionally performed by airline employees. The flight school in ATCA, like Spartan, provided ab initio training for various foreign airlines. The NMB found that although airlines typically provide training on a specific type of aircraft or necessary recurrent training, they do not provide the type of training that qualified individuals for an initial license. In its decision, the Board found that Spartan, which provides only ab initio training and is privately owned, does not perform work traditionally performed by airline employees and therefore, that the Board has jurisdiction under Section 2(2) of the Act.

AT&T Corp. (28-CA-14967; 337 NLRB No. 105) Tucson, AZ June 24, 2002. The Board dismissed the complaint, agreeing with the administrative law judge that the Respondent did not violate Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Communications Workers (CWA) or its designee, Charging Party CWA Local 7026, or by failing to provide CWA or Local 7026 with information necessary for purposes of collective bargaining.[HTML] [PDF]

This case involves AT&T's decision in late 1997 to close its Toll Free Directory Assistance (TFDA) facility in Tucson, Arizona, lay off bargaining unit employees, and reassign the work to its other seven TFDA facilities nationwide. On January 5, 1998, AT&T formally notified CWA of its decision and, on January 22, Local 7026 President Michael McGrath and Robert Stuart, AT&T's division manager for TFDA, discussed the decision by teleconference call. During their conversation, McGrath requested that Stuart provide certain information on which AT&T based its decision to close the Tucson facility. The judge found that Stuart orally provided McGrath with "all the information he requested." McGrath told Stuart he disagreed with the decision and would take the matter up with Stuart's superiors at AT&T. Following the conference call, McGrath sought advice from CWA International Vice President Irvine on how to contest the Tucson closure, but did not take the matter up with any other AT&T officials.

The judge found that the Respondent fulfilled its obligation to provide information regarding its plan for Tucson to the CWA or its designee and that Local 7026's inaction in seeking bargaining over AT&T's plan for Tucson prior to its implementation led to the absence of bargaining. He found that Article 24 (Force Adjustment-Layoff, Part-timing, and Recall) of the parties' collective-bargaining agreement, established a contractually based right in AT&T to unilaterally declare prospective layoffs without consulting with CWA, and that the responsibility then shifted to CWA to propose, if it so chose, an alternative to AT&T's layoff plans within 45 days of the announced plan. McGrath never requested article 24 bargaining, the judge said, and even if McGrath was engaged in article 24 bargaining during the conference call, he "dropped the ball" by failing to follow up on his expressed intention to pursue the matter with higher-level officials. The judge found Stuart satisfied McGrath's request for information during the conference call, and that absent a renewed and more specific request, AT&T was not obligated to provide additional information.

The Board pointed out, in addition to the judge's reasoning, that the January 26, 1998 unfair labor practice charge was insufficient to put AT&T on notice that CWA demanded further information, because the charge was silent with respect to any refusal to furnish information until its amendment some 3 months later. In considering whether AT&T failed to bargain with the Union over the Tucson decision, the Board found it unnecessary to decide whether the Respondent had a duty to bargain over its decision to close the Tucson facility, lay off bargaining unit employees, and reassign their work to other unit employees. Nor did it decide whether any such bargaining obligation arose from the Act, as the General Counsel argued, or solely from article 24, as AT&T contended. Instead, the Board found that McGrath's entire course of conduct demonstrated a lack of due diligence in pursuing bargaining about the Tucson decision following the January 22 conference call.

Chairman Hurtgen would apply, as an additional basis for dismissing the failure-to-bargain allegation, the "contract coverage" analysis as set forth by the D.C. Circuit in NLRB v. Postal Service, 8 F.3d 832 (1993). Member Bartlett noted that, in evaluating whether a contract clause waives the union's right to bargain, he has not previously addressed whether to apply the D.C. Circuit's "contract coverage" analysis, rather than the "clear and unmistakable waiver" standard applied under current Board precedent. He also noted that the issue is currently pending before the Board in other cases. As it is not necessary to reach the issue in this case and in order to avoid further delay in issuing the Board's decision, Member Bartlett deferred judgment on the issue to another case.

Charge filed by CWA Local 7026; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Phoenix, Sept. 1-3, 1998, and March 23-24 and June 22, 1999. Adm. Law Judge Gerald A. Wacknov issued his decision June 24, 2002.

Raley's (20-CA-24837, 25166; 337 NLRB No. 116) Grass Valley and Yuba City, CA June 28, 2002. The Board adopted the administrative law judge's recommended order and dismissed the complaint allegation that the Respondent refused to recognize and bargain with Food and Commercial Workers Local 588 as the majority representative at the Respondent's stores in Grass Valley and Yuba City, CA. The Union, in its exceptions, contended that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to submit to a card check by a third party neutral.[HTML] [PDF]

The Board rejected the Union's position, noting the complaint does not allege that the Respondent unlawfully failed to submit to a neutral card check and the General Counsel has from the outset disclaimed that the case was litigated on any such theory. The General Counsel's theory of the case is controlling, and a charging party cannot enlarge upon or change that theory, the Board said, citing Zurn/N.E.P.C.O., 329 NLRB 484 (1999). See Paul Mueller Co., 332 NLRB No. 145 (2000) (reversing the judge on due process grounds where the judge found a violation on a theory effectively disclaimed by counsel for the General Counsel.) In this decision, the Board found that the Union has presented no persuasive evidence establishing the existence of an agreement or past practice of submitting the issue of majority status to a third party neutral and therefore, affirmed the judge's denial of the Union's motion to compel a neutral card check.

In the earlier decision reported at 336 NLRB No. 30 (2001), Chairman Hurtgen dissenting, the Board found that: (1) section 1.1 of the parties' bargaining agreement waives the Respondent's right to insist on a Board-conducted election; (2) the two disputed stores (Grass Valley and Yuba City) are within the scope of Section 1.1; and (3) the Respondent was therefore obligated to recognize Local 588 on its demonstration of majority support at those stores. The case was remanded to the judge to "allow the parties to litigate the Union's claim of an authorization card majority at these two stores and any other remaining issues relevant to Respondent's obligation to recognize Local 588."

In Chairman Hurtgen's view, the Respondent did not waive its right to a Board conducted-election and, thus, a card check of any kind was inappropriate. Accepting the majority view as the law of the case, he agreed that the complaint herein should be dismissed. Member Cowen, who did not participate in the prior decision, expressed no view as to that decision.

Charges filed by Food & Commercial Workers Local 588; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Francisco on Feb. 19, 2002. Adm. Law Judge Jay R. Pollack issued his supplemental decision March 6, 2002.

Bashas', Inc. (28-RC-5973; 337 NLRB No. 113) Chandler, AZ June 26, 2002. The Board held, contrary to the Regional Director, that the petitioned-for multifacility unit of meat department and wall-deli department employees in the Employer's 17 "Food City" stores located in Maricopa County, Arizona is not an appropriate unit for bargaining. The Regional Director relied on the fact that all 17 stores are located in Maricopa County. The petitioning union is Food and Commercial Workers Local 99.[HTML] [PDF]

The Employer, headquartered in Chandler, Arizona, operates 101 grocery stores, primarily in the State of Arizona, including the 17 Maricopa County stores. The grocery stores are organized into separate administrative divisions based largely on marketing format. Twenty-two stores currently operate under the Food City format. Four stores, located in southeastern Arizona, operate as "Bashas' Mercado" and will soon be added to the Food City format. These 26 stores comprise the Food City division, which is headed by a single vice-president. Two stores operate in Pinal County, which is adjacent to Maricopa County: the Casa Grande store, which the Petitioner does not seek to represent, and the Apache Junction store. South of Pinal County is Pima County, the location of the Tucson store. The remaining two Food City stores are located in Mohave County, in northwestern Arizona, along the California border, in the towns of Bullhead City and Lake Havasu.

In reaching its conclusion, the Board found that the evidence failed to establish that the petitioned-for Maricopa County unit employees share a sufficient community of interest based solely on the fact that they are in the same county. It noted that the 17-store unit found appropriate does not conform to any administrative function or grouping, that the stores share no common supervision, that there is no substantial functional integration or significant interchange among the 17 stores, and that the stores are not a geographically coherent group in light of the exclusion of the nearby Casa Grande store. The Board found it unnecessary to decide the appropriate unit or units, since the Petitioner has not indicated a willingness to proceed to an election in a unit different than the one found appropriate by the Regional Director. The case was remanded to the Regional Director for further appropriate action.

On October 5, 2001, the Board denied the Employer's request for review of the Regional Director's findings that the single store units in Apache Junction (Case 28-RC-5974) and Tucson (Case 28-RC-5975) are appropriate and that the meat and wall-deli departments constitute an appropriate unit.

MTR Sheet Metal, Inc. (19-CA-27617; 337 NLRB No. 110) Kent, WA June 28, 2002. The Board adopted, in the absence of exceptions, the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging and transferring employees to lower paying jobs, and giving them written warnings for excused absences, all because of their union or other protected concerted activity; and Section 8(a)(1) by threatening employees with business closure, discharge or transfer to lower paying jobs because of their activities for Sheet Metal Workers Local 66, soliciting employees to engage in surveillance of other employees' union activity, creating the impression that employees' union activity is under surveillance, and telling employees not to wear union T-shirts.[HTML] [PDF]

The Board granted the General Counsel's exceptions concerning the judge's inadvertent omission of expunction language from the recommended Order and notice and corrected the order and notice accordingly. It also corrected the judge's omission of reinstatement language from the affirmative portion of his recommended Order and notice with respect to the unlawful transfers of Saul Heikkila and Kevin Moltz.

Charges filed by Sheet Metal Workers Local 66; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Seattle on Feb. 12, 2002. Adm. Law Judge James L. Rose issued his decision March 28, 2002.

Croft Metals, Inc. (15-RC-8393; 337 NLRB No. 106) McComb, MS June 21, 2002. The Board announced its new requirement that Regional Directors provide parties in a representation case with a notice of a hearing not less than 5 working days before the hearing date, absent unusual circumstances or clear waiver by the parties, saying: "By providing parties with at least 5 working days' notice, we make certain that parties to representation cases avoid the Hobson's choice of either proceeding unprepared or on short notice or refusing to proceed at all." The required period of time excludes intermediate Saturdays, Sundays, and holidays because it is less than 7 days. Section 102.111(a) of the Board's Rules and Regulations. The NLRB Casehandling Manual suggests that Regional Directors provide parties with 5 days' notice of a hearing, in the absence of "unusual circumstances," but the Board has never explicitly set a minimum notice requirement in representation cases. [HTML] [PDF]

In this case, the Iron Workers filed a petition on April 5, 2002, seeking to represent production and maintenance employees at the Employer's Magnolia facility in McComb, Mississippi. On Wednesday, April 10, the Employer received notice from the Regional Office that a hearing would begin on Monday, April 15. Although the Employer objected to the inadequacy of the notice at the beginning of the hearing, it presented evidence supporting its argument that certain employees should be excluded from the unit found appropriate. Prior to the hearing's conclusion, the Employer requested that the hearing remain open so that it might present additional evidence. It also made an offer of proof outlining that evidence. The hearing officer denied the request and closed the hearing. The Acting Regional Director affirmed the hearing officer's ruling, finding that the Employer was provided adequate notice of the hearing.

The Board disagreed, concluding that the notice was insufficient, in the absence of unusual circumstances or waiver by the parties, because the Employer was given only 3 days notice of the hearing, excluding the intervening Saturday and Sunday. The Board granted the Employer's request for review of the Acting Director's decision and direction of election solely with respect to the adequacy of the notice of hearing provided to the Employer and remanded the matter to the Acting Regional Director to reopen the hearing to receive additional evidence on the other issues raised by the Employer. The Employer also argued that the Acting Regional Director erred by (1) finding that its leadmen and load supervisor were not statutory supervisors, (2) including material inventory clerks in the petitioned-for production and maintenance unit as "plant clericals," (3) voting three other clerical employees under challenge, (4) including the interplant driver in the unit found appropriate, and (5) failing to find that Carpenters Local 2280 had not been given proper notice of the hearing. The Board did not pass on these issues at this time in view of its remand.

Americorp (22-CA-24532; 337 NLRB No. 99) Parsippany, NJ June 10, 2002. The Board agreed with the administrative law judge's finding that the Respondent discharged striking employees in violation of Section 8(a)(3) and (1) of the Act. The Respondent excepted to the judge's conclusion that the striking employees were unlawfully discharged based on two points -- both rejected by the Board: (1) that the Respondent did not have knowledge of any picketing on April 9, 2001, when it made the decision to discharge the employees, either because the picketing did not occur or, if it occurred, the Respondent did not see it; and (2) that prior to April 9 the Respondent had enforced its "No Show/No Work" policy, which provides if an employee does not report for work, the employee is terminated. [HTML] [PDF]

No exceptions were filed to the judge's findings that (1) the economic strike converted into an unfair labor practice strike when the Respondent discharged the striking employees; and (2) the Respondent violated Section 8(a)(3) and (1) by refusing to reinstate the strikers on their making an unconditional offer to return to work.

Charge filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Newark, Aug. 6, 8-9 and Sept. 5-6, 2001. Adm. Law Judge D. Barry Morris issued his decision Jan. 4, 2002.

Graphic Communications Workers Local 1-M (Bang Printing, Inc.) (18-CB-4076-1; 337 NLRB No. 100) Brainerd, MN June 11, 2002. The administrative law judge found, and the Board agreed, that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by reporting the possibility of sexual harassment by Timothy Kelm to his Employer in retaliation for his dissident activities. Citing General Motors Corp., 272 NLRB 705, 711 (1984), the Board affirmed the judge's finding that Union Vice President Robert Stanton's failure to investigate Kelm's conduct, in the absence of any basis to suspect that Kelm had recently engaged in misconduct, is a factor indicating the Union's unlawful motivation. [HTML] [PDF]

Given its finding that the report was given for retaliatory reasons, the Board declined to rule on whether a union would otherwise have a duty under the NLRA to investigate allegations that a represented employee engaged in sexual harassment before reporting such allegations to an employer or under Title VII of the Civil Rights Act of 1964 to immediately report, i.e., report without investigation, such allegations to the employer.

Charge filed by Timothy Kelm, an Individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Brainerd on April 25, 2001. Adm. Law Judge William J. Pannier III issued his decision July 31, 2001.

Matanuska Electric Association, Inc. (19-CA-26525; 337 NLRB No. 101) Anchorage, AK June 13, 2002. The Board adopted the administrative law judge's recommendations and dismissed the complaint allegation that the Respondent violated Section 8(a)(5) of the Act by bargaining in bad faith, declaring an impasse in negotiations, and implementing its April 29 proposal on June 3, 1999. The judge wrote: "Though the question of impasse here is difficult, . . . I conclude that the Union's bargaining tactics made reaching an agreement a virtual impossibility. I conclude that the Respondent had no reason to believe that the Union would change tactics in the foreseeable future and therefore was permitted to declare impasse and implement its final offer." [HTML] [PDF]

The Respondent employs about 120 employees in four bargaining units, all of which are represented by the Union. This case concerns only the "outside unit" (30 linemen/wiremen, meter readers, mechanics, and others). The last agreement covering the outside unit expired on December 31, 1998, but it was extended by agreement during negotiations for a successor until the Respondent implemented its final proposal. The judge found that although the parties reached tentative agreement on about 50 less important clauses, they were at an impasse when negotiations concluded in May because they could not agree on two critical issues -- the Respondent's desire to change its ability to subcontract work and to eliminate all past practices. The Respondent argued that the existing language gave the Union a virtual veto on its ability to subcontract. The Union consistently and adamantly rejected the Respondent's proposal and instead proposed even more restrictive language. The Respondent declared an impasse on April 12.

Charge filed by Electrical Workers (IBEW) Local 1547; complaint alleged violation of Section 8(a)(5). Hearing in Anchorage, May 22-24, 2001. Adm. Law Judge James L. Rose issued his decision Aug. 29, 2001.

Tweddle Litho, Inc. (7-UC-552; 337 NLRB No. 102) Clinton Township, MI June 13, 2002. Chairman Hurtgen and Member Bartlett granted the Employer-Petitioner's request for review of the Regional Director's decision deferring this case to arbitration on the unit clarification petition, and remanded the case to the Regional Director for hearing on the issues involved. Member Liebman dissented. [HTML] [PDF]

The Employer decided to do the packaging, labeling and shipping of books itself when the company that previously did the work raised its price. The Employer leased a nearby facility and hired 20 permanent and some temporary employees. Subsequently, the Union (Graphic Communications Workers) filed a grievance, claiming that the employees at the new facility were doing bargaining unit work and that the Employer "failed and refused to treat new employees performing work covered by its current collective-bargaining agreement with the Union as being part of the bargaining unit . . . ." The Employer denied the grievance and filed the instant petition seeking to clarify the existing bargaining unit to exclude the employees at the new facility.

Chairman Hurtgen and Member Bartlett, citing Williams Transportation Co., 233 NLRB 837 (1977), and Ziegler, 333 NLRB No. 114 (2001), agreed with the Employer that the issue posed by the grievance is whether the new employees are to be accreted to the contractual bargaining unit or added because they perform the same functions that historically have been performed by unit employees-which is a representation issue for Board determination. They saw no need to arbitrate.

Contrary to her colleagues, Member Liebman, in dissent, stated that deferring to arbitration, at least initially, would be the better course here. She said that a question of contract interpretation is posed, i.e., whether the work performed by newly-hired employees is covered by the Employer's collective- bargaining agreement with the Union. Member Liebman pointed out that resolving that issue may lead to representation-related questions, which under current law are matters for the Board, but it is not inevitable since the parties may reach an accommodation. Accordingly, at this stage, she would allow the parties' agreed-upon grievance and arbitration procedure to operate.

Tracker Marine, L.L.C. (17-CA-20699-1, 20699-2; 337 NLRB No. 94) Lebanon, MO June 6, 2002. Agreeing with the administrative law judge, the Board held that the credited evidence did not establish that the Respondent violated Section 8(a)(3) and (1) of the Act, as alleged, and dismissed the complaint. Specifically, the complaint alleged that the Respondent unlawfully suspended Delbert Wayne Hanks, Jr., issued written warnings to and discharged Hanks and Robert Mason because of their activities for Teamsters Local 245; and unlawfully told employees that the Respondent would shut down the transportation department and use all contract drivers if employees chose the Union as their representative, and that their union activities reflected negatively on their employment with the Respondent. [HTML] [PDF]

Charges filed by Delbert Wayne Hanks, Jr. and Robert Mason, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Lebanon, March 20-22, 2001. Adm. Law Judge Keltner W. Locke issued his decision May 4, 2001.

The Park Associates, Inc., d/b/a Hill Park Health Care Center (3-CA-20898, et al.; 337 NLRB No. 95) Syracuse, NY June 5, 2002. Citing Caterpillar, Inc., 332 NLRB No. 101 (2000), the Associate Executive Secretary, by direction of the Board, granted the Charging Parties', the Respondent's, and counsel for the General Counsel's joint motion to vacate decision and order to remand based on the non-Board settlement agreement of this matter. The prior order reported at 334 NLRB No. 55 was vacated and the case remanded to the Regional Director for further appropriate action. [HTML] [PDF]

Brown & Root Industrial Services (15-CA-14814; 337 NLRB No. 96) Port Hudson, LA June 4, 2002. The Board adopted the administrative law judge's recommendation to dismiss the complaint allegations that the Respondent violated Section 8(a) (3) and (1) of the Act by refusing to consider or hire various named individuals for work at its Port Hudson and Geismar, Louisiana, jobsites because of their union affiliation or activities. [HTML] [PDF]

The Board upheld the judge's finding that the General Counsel failed to show a nexus between the Respondent's hiring decisions at issue and certain statements made by Robert Swanson, a supervisory foreman. The Board said Swanson's statements do not support an inference that the Respondent's hiring decisions regarding the alleged discriminatees were motivated by union animus. Brand Mid-Atlantic, Inc., 304 NLRB 853 (1991); M.A.N.Truck & Bus Corp., 272 NLRB 1279, 1297 (1984). Having found no nexus between Swanson's statements and the Respondent's alleged unlawful failures to consider or hire, the Board found it unnecessary to decide whether those statements expressed union animus. It did not rely on the judge's characterization of the distinction between "subjective criteria" and "objective criteria," or on his use of those terms, with respect to the General Counsel's and the Respondent's respective burdens of proof, set forth in FES (A Division of Thermo Power), 331 NLRB No. 20 (2000).

Charge filed by Electrical Workers (IBEW) Local 995; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Baton Rouge on various dates in May, Sept., and Oct. 1999. Adm. Law Judge Philip P. McLeod issued his decision June 28, 2000.

Operating Engineers Local 150 (United Drilling, Inc.) (13- CD-623; 337 NLRB No. 97) Hoffman Estates, IL June 6, 2002. The Board in this Section 10(k) proceeding decided that United Drilling's employees represented by Elevator Constructors Local 2 rather than those represented by Operating Engineers Local 150 are entitled to perform the drilling of the cylinder well for a hydraulic elevator at the Marriott Hotel jobsite in Hoffman Estates, Illinois. In making its award, the Board relied on the factors of employer preference, past practice and assignment, and economy and efficiency of operations. [HTML] [PDF]

Lange and Perkins, LLC d/b/a The Daily Grind (36-RC-6113; 337 NLRB No. 98) Portland, OR June 7, 2002. The Board adopted the Regional Director's findings that Aaron Allen is an eligible voter. Members Liebman and Bartlett, with Chairman Hurtgen dissenting, affirmed the Regional Director's dismissal of the Employer's evidence in support of its election objections because it was not timely filed. The majority directed that Allen's ballot be opened and counted and that a revised tally of ballots and the appropriate certification be issued. The election of February 6, 2002 resulted in 14 for and 14 against, the Petitioner (Industrial Workers Local 660), with 1 determinative challenged ballot. [HTML] [PDF]

Although the objections were timely received on February 13, the supporting evidence (due by close of business February 20) was not received until February 22. The Employer asserted that its evidence was ready to be hand-delivered to the Board office on February 20, but it mailed the evidence instead because it was told or led to believe either through a voice mail message or a live telephone conversation with a Board agent that it would be permissible to do so. Members Liebman and Bartlett deemed that this vague and uncertain statement was insufficient to warrant further consideration, stating: "[E]ven if we were to consider the Employer's objections as raising the issue of misrepresentations by Board agents, we reject the notion that such an unsupported allegation is sufficient, by itself, to trigger an administrative investigation. The Employer must do more than simply raise the specter of Board agent misconduct to fulfill its obligation to submit timely supporting evidence."

Contrary to his colleagues, Chairman Hurtgen found that the Employer supported its objections with sufficient evidence and that the evidence was timely filed. He said the Employer's affidavit, secured from an employee, supports the proposition that two Board agents misinformed employee Allen about the Board's election procedure. The Chairman found the Region's rejection of the evidence on grounds of timeliness was improper and that it is also improper to reject evidence and then claim insufficiency of evidence. He wrote: "In sum, the evidence from the two Board agents was within the province of the Board. The evidence from the employee was submitted pursuant to the instruction of the officer in charge. Accordingly, there is no basis for taking the Draconian step of entering a default judgment against the Employer."

Yellow Freight System, Inc. (26-CA-19502; 337 NLRB No. 87)Memphis, TN May 28, 2002. The Board, in agreement with the administrative law judge, dismissed the complaint allegations that the Respondent took disciplinary action against Kim Burditt because he and another employee engaged in a concerted refusal to work because they reasonably believed that working conditions were unsafe. [HTML] [PDF]

The Board adopted the judge's finding that deferral to an arbitration panel's award is warranted, concluding that the award is susceptible to an interpretation consistent with the Act and satisfies the standards for deferral set forth in Olin Corp., 268 NLRB 573 (1984), and Spielberg Mfg. Co., 112 NLRB 1080 (1955). It found that the arbitration panel determined that Burditt breached established safety procedures on August 17, 1999, by failing to notify supervision promptly of a potential chemical spill and by otherwise failing to follow established procedures pertaining to a potential hazard.

The Board found it unnecessary to rely on the judge's finding that the arbitration panel determined that conditions were not "abnormally dangerous." The arbitration panel made no finding on the issue. Even assuming that Burditt was entitled to seek medical attention because of exposure to a hazardous material, the Board reasoned the arbitration award is susceptible to an interpretation that Burditt failed to follow established safety procedures earlier that day and would have been properly disciplined, in any event, for that misconduct.

Charge filed by Kim Burditt, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Memphis, Nov. 2, 3, and 6, 2000. Adm. Law Judge Keltner W. Locke issued his decision Dec. 5, 2000.

Limbach Company (9-CA-34663; 337 NLRB No. 85) Columbus, OH May 30, 2002. The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by threatening employee Rosemary Taylor, through sheet metal trade manager James Ziegler, with discharge if she retained her position of union steward and Section 8(a)(3) and (1) by discharging Taylor because of her union activities. [HTML] [PDF]

The Respondent, in exceptions, implied that the judge's rulings, findings, and conclusions demonstrate bias and prejudice because the judge has found Section 8(a)(3) violations in all of the Section 8(a)(3) cases she has decided since January 1973, save one. After careful examination of the decision and the entire record, the Board ruled that the Respondent's contentions are without merit. Assuming arguendo that the Respondent's statistics are accurate, they do not demonstrate bias, the Board observed, noting as the Fourth Circuit has held, a judge should not be "rate[d] by the percentage of time he or she rules on a given side of a case. To evaluate an ALJ's impartiality in this way amounts to judging [his or her] record by mere result or reputation. In reality, such statistics tell us little or nothing." Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996).

Charge filed by Sheet Metal Workers Local 24; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cincinnati, Feb. 23-26, 1999. Adm. Law Judge Nancy M. Sherman issued her decision March 31, 2000.

Guardian Armored Assets, LLC (7-RC-22204; 337 NLRB No. 90) Southfield, MI May 24, 2002. Members Liebman and Bartlett agreed with the Acting Regional Director's finding that the Petitioner (Michigan Association of Police-911) is not disqualified from representing the Employer's guards simply because it represents police officers in the public sector. Accordingly, the majority denied the Employer's request for review of the Acting Regional Director's Decision and Direction of Election. Member Cowen, in dissent, would grant review. He asserted that the Petitioner's representation of both groups would raise an inherent, irreconcilable conflict in situations where police officers are called upon to investigate the Employer's guards. In his view, by directing an election in this matter without a further development of the factual record, the Board risks facilitating a systematic and widespread violation of the law. [HTML] [PDF]

The issues presented for review were whether the Petitioner was qualified to represent a unit of statutory guards under Section 9(b)(3) of the NLRA notwithstanding: 1) that by the language of its by-laws it may admit associate members who are not statutory guards; 2) an alleged conflict of interest based on its solicitation and receipt of donations and advertising revenue from customers of the Employer; and 3) an alleged conflict of interest based on the Petitioner's representation of units of police and other public law enforcement officers.

Member Cowen raised another issue for granting review regarding the Petitioner's practice of soliciting contributions from employers covered by the NLRA. He wrote: "As long as the Petitioner remains a union dedicated to representing employees in the public sector, this solicitation of private employers does not present an issue. However, once the Petitioner determines that it will admit to membership and seek to represent employees of employers under the National Labor Relations Act, this practice of soliciting and receiving funds raises serious issues of criminal conduct under Section 302 of the Labor Management Relations Act, 29 U.S.C. Sec. 186." Member Cowen suggested that to the extent the record is unclear, the fault lies with the Petitioner's failure to respond to the Employer's subpoena for information about the Petitioner's membership requirements and fundraising practices. He would grant the request for review and remand to the Regional Director for the enforcement of the Employer's subpoena and a full hearing regarding the Petitioner's membership requirements and fundraising practices.

The majority said it need not, and did not, decide at this point whether Section 302 would provide a basis to deny the Petitioner the benefits of certification. It noted that the Employer did not raise the Section 302 issue and its denial of review does not by itself foreclose the Employer from raising the issue in subsequent proceedings. While the majority did not condone the Petitioner's failure to follow Board procedures by either complying with or petitioning to revoke the Employer's subpoenas, it agreed with the Acting Regional Director's finding that the Petitioner's failure to comply with the subpoenas at this stage of the proceeding was not prejudicial.

Electrical Workers (IBEW) Local 702 (F.W. Electric, Inc.) (14-CD-1026; 337 NLRB No. 89) Benton, IL May 30, 2002. The Board determined that the employees of F.W. Electric represented by Electrical Workers Local 702 rather than those represented by Laborers Local 227 are entitled to perform the work in dispute. The disputed work is all flagging, concrete pouring, operation of power-concrete saws and hand tampers, and digging with shovels, trowel, or other hand tools necessary for the installation of traffic signals at the highway construction site located at Reed Station Road and Highway 13 in Carbondale, Illinois. In making its award, the Board relied on the factors of collective- bargaining agreements, employer preference and current assignment, employer past practice, relative skills and training, and economy and efficiency of operations. [HTML] [PDF]

Colden Hills, Inc. (3-CA-22657; 337 NLRB No. 86) Buffalo, NY May 28, 2002. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by informing Brian Urquhart that as a union worker he would not be able to work for the Respondent because he could not work for a company that was not union; informing Urquhart that his application was not taken seriously because he was a union organizer; and refusing to consider for employment and refusing to hire Urquhart because of his membership in and activities on behalf of the Union. [HTML] [PDF]

In his decision, the judge cited two statements by the Respondent's vice president, Patricia Kester, which he found violated Section 8(a)(1). In one of the statements, Kester told Urquhart that she presumed that, as a union worker, he would not work for the Respondent because he could not work for a nonunion company. Urquhart asked Kester whether it made a difference to her that "I'm union and you're not union." In response Kester said to Urquhart:

I don't think that if you were a regular union worker that you'd even be able to work for our firm, 'cause usually, you're union, you can't work . . . for a company that's not union, from what I understand. Some people who have come here and applied for jobs in the past, if they've been union, found out that we weren't union, they weren't even able to consider us as employment. The Board disagreed with the judge and did not find the statement coercive. Taken in its factual context, the Board said "Kester's statement conveys her belief that union rules, rather than employer action, precluded Urquhart's employment with the Respondent."

The General Counsel, in cross-exceptions, requested that the Respondent be required to reimburse Urquhart "for any extra Federal and/or state income taxes resulting from the lump sum payment of the backpay award." The Board declined to order this relief, finding that such remedial relief sought by the General Counsel would involve a change in Board law and it is not appropriate to consider such a change in the absence of a full briefing by the parties. Kloepfers Floor Covering, Inc., 330 NLRB 811; Ishikawa Gasket America, Inc., 337 NLRB No. 29 (2001); Cannon Valley Woodwork, 333 NLRB No. 97 (2001).

Charge filed by Asbestos Workers Local 30; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Buffalo on April 21, 2001. Adm. Law Judge Eric M. Fine issued his decision July 26, 2001.

Newspaper and Mail Deliverers' Union of New York (New York Post) (2-CC-2429, 2-CE-183; 337 NLRB No. 91) New York, NY May 31, 2002. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(e) of the Act by entering into and enforcing section 11-A.1 of its collective- bargaining agreement with NYP Holdings, Inc., publisher of the New York Post; violated Section 8(b)(4)(ii)(A) by resorting to arbitration with an object of forcing or requiring Holdings to enter into an agreement prohibited by Section 8(e); and violated Section 8(b) (4)(ii)(B) by resorting to arbitration with an object of forcing or requiring Holdings to cease doing business with United Media or its successor, D.S.A. Section 11-A.1 provides that [t]o the extent permitted by law, the Publisher shall not distribute its newspapers or any of its other publications through any wholesaler or news company making distribution in any part of the Metropolitan area, as herein defined, unless such wholesaler is under written collective agreement with the Union or is willing to enter into written collective agreement as provided for in this section. [HTML] [PDF]

The judge found, and the Board agreed, that section 11-A.1 seeks to regulate the labor policies of other entities over which Holdings has no right to control. At issue is the distribution of the New York Post in Nassau and Suffolk Counties on Long Island. Historically, members of the bargaining unit had not performed the work and it was not fairly claimable by the Union. The Union's attempt to obtain the work for the employees of C & S, a union signatory employer, accordingly had an unlawful secondary objective and was not an attempt to retain or recapture unit work, the Board held. And, the union brought its grievance to the impartial chairman to accomplish an unlawful object- preventing Holdings from subcontracting delivery work to a nonunion company.

The Board, deciding an issue the judge did not consider, found that the Union also violated Section 8(b)(4) by attempting to enforce section 3-E as a basis for its grievance against Holdings. It noted that the Union admitted that it relied on section 3-E before the impartial chairman and, as the judge found, the Union had a secondary objective in pursuing its grievance. Section 3-E provides that [s]ubject to the side letters and memoranda attached hereto, the methods and extent of direct delivery and combined delivery through wholesalers or news companies as they exist within the Metropolitan Area at the time of the effective date hereof are to be continued, and no change can be made except by application to and with the approval of the Joint Conference Committee.

Charge filed by NYP Holdings, Inc., d/b/a New York Post; complaint alleged violation of Section 8(b)(4)(ii)(A) and (B) and Section 8(e). Hearing at New York on 5 days between March 28 and July 5, 2000. Adm. Law Judge Eleanor MacDonald issued her decision Feb. 22, 2001.

Tim Foley Plumbing Service (25-CA-25652, 25730, 25- RC-9699; 337 NLRB No. 88) Muncie, IN May 31, 2002. The Board affirmed the administrative law judge's finding, applying the framework set forth in FES, 331 NLRB No. 20 (2000), that the Respondent unlawfully refused to hire six job applicants for journeyman plumber positions because of their union affiliation. Although the judge mischaracterized the practical differences between refusal-to-hire cases and refusal-to-consider cases, the Board decided that he properly analyzed all of the elements of a discriminatory refusal-to-hire violation. It also affirmed the judge's finding that the General Counsel failed to show that a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), is a necessary remedy, but it did not adopt all of the judge's rationale. The Board directed a second election. [HTML] [PDF]

The cases arose from unfair labor practice charges and objections to a September 1997 representation election. In a decision reported at 332 NLRB No. 158 (2000), the Board affirmed the judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider the six applicants for journeyman plumber positions and changing its hiring policies in order to exclude union applicants; violated Section 8(a)(1) by threatening employees with unspecified reprisals because they wore union t-shirts; and violated Section 8(a)(1), though its agent, Kenneth Harper, by interrogating employees about their activities for Indiana State Pipe Trades Association Local 661 and threatening them with plant closure, loss of wages, and other benefits. The Board agreed with the judge that the violations committed by the Respondent and its agents during the course of the union campaign warranted setting aside the election. It did not order a second election but instead directed the judge to reconsider on remand the propriety of a Gissel bargaining order after he considered the Board's decision and the refusal-to-hire allegations under the FES framework.

In deciding that the General Counsel failed to show that a Gissel bargaining order is warranted, the Board, contrary to the judge, did not rely on the fact that Supervisor Harper no longer works for the Respondent. It wrote: "Harper was a spokesman for Foley's views and the employees viewed Harper as an 'extension' of owner Tim Foley. As Foley still remains the owner and highest management official of the Respondent, Harper's departure is of no consequence."

Adm. Law Judge Arthur J. Amchan issued his supplemental decision March 26, 2001.

Postal Workers Local 551 (U.S. Postal Service) (15-CB-4696(P); 337 NLRB No. 84) Pensacola, FL May 17, 2002. The Board, on the recommendation of the administrative law judge, dismissed the complaint allegation that the Respondent violated Section 8(b)(1)(A) of the Act by failing to adequately pursue a grievance filed by Michael Russo concerning his eligibility to work overtime. [HTML] [PDF]

As a result of Employer supervisor Gonzalez's failure to timely respond to Russo's inquiry regarding the requirements for inclusion on the overtime desired list (ODL), Russo missed the deadline to sign the list and was precluded from working overtime for a calendar quarter. He filed a grievance and a step-1 meeting was held. At the meeting, Union Representative Volume Ali rejected the Employer's proposed settlement offering to place Russo on the list and compensate him for lost overtime. Ali requested that the Employer deny the grievance so he could take it to step 2. The Employer denied the grievance at step 1. The Respondent did not file a step-2 appeal and the grievance was not again pursued until after Russo filed the instant charge.

The judge concluded that the Respondent refused to accept the Employer's offer to put Russo on the ODL because the Union's policy allowed no exceptions to the time deadlines for the ODL. He found no evidence of animus or discriminatory motivation for the Respondent's failure to act. Because the Employer never offered to resolve the grievance solely through payment, the judge concluded that the Union did not act in an arbitrary manner in failing to follow up on an offer it would not accept.

The General Counsel excepted to the judge's conclusion that the Respondent did not violate its duty of fair representation by refusing to pursue Russo's grievance beyond step 1. The Board acknowledged that some of the Respondent's actions "may be open to question." The Respondent made no attempt to pursue a settlement based on compensation without placement on the ODL, did not pursue the grievance after telling Russo that it would take his grievance to step 2, and did not inform him of the decision to drop the grievance because, in its view, it lacked merit. The Board noted however that there were no exceptions to the judge's findings that the Respondent did not discriminate against Russo because he did not join the Respondent and that Respondent's policy to allow no exceptions to the time deadline for inclusion on the ODL was not arbitrary. "Given these unexcepted-to findings and the wide discretion unions have in deciding whether to pursue grievances, we find the Respondent's actions here did not violate the Act," the Board held.

Charge filed by Michael Russo, an Individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Pensacola in May 2001. Adm. Law Judge Keltner W. Locke issued his bench decision June 13, 2001. (7-CA-40946; 331 NLRB No. 7) Oscoda, East Texas.

Charge filed by the Elevator Constructors International; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Omaha on May 22, 2001. Adm. Law Judge Albert A. Metz issued his decision Aug. 10, 2001.

Hobart Crane Rental, Inc. and Hobart Welding and Fabrication, Inc., a Single Employer (13-CA-37664, 37715; 337 NLRB No. 77) Hobart, IN May 10, 2002. Agreeing with the administrative law judge that the Board lacks jurisdiction over the Respondent, the Board dismissed the consolidated complaint on that basis and found it unnecessary to pass on the merits of the alleged violations. The judge found that the General Counsel failed to prove that Hobart Crane Rental, Hobart Welding and Fabrication, or both of them together, met the Board's jurisdictional standards for nonretail enterprises. The consolidated complaint alleged that the two companies constituted a single employer and that Hobart Crane violated Section 8(a)(5) and (1) of the Act by failing to provide the Union with information regarding the single employer allegation and Section 8(a)(3) and (1) by discriminatorily laying off two employees because of their union activities.[HTML] [PDF]

Members Liebman and Bartlett wrote in deciding not to modify the case caption by deleting the phrase "a Single Employer," as proposed by Member Cowen: "The single-employer reference in the caption is simply an allegation, reflecting the General Counsel's styling of the case, and does not indicate any determination by the Board as to the single-employer issue." Member Cowen would amend the case caption by deleting "Single Employer." He believes "it is inappropriate to include within a case caption a substantive allegation of the complaint. Such a practice serves no legitimate purpose, and could tend to give the appearance that the Board has prejudged the relationship among the parties."

Charges filed by Operating Engineers Local 150; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Chicago, June 13-15, 2000. Adm. Law Judge Marion C. Ladwig issued his decision Jan. 4, 2001.

Operating Engineers Local 12 (Kiewit Industrial) (28- CB-5193; 337 NLRB No. 83) Boulder City, NV May 15, 2002. Reversing the administrative law judge, the Board dismissed the complaint, finding that the Respondent did not violate Section 8(b)(1)(A) and (2) of the Act, as alleged, by causing Kiewit Industrial to discriminate against employee Alan Wayne because of Wayne's internal union activities. On August 9, 1999, Union Business Representative David Garbarino visited the Respondent's jobsite, met with Terry Inman, a Kiewit supervisor, and had a discussion that was the subject of the instant charge. There is no direct evidence that the Respondent sought to have Kiewit lay off Wayne. The judge inferred from Garbarino's comments to Inman that the Respondent sought that result. The Board concluded that no such inference is reasonable based on the record before it and applicable case law.[HTML] [PDF]

Garbarino asked how the job was going, and Inman replied that it was going fine. Garbarino then asked if more operators were going to be hired and Inman responded probably not. Garbarino inquired of Inman how the "New York boy" (Wayne) was doing. Inman asked Garbarino what piece of equipment he operated, and Garbarino told him that Wayne operated the Bobcat. Garbarino added that Wayne "was on the A board" (the union advisory board) and that he was "at odds with the Union." Garbarino asked if Wayne would be laid off when the Bobcat work was done. Inman replied that he would be laid off if no other work were available for him. Later that day, Inman asked two of his supervisors about Wayne and was told that he was a "real good operator."

The Board decided that Garbarino's comments, whether standing alone or in the context of the conversation with Inman, did not display animus toward Wayne and did not logically convey to Kiewit that the Respondent wished the Employer to discriminate against Wayne. Nor was it reasonable to infer that Garbarino's comment that Wayne was "at odds with the union"-without more- would suggest to Inman that Wayne was a troublesome employee. Although the statement reflected that there were some differences between Wayne and the Respondent, it did not establish that the Respondent bore animus against Wayne because of the differences, the Board explained. Even if the statement established such animus, the record did not establish that the Respondent was asking Inman to lay off Wayne because of that animus.

Charge filed by Alan Wayne, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Las Vegas on June 27, 2000. Adm. Law Judge Thomas Michael Patton issued his decision Nov. 7, 2000.

7UP of Cincinnati, a Unit of Brooks Beverage Management, Inc. (9-CA-38213; 337 NLRB No. 80) Cincinnati OH May 13, 2002. Affirming the administrative law judge's recommendation, the Board dismissed the complaint allegation that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to hire Steven C. Saunders since August 14, 2000 because of his activities for Teamsters Local 1199.[HTML] [PDF]

The Respondent argued that Saunders was not hired because Distribution Manager Frank Doyle felt he would not be a long-term employee. Doyle based this conclusion on two factors: (1) Saunders told Doyle that he needed a job in the bargaining unit so he could hopefully get a position on the executive board and eventually run for union president again; and (2) Doyle was skeptical about how long Saunders would remain in the merchandiser position as he was willing to take close to a 50 percent cut in pay from the approximately $45,000 he made as full-time union president. In Doyle's experience, individuals who took a large cut in pay would be continually looking for alternative employment to equal their prior wages.

The judge found that refusing to hire an individual who it was contemplated would not remain in the merchandiser position for a long period of time and who would be taking a substantial cut from historical wage levels are legitimate reasons to deny employment. Therefore, the judge held that the Respondent's refusal to hire Saunders was for legitimate business reasons rather than because he sought employment in order to get back in the Union so he could eventually run for union office again.

Charge filed by Steven C. Saunders, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cincinnati on Aug. 30, 2001. Adm. Law Judge Bruce D. Rosenstein issued his decision Oct. 29, 2001.

Shaw's Supermarkets, Inc. (1-CA-37507; 337 NLRB No. 73) Wells, ME May 10, 2002. The Board adopted the administrative law judge's recommendation and dismissed the complaint alleging that the Respondent violated the Act by refusing to execute a collective-bargaining agreement it reached with Food and Commercial Workers Local 791 on June 26, 1998 and tendered by the Union for execution on November 23, 1998. The Board agreed with the judge's finding that the record evidence did not establish that the document submitted by the Union to the Respondent reflected a meeting of the minds assertedly reached by the parties on June 26. It found it unnecessary to pass on the judge's finding that the Respondent's interpretation of the agreement reached on June 26 was correct.[HTML] [PDF]

Charge filed Food & Commercial Workers Local 791; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston, June 5-8, 2000. Adm. Law Judge Raymond P. Green issued his decision Sept. 13, 2000.

Hospital Dr. Susoni, Inc. (24-CA-8204, 8524; 337 NLRB No. 82) Arecibo, PR May 15, 2002. The Board affirmed the administrative law judge's recommended order dismissing the complaint allegations that the Respondent violated Section 8(a) (1) of the Act by maintaining photographs of employees engaged in union activity and Section 8(a)(3) and (1) by discharging employees Jose Santiago and Maritza Ramos. The judge found that Santiago and Ramos, who worked for the Respondent as registered nurses, were open union supporters and the Respondent was aware of their union activity. He did not credit the testimony offered by the General Counsel to show that the Respondent harbored antiunion animus. Nor did he infer an unlawful motive from the Respondent's asserted reasons for their discharges.[HTML] [PDF]

The judge concluded that the Respondent fired Santiago because he did not renew his professional license. While the Respondent had a policy of allowing employees who failed to renew their licenses to transfer into other positions, the policy applied only when there were openings available. The judge found that the General Counsel failed to show that any such opening existed at the time that Santiago's license lapsed and, accordingly, that the General Counsel failed to meet his burden under Wright Line.

The Respondent asserted that it discharged Ramos because she put hospital patients' lives at risk by, without oral or written instructions, removing a fetal monitor from a patient who was 38 weeks pregnant and had a high fever and transferring the patient out of the delivery room. The judge found Ramos acted in accordance with existing procedures and was fired for doing so, but that it did not necessarily compel a finding that her discharge was motivated by antiunion animus. After examining the entire case, he said there appeared to be other reasons why the Respondent might have terminated Ramos despite her apparent compliance with hospital policies. The judge, in declining to infer that Ramos' union activities were a motive in her discharge, noted particularly the absence of any credible evidence of antiunion animus and concluded that the General Counsel failed to establish his initial burden under Wright Line.

Charges filed by Unidad Laboral de Enfermeras(os) y Empleados de la Salud; complaint alleged violation of Section 8(a)(1) and (3). Hearing in San Juan on Oct. 16-19, 2001. Adm. Law Judge William G. Kocol issued his decision Dec. 27, 2001.

Consolidated Delivery & Logistics, Inc. (22-CA-23543; 337 NLRB No. 81) Teterboro, NJ May 15, 2002. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees who engaged in a strike at the Respondent's Neuman jobsite in Teterboro, NJ for recognition of Teamsters Local 418, and by refusing to reinstate strikers on their unconditional offers to return to work.[HTML] [PDF]

The Board agreed with the judge that the Respondent unlawfully discharged the striking drivers by distributing a memorandum on August 6, 1999 that stated unambiguously "you have been permanently replaced." It is undisputed that at the time the memo was distributed, the

Respondent had not hired any replacements or even made contact with Labor Ready, the employment service that it now contends replaced the drivers. The Respondent's first contact with Labor Ready occurred two days later on August 8. Agreeing with the judge that the Respondent unlawfully refused to reinstate strikers upon their unconditional offer to return to work, the Board found that the Respondent failed to prove that it permanently replaced the strikers by entering into a permanent subcontract with Labor Ready.

The Board modified the judge's recommended Order (1) to reflect that all strikers discharged on August 6, 1999 (including those who were later refused reinstatement) shall be made whole from the date of the unlawful discharge; (2) by issuing its standard reinstatement order requiring the Respondent to reinstate the discriminatees to their former positions or, if those positions no longer exist, to substantially equivalent positions; and (3) to require that the Respondent mail copies of the notice only to those current and former employees who were employed at the Neuman site at any time since August 6, 1999.

Charge filed by Teamsters Local 418; complaint alleged violation of Section 8(a)(3) and (1). Hearing at Newark, March 14-15, 2000. Adm. Law Judge Steven Davis issued his decision Aug. 3, 2000.

Mead Coated Board, Inc. d/b/a Mead Southern Wood Products (15-RC-8339; 337 NLRB No. 72) Cottonton, AL May 7, 2002. The Board affirmed the hearing officer's recommendations with respect to the Employer's objections and certified the PACE International as the exclusive representative of the employees in the appropriate unit. The election of June 21, 2001 resulted in 72 ballots for and 58 against the Union, with 6 challenged ballots, an insufficient number to affect the results.[HTML] [PDF]

The Employer excepted, among others, to the hearing officer's recommendation to overrule its Objection 1 alleging that Union observer Walter Bell maintained a separate voter eligibility or Excelsior list during the election. Bell used a duplicate copy of the Excelsior list as a challenge list with the voters he intended to challenge highlighted. When Bell encountered a voter whose name was highlighted, he informed the Board agent of his challenge and checked off the names with a red "C" to indicate that the challenge was made. The hearing officer found Bell's list to be a bona fide challenge list.

The Board noted that the keeping of a list of who has or has not voted, aside from the official Excelsior list, may be grounds for setting aside an election. However, it found no evidence that Bell's list was maintained for an improper purpose or that employees reasonably believed it was being used for an improper purpose and, thus, the Board agent did not abuse his discretion by not prohibiting Bell's use of the separate Excelsior list as a challenge list.

The Board, citing Sound Refining, Inc., 267 NLRB 1301 (1983), illustrated how protecting employees but preserving the rights of the parties are both accommodated. The Board in that case held that the use of a separate Excelsior list was impermissible where the union's purpose was to record each vote by checking off the name of every voter. But the Board also observed that if the list had been used for the purpose of ensuring that proper challenges were made, it would have been permissible activity. The Board said "[w]here the duplicate Excelsior list was used neither to record who had or had not voted, nor in such a manner as to lead employees to reasonably believe that the list was being used other than to make challenges, there is no danger of coercion and no basis to set aside the election."

Phoenix Transit System (28-CA-15177; 337 NLRB No. 78) Phoenix, AZ May 10, 2002. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by maintaining a confidentiality rule prohibiting employees from discussing their sexual harassment complaints among themselves, stating: "As found by the judge, employees have a protected right to do so, and Respondent's confidentiality rule clearly restricted the exercise of that right. Further, in agreement with the judge, we find that the Respondent failed to establish a legitimate and substantial justification for its rule."[HTML] [PDF]

Chairman Hurtgen did not pass on whether an employer can have a rule "under which employees speak with confidentiality to their employer in the course of an investigation into alleged sexual harassment." He found the rule in this case is overly broad because it forbids employees from speaking among themselves or to third parties about such complaints.

The Board affirmed the judge's finding that the Respondent further violated Section 8(a)(1) by enforcing its confidentiality rule in discharging employee, union officer, and newsletter editor, Charles Weigand, in April 1998. Contrary to the judge, the Board did not apply a Wright Line analysis, which is used in cases that turn on the employer's motive. In this case, it is undisputed that the Respondent discharged Weigand because he wrote articles in the union newsletter about the Respondent's handling of employee sexual harassment complaints. The Board agreed with the judge that Weigand's articles constituted protected concerted activity. It then decided the "only issue" and agreed with the judge that Weigand's conduct did not lose the protection of the Act because, as asserted by the Respondent, his articles disclosed confidential information or otherwise crossed over the line separating protected and unprotected activity.

The Board found it unnecessary to decide whether Weigand's discharge also violated Section 8(a)(3). It upheld the judge's refusal to defer to the arbitrator's award concerning Weigand's discipline and discharge.

Charge filed by Amalgamated Transit Union, Local 1433; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Phoenix on Sept. 13, 2000. Adm. Law Judge Frederick C. Herzog issued his decision April 27, 2001.

Pacific Micronesia Corporation d/b/a Dai-Ichi Hotel Saipan Beach (37-CA-4926, et al.; 337 NLRB No. 66) Island of Saipan, CNMI April 29, 2002. The Board held, contrary to the administrative law judge, that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing a misconduct notice to Hermie Coronejo and by not renewing the employment contracts of nonresident employees Coronejo, Rosanna Cayabyab and Luisa Adao because of their union activities. The Board, in concluding that the Respondent lawfully failed to renew the employment contracts of 36 other nonresident employees, agreed with the judge's initial decision that the Respondent demonstrated that a reduction in force was necessary due to the downturn in the Asian economy and that it was required to replace seven of the alleged discriminatees with available, eligible local employees. [HTML] [PDF]

This case involves allegations that the Respondent violated Section 8(a)(1), (3), (4), and (5) in response to an organizational campaign by Hotel and Restaurant Employees Local 5. In a decision reported at 326 NLRB 458 (1998), the Board certified the Union as the exclusive representative of the Respondent's employees. In 1999, the Board held that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union following the certification. 327 NLRB No. 131. The D.C. Circuit in June 2000 invalidated the Union's certification and denied enforcement of the Board's bargaining order. Dai-Ichi Hotel Saipan Beach v. NLRB, 219 F.3d 661 (D.C. Cir. 2000).

While the judge's 1999 initial decision was pending before the Board on exceptions by both parties, the Board granted the General Counsel's motion to reopen the record in light of newly discovered evidence and remanded the proceeding to the judge. The General Counsel alleged that Hideo Fujii, a manager of a manpower company that supplied employees to the Respondent, perjured himself in the initial hearing and concealed evidence from the General Counsel that the Respondent had schemed to replace prounion Filipino employees with employees from Nepal in order to defeat the Union in the 1998 Board election. The General Counsel alleged that newly discovered evidence refuted the Respondent's Wright Line defense that the judge accepted in recommending dismissal of the 8(a)(3) allegations regarding the Respondent's decision not to renew the employment contracts of the alleged discriminatees.

Based on his assessment of the evidence presented at the reopened hearing, the judge discredited Fujii on all material allegations and concluded that the Respondent did not participate in a scheme to replace Filipino nonresidents with workers from Nepal in order to win the 1998 election. He sua sponte reconsidered his initial decision, modified his earlier findings, and held that the Respondent unlawfully failed to renew the contracts of 28 of the nonresident discriminatees in order of seniority.

In light of the court's decision, the Board dismissed all of the Section 8(a)(5) allegations. It found no basis for reversing the judge's discrediting of Fujii's testimony, but it decided that he erred in finding a violation based on the Respondent's failure to select employees for nonrenewal in order of seniority. Assuming arguendo that the judge had the authority to reconsider his initial decision, the Board found his seniority rationale is "inconsistent" with established precedent. It noted that the General Counsel relied on other bases for his theory of the case and did not endorse the judge's seniority analysis in his exceptions to the supplemental decision. Further, the failure to lay off employees in order of seniority cannot constitute evidence of discriminatory motive in the absence of evidence that seniority has been used in the past. There is no evidence that the Respondent ever used seniority as a basis for any employment decision.

Charges filed by Hotel & Restaurant Employees Local 5 and Commonwealth Labor Federation; complaint alleged violation Section 8(a)(1), (3), (4) and (5). Hearing at Saipan on various dates between April 26 and May 14, 1999 and March 12 and 23, 2001. Adm. Law Judge James L. Rose issued his decision Sept. 15, 1999 and supplemental decision July 2, 2001.

Lackawanna Electrical Construction, Inc. (4-CA-29391, 29877; 337 NLRB No. 62) Taylor, PA Apr. 24, 2002. The Board upheld the administrative law judge's conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider for hire six union applicants because: (1) the Respondent excluded them from the hiring process; (2) antiunion animus contributed to its decision not to consider the applicants; and (3) the Respondent has failed to show it would not have considered the applicants even in the absence of their union activity, or affiliation. FES (A Division of Thermo Power), 331 NLRB No. 20 at slip op. 7 (2000). The Board also found that the judge's Conclusion of Law 4 should have stated that the Respondent violated the Act by refusing to hire and refusing to consider for hire the six applicants (rather than or refusing to consider them). [HTML] [PDF]

Citing Aztech Electric Co., 335 NLRB No. 25 at slip op. 5 (2001) and Sunland Construction Co., 309 NLRB 1224 (1992), the Board agreed with the judge that the Respondent did not rely on the existence of any "disabling conflict" created by the paid union organizer status of two union applicants as a basis for refusing to hire them and, therefore, found no error in the judge's failure to grant the Respondent's request to reopen the hearing to present additional evidence with respect to this matter. No exceptions were filed to the judge's finding that the Respondent unlawfully granted employees wage increases in order to discourage support for the union.

Charges filed by Electrical Workers IBEW Local 81; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Scranton, PA on Aug. 1, 2001. Adm. Law Judge George Alemán issued his decision Dec. 21, 2001.

Phelps Dodge Specialty Copper Products Co. (22- CA-24104; 337 NLRB No. 64) Elizabeth, NJ April 22, 2002. The Board, on the recommendation of the administrative law judge, dismissed the complaint allegations that the Respondent violated the Act by refusing to bargain in good faith with the Union about the union-security and dues-checkoff provisions of their collective-bargaining contract. [HTML] [PDF]

In support of his findings, the judge noted that the Respondent made numerous concessions during negotiations on wages and other matters; that the Respondent explained its position regarding union-security and dues-checkoff provisions; and that some bargaining unit members informed management that they objected to joining the union. As further evidence that the Respondent bargained in good faith, the Board noted that on July 13, 2000, the Union rejected the Respondent's proposal that the parties adopt the expired contract, which contained the union- security clause.

Charge filed by Electronic Workers (IUE) Local 441. Hearing at Newark on May 22 and 23, 2001. Adm. Law Judge Raymond P. Green issued his decision July 10, 2001.

Sears, Roebuck and Company (12-CA-19317, 19533; 337 NLRB No. 65) West Palm Beach and Plantation, FL April 19, 2002. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees John Iaci, Corliss Hepburn, and Cordy Richardson because of their union activities. [HTML] [PDF]

The Board agreed with the judge that the General Counsel met his initial Wright Line burden of showing that Iaci's union activities were a motivating factor in the Respondent's decision to discharge him, rejecting the Respondent's argument that the record did not support a finding that it had knowledge of Iaci's union activity or had antiunion animus. The judge found, with Board approval, that the Respondent failed to establish that Iaci would have been discharged in the absence of his union activities. Iaci's alleged work infractions were: (1) changing warranty dates on appliances, (2) selling maintenance agreements to customers and performing service checks on that basis; and (3) performing service checks on customers' second appliances at the time of a service call on another appliances. The Board found the Respondent's reasons for discharging Iaci were pretextual.

Charges filed by Individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami on various days in February and March 2000. Adm. Law Judge Jane Vandeventer issued her decision Nov. 24, 2000.

Contech Division, SPX Corporation (7-CA-39039, et al.; 337 NLRB No. 59) Dowagiac, MI, Mar. 28, 2002. Citing Caterpillar, Inc. 332 NLRB No. 101 (2000), the Associate Executive Secretary, by direction of the Board, granted the Charging Party's and the Respondent's joint motion to vacate order and to remand based on the non-Board settlement agreement of this matter. The prior order reported at 333 NLRB No. 94 (2001) was vacated and the case remanded to the Regional Director for further appropriate action. [HTML] [PDF]

Stock Building Supply (18-RC-16871; 337 NLRB No. 61) Cedar, MN April 3, 2002. Chairman Hurtgen and Member Bartlett granted the Employer's request for review of the Regional Director's Decision and Direction of Election, finding that the Regional Director did not exercise the appropriate discretion in granting without prejudice the Union's request to withdraw its earlier petition in Case 18-RC-16856. The majority remanded this case to the Regional Director for consideration of the Employer's contention that the Union's (Teamsters Local 221) earlier petition should have been dismissed with 6 months prejudice. If prejudice had attached, the instant petition (filed within 6 months of the earlier withdrawal) seeking to represent a different unit of the Employer's employees would not be processed, the majority explained. [HTML] [PDF]

Member Liebman, dissenting, found the Regional Director's approval of the withdrawal of the petition in Case 18-RC-16856 without prejudice and his denial of the Employer's motion to dismiss the instant petition were a proper exercise of his discretion. She saw no basis for a remand and would deny the Employer's request for review.

The Regional Director determined that the unit sought in Case 18-RC-16856 was too narrow and instead directed an election in a broader and substantially different unit. Initially, the Union indicated that it wished to proceed with the election in the broader unit but before receiving the eligibility list of voters, it changed its mind and requested withdrawal of the petition.

Section 11113 of the Board's Casehandling Manual (Part Two) Representation Proceedings reads as follows:

The Regional Director, in applying Section 11113, granted the Union's withdrawal request without prejudice because condition number three was absent (the Union was not provided the eligibility list before it withdrew the petition). The majority found the Regional Director's interpretation was in error, noting if one or more of the three conditions is missing, the Regional Director is to exercise his discretion. However, it said the Regional Director "clearly held that withdrawal with prejudice should occur if and only if all three conditions, including the providing of an eligibility list, have been met. Literally, he expressed his view that the only way that withdrawal is to be with prejudice is if all conditions are met. Phrased differently, the Regional Director said that the nonfulfillment of a condition means that the withdrawal must be without prejudice. Thus, the Regional Director did not exercise discretion."

Grane Health Care, Inc., and Lexington, III, Inc. d/b/a Nittany Manor Care Associates, a Partnership d/b/a Altoona Hospital Center for Nursing Care and Amber Terrace (6-CA-31803; 337 NLRB No. 58) Altoona, PA Mar. 28, 2002. In the absence of exceptions, the Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with Service Employees Local 585 by unilaterally granting wage increases to all licensed practical nurses (LPNs) and certified nursing assistants (CNAs), without the Union's consent during the term of a collective- bargaining agreement. [HTML] [PDF]

The Respondent contended that the management rights provision of the parties' collective-bargaining agreement permitted it to provide a financial incentive to recruit and retain critical employees like the LPNs and CNAs. It argued that it acted reasonably and within the ambit of its contract authority to manage the Company by avoiding the loss of employees deemed critical to its operations because of an uncompetitive wage structure. The General Counsel argued that article XXI of the agreement clearly and unambiguously sets forth the agreed-upon wage structure and timetable for increases in unit employees' wages and that these dates and amounts are controlling and binding on the parties.

In his exceptions, the General Counsel requested only that the Board correct the Respondent's name in the caption and in the notice to employees, conform the notice to the judge's recommended Order, and correct an inadvertent error in the notice. The Respondent did not file exceptions to the judge's decision or an answering brief to the General Counsel's exceptions.

Charge filed by Service Employees Local 585; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Ebensburg, PA on June 19, 2001. Adm. Law Judge Earl E. Shamwell Jr. issued his decision Jan. 14, 2002.

Elevator Constructors Local 2 (Unitec Elevator Services Company) (13-CB-16499-1; 337 NLRB No. 55) Chicago, IL. The Board granted the Respondent's motion and accepted a late- filed brief under the excusable neglect provision of Section 102.111(c) of the Board's Rules and Regulations. The Respondent's motion sought permission to file the late brief on the ground that the Respondent's counsel "mistakenly calculated the 14 days to include November 3, a Saturday . . . ." Under Section 102.46(d) (1) of the Board's Rules, the Respondent's answering brief was due on November 2, 2001. The brief, which was dated and mailed on November 2, was received on November 5 and was thereafter rejected as untimely. [HTML] [PDF]

The Board, however, decided to grant the Respondent's motion and accept the brief in light of its decision in Postal Service, 309 NLRB 305 (1992), because Postal Service has never been expressly overruled. In Postal Service, the Board concluded that a "one day arithmetic error in the calculation of a due date is not so inexcusable as to warrant the rejection of the document, at least where, as here, there has been no prejudice to any party." The Board found that the decision in Postal Service is inconsistent with later published and unpublished Board decisions, as well as with the Supreme Court's analysis of excusable neglect in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), which has guided the Board's recent decisions. Accordingly, given the confusion and perception of ambiguity that the Board's past decisions and practice may have caused, the Board decided to clarify its position on miscounting as an excuse for late filings. It said:

Parson & Lusk, Inc. (11-CA-18905-2, 18906; 337 NLRB No. 56) Bluefield, WV. Granting the General Counsel's motion for partial summary judgment, the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging David Shrewsbury because of his activities for Sheet Metal Workers Local 33; and violated Section 8(a)(1) by advising an employee that his discharge was due to his organizational activities on the Union's behalf, soliciting its employees to withdraw their union support, threatening its employees that their selection of the Union as a bargaining representative would be futile, and threatening them with plant closure if they select the Union as their bargaining representative. [HTML] [PDF]

The Respondent is acting pro se and resubmitted its postcharge, precomplaint statement of position to serve as an answer to the complaint. The Board agreed with the General Counsel that the only allegation the Respondent specifically denied in its postcharge statement was its failure to hire Randy Gambos as alleged in paragraph 10 of the consolidated complaint, and that it failed to deny the remaining allegations.

Charges filed by Sheet Metal Workers Local 33; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for partial summary judgment July 26, 2001.

Merrow Machine Company (34-CA-9476; 337 NLRB No. 54) Hartford, CT The Board, on the recommendation of the administrative law judge, dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Yasmin Rivera on September 29, 2000 because she claimed her right to a bonus under the Respondent's contract with Electronic Workers Local 249. [HTML] [PDF]

The General Counsel contended that the judge erred by failing to analyze this case under the Board's decision in Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). The Board found no merit in the General Counsel's contention. It held that the issue presented in this case is not whether Rivera was engaged in protected concerted activity in protesting the determination that she should not receive a bonus under the bonus provision of the collective-bargaining agreement but whether the Respondent's refusal to allow her to rescind her subsequent voluntary quit was unlawfully motivated. In resolving this issue, the Board determined that the judge correctly analyzed the case under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981) cert. denied 455 U.S. 989 (1982).

Charge filed by Yasmin Rivera, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Hartford, Aug. 16, 2001. Adm. Law Judge Joel P. Biblowitz issued his decision Oct. 26, 2001.

Bakery Workers Local 6 (Bachman Company) (4-CD-1060; 337 NLRB No. 52) Reading, PA Mar. 12, 2002. The Board determined that The Bachman Company employees who are represented by Bakery Workers Local 6 instead of Teamsters Local 429, are entitled to the work at the Reading facility of cleaning the Ishida Scale units on the Jax line and of stacking pretzels on wooden pallets. In making the award, the Board relied on the factors of employer preference, area and industry practice, and economy and efficiency of operation. [HTML] [PDF]

Guardian Automotive Trim, Inc. (25-CA-27095; 25-RC-9933; 337 NLRB No. 53) Evansville, IN Mar. 12, 2002. The Board adopted the administrative law judge's recommended Order and amended his conclusions of law, finding that the Respondent violated Section 8(a)(1) of the Act by threatening employees with loss of a planned bonus program, wage increases, and a plant air- conditioning project; by telling employees that collective bargaining would be futile and would inevitably lead to strikes; by telling employees that collective bargaining would start at "zero"; by threatening employees with loss of the Respondent's "open door policy" if the Union was successful; by telling employees that job losses would result from unionization; and by prohibiting employees from distributing union literature during nonwork time in the employee parking lot. The Board also set aside the election held on April 27, 2000, severed Case 25- RC-9933 from 25-CA-27095, and remanded 25-RC-9933 to the Regional Director to conduct a new election when he deemed it appropriate. [HTML] [PDF]

Charge filed by Electronic Workers (IUE); complaint alleged violation of Section 8(a)(1) and (3). Hearing at Evansville on March 19, 20 and 21, 2000. Adm. Law Judge Robert A. Pulcini issued his decision Dec. 28, 2001.

The Bauer Group, Inc., Bauer Communications, Inc., and Bauer Financial Reports, Inc. (12-CA-17150; 337 NLRB No. 50) Miami, FL Feb. 27, 2002. The Board, in this Supplemental Decision and Order, adopted the administrative law judge's recommended order with certain modifications, and ordered that the Respondent pay Charging Party Sangriale Fulger $6914 plus interest.[HTML] [PDF]

The Board agreed with the judge that the Respondent established that it would have terminated Fulger, a rate surveyor, when the survey room was closed on October 13, 1995. The judge concluded that she should be charged as unavailable for work for 3 days when she attended depositions related to her civil rights action against Respondent for her unlawful discharge and for 7 days when she attended the trial in that case. Accordingly, he reduced her gross backpay by $168 in the third quarter of 1995 and by $448 in the first quarter of 1996. The Board, however, found that the depositions occurred in the fourth quarter of 1995 and restored $168 to Fulger's backpay total for the third quarter and deemed it unnecessary to pass on the issue of whether she was unavailable for the 7 days she spent at the trial. The General Counsel contended that Fulger's backpay period began on November 29, 1994 and closed on May 18, 1998 and that the backpay due Fulger amounted to $26,652.

Hearing in Miami, July 22 and 23, 1999. Adm. Law Judge Richard J. Linton issued his supplemental decision Dec. 8, 1999.

Alliance Beverage Distributing Company, LLC(28-CA-16900; 337 NLRB No. 49) Phoenix, AZ Feb. 15, 2002. The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (3) of the Act by issuing a written warning to employee John Markiewicz on June 6, 2000 and discharging him on June 13 because he had engaged in union and protected concerted activities.[HTML] [PDF]

The General Counsel contended that the Respondent issued union steward Markiewicz an undeserved and unwarranted written warning because he concertedly complained to the Respondent regarding, among other matters, its changes in employee starting times, and its drug testing policies and practices. The General Counsel also contended that Markiewicz' repeated, vocal support for the Union generally and for improved wages, hours, and working conditions caused Respondent to single him out for disparate treatment and discipline. The Respondent claimed that the written warning resulted from Markiewicz' failure to abide by the company policy requiring employees to call with an explanation when absent from work and that he was subsequently fired for leaving work without permission.

Charge filed by John Markiewicz, an individual; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Phoenix, July 11 and 12, 2001. Adm. Law Judge Gregory Z. Meyerson issued his decision Sept. 14, 2001.